Introduction
Does trial by jury remain an indispensable democratic safeguard, or has this centuries old institution become outdated and ill-suited to the complexities of modern criminal justice?
Trial by jury may be regarded as the pinnacle of democratic participation within Malta’s judicial branch due to the fact that ordinary citizens are enlisted to determine an accused’s guilt or innocence. Following a jury’s guilty verdict, the Court then proceeds to impose a sentence onto the accused. Historically, the trial by jury system, as regulated by the provisions of the Maltese Criminal Code, was first introduced in Malta in 1815 and is reserved for only the gravest and most heinous of crimes (1).
Due to ongoing high profile criminal cases in the law courts, with a primary focus on the trial of Maltese businessman Yorgen Fenech against charges that he masterminded the murder of journalist Daphne Caruana Galizia, the spotlight has once again been directed towards the trial by jury system, and debate has sparked amongst the general public and legal practitioners on whether this system should retain its place in modern juridical proceedings.
The Downsides of a Trial by Jury
One of the principal arguments in favour of abolishing trial by jury concerns the absence of formal legal training among jurors. Unlike judges and magistrates, who acquire years of legal education and practical experience before assuming judicial office, jurors may be called upon, without any comparable preparation, to evaluate complex evidence and determine whether the prosecution has proved each element of an offence beyond reasonable doubt.
Judges and magistrates receive ongoing education through the Judicial Studies Committee, making them better equipped to deal with complicated legal and evidential questions. Serious jury trials which may cover criminal law matters such as money laundering, bribery, misappropriation and complex financial crime, involving accounts, balance sheets and forensic evidence may require the necessary skills to analyse the circumstances.
Although the presiding judge provides directions on the applicable law, such directions cannot realistically reproduce the knowledge, experience and disciplined method of analysis developed through professional judicial training. Being selected to serve is therefore not merely daunting for the juror but also places an accused person’s liberty in the hands of individuals who may never previously have encountered the legal principles they must apply.
A more fundamental concern is the degree of inconsistency inherent in the random composition of a jury. Jurors inevitably bring different levels of education, reasoning ability, personal experience, moral outlook and conscious or unconscious bias into the courtroom. Consequently, the same body of evidence may be understood and assessed very differently by two separately constituted juries. Materially similar cases may therefore produce conflicting verdicts, not because the applicable law or evidence is meaningfully different, but because different individuals happened to be selected. The administration of criminal justice should operate consistently and predictably and consequently an accused person’s fate should not depend upon the accidental composition of a jury. Whilst judges and magistrates are not immune from subjectivity or error, their decisions are nevertheless constrained by formal legal experience and training.
A further argument against trial by jury arises from the transformation of the modern media landscape. The traditional jury system rests upon the assumption that jurors enter the courtroom without any preconceived view of the accused or the alleged offence and determine the case exclusively by reference to the evidence produced at trial. In the age of social media, that assumption is increasingly detached from reality. The moment a serious crime occurs, information, allegations, photographs and commentary may be circulated across online news platforms and social media, often long before criminal proceedings begin. In a small jurisdiction such as Malta, it may be particularly difficult to identify jurors who have remained entirely unaware of such high profile cases.
Furthermore, even the protective measures intended to shield jurors from external influence may themselves impose considerable psychological strain. During a jury trial, jurors may be sequestered in a hotel, separated from their ordinary family and professional lives, denied access to their mobile phones, the internet and Maltese media, and permitted only limited contact with relatives. Their movements outside court controlled premises are also supervised. Although these restrictions serve the legitimate purpose of protecting the integrity of the proceedings, prolonged isolation and the sudden loss of personal freedom may make jury service mentally and emotionally exhausting. That burden becomes substantially greater when a trial continues for weeks or months.
This raises legitimate concerns as to whether even a juror who approaches the proceedings conscientiously and objectively at the outset can preserve the same degree of concentration, emotional resilience and analytical independence throughout a prolonged trial. Accumulated fatigue may affect a juror’s ability to recall evidence, engage fully in deliberations or resist pressure to conform to the emerging majority view. It may also create an unconscious desire to bring the process to an end and return to ordinary life. The concern is therefore that safeguards intended to preserve impartiality may, when maintained over an extended period, create conditions capable of weakening the quality and independence of the very decision-making process they are intended to protect.
