Special Report: Jury Reform by BVI Beacon

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Thursday, April 17, 2014 |

Tortola island profile now under way

SPECIAL REPORT: JURY REFORM

Can nonbelongers serve on juries?

To be funded mostly by private donors By CHRYSTALL KANYUCK ckanyuck@bvibeacon.com After years of work compiling environmental, historical and cultural information about various islands in the territory, the Island Resources Foundation is tackling the largest and most difficult study — the one to cover Tortola. This profile is being funded almost entirely by private donors. Previous profiles for Jost Van Dyke, Anegada and Virgin Gorda received most of their funding from the United Kingdom and Virgin Islands governments, with private donors contributing a smaller share. Initially, the nonprofit foundation thought the Tortola profile would proceed the same way, IRF Vice President Judith Towle said this week. “Later, as [the VI government] got into the budget process, there were so many other constraints on

Profile see page 12

Law says yes, Registry says no By KEN SILVA ksilva@bvibeacon.com

Photos: TODD VANSICKLE Mace Marx paints one of several murals on the concrete wall outside of the Virgin Gorda Recreation Grounds on Saturday.

The paintings on the wall New murals come to VG By TODD VANSICKLE tvansickle@bvibeacon.com

n Saturday morning two men driving a small, white truck stopped outside of the Virgin Gorda Recreation Grounds and stared out the driver’s-side window. They talked amongst themselves as they continued to drive slowly, looking intently at Mace Marx, a blonde woman standing on the sidewalk with several paintbrushes in her hand. “Looking good,” the driver shouted out the window. “Thank you,” responded Ms.

Marx, who had a streak of turquoise paint on her cheek. “You are really doing a great job,” the driver added. The two men were impressed

with the colourful murals that