The foregoing concerns are not exhaustive. Further questions arise from the fact that juries ordinarily provide no reasons for their verdicts, that a valid verdict may be returned by only six of nine jurors; and that deliberations may be shaped by dominant personalities, group conformity, emotional reactions, and even that in the context of Malta’s size and societal behaviour, jurors may also experience community pressure or fear of repercussions. Nor should the practical burden be overlooked, primarily owing to the fact that financial compensation owed to jurors is inadequate, notwithstanding the civic character of the duty, while service remains compulsory. Each of these matters raises further legitimate concerns regarding the continued operation of the jury system, even if they cannot all be examined fully within the scope of this article.
Should Judges Replace Jurors?
The question on how the trial by jury system may be improved may be tackled from several angles. Undoubtedly however, the primary question which should be asked is whether judges’ roles in the jury system are to be further strengthened, or else serve to replace the jury system completely.
As proposed by law professor Dr Kevin Aquilina the establishment of a commission to conduct an in-depth review of Malta’s jury system could serve to address the shortcomings of the current trial by jury system (2). Dr Aquilina highlights that the commission should focus on substantially increasing juror compensation, limit jury trials to the most serious offences, particularly offences punishable by life imprisonment and serious national security and addressing the significant backlog and long delays before jury trials commence. The commission may also determine that the trial by jury system ought to be modified in part or abolished in full, and enlist professional judges to determine criminal guilt. As observed in other criminal law jurisdictions, and as shall be hereafter analysed, such a conclusion is feasible, but would then require stronger transparency and judicial accountability safeguards, as considerably more power would be vested within Malta’s judiciary (3).
Comparative Analysis
There are several principal reform models which Malta could comparatively study if it were to reconsider the present system of trial by jury. The most far-reaching option would be the complete professionalisation of criminal trials, whereby questions of guilt would be determined exclusively by members of the judiciary rather than by a jury of lay persons. Under such a model, an accused person charged with a serious offence could be tried either before a single professional judge or, particularly in respect of offences which are presently tried before a jury in Malta, before a panel of three judges.
Cyprus provides a particularly useful comparative model in this respect. Serious criminal offences are tried before an Assize Court (4) composed of professional judges rather than a jury. Such a structure demonstrates that it is possible, within a European legal system and one sharing important historical links with the common-law tradition, to entrust the determination of serious criminal responsibility entirely to professional judges.
A less radical alternative would be to retain an element of citizen participation while abandoning the traditional model under which guilt is determined exclusively by a jury of legally untrained persons. Malta could instead adopt a mixed judicial tribunal, drawing comparative inspiration from systems such as those operating in Germany, Japan and Norway. Under such a system, serious criminal cases could, for example, be heard by two or three professional judges sitting together with a smaller number of lay persons acting as judges. Rather than professional judges dealing solely with questions of law and lay persons separately determining questions of fact, all members of the tribunal would participate in the adjudicative process and deliberate collectively upon the accused’s guilt.
Another possibility would be to retain trial by jury as a general institution while removing particular categories of cases from its jurisdiction. Rather than abolishing juries, the proposed commission could identify proceedings in which the technical complexity, security implications or anticipated duration of the trial make determination by professional judges more appropriate. Comparative inspiration may be drawn from France, where certain particularly sensitive categories of serious criminal proceedings may be determined by the Cour d’assises (5), a set of specially constituted courts composed of professional judges rather than the ordinary lay-participation model applicable to other serious offences.
A Maltese version of this approach could provide that offences involving, for example, technically complex financial crime, organised crime, terrorism or national security, lengthy multi-defendant prosecutions, or other specifically prescribed categories of offences are tried before a professional judicial panel. Ordinary jury trials could nevertheless remain available for traditional offences such as homicide and other serious crimes where the factual issues are comparatively straightforward and where community participation is considered particularly important.
Conclusion
Ultimately, these aforementioned proposals present Malta with different answers to the same underlying question, that being whether citizen participation in serious criminal adjudication must necessarily take the form of the traditional jury. Complete professionalisation would prioritise judicial expertise; the mixed-tribunal model would combine expertise with public participation; while selective removal would preserve the existing system but recognise that certain modern criminal prosecutions may no longer be ideally suited to determination by a conventional jury.
The appropriate reform therefore need not be framed simply as a choice between retaining or abolishing trial by jury. A broader comparative examination shows that several intermediate institutional arrangements are available which the said proposed commission could take into consideration in order to introduce reform to the overall judicial system.
References
1 – Vanessa Grech, ‘Trial by Jury a Comparative Study’ (LL.D thesis, University of Malta 2017) 20.
2 – Dr Kevin Aquilina, ‘Does the jury system breach human rights?’ (The Malta Independent, 16th August 2026) https://www.independent.com.mt/articles/2026-08-16/blogs-opinions/Does-the-jury-system-breach-human-rights-6736292079.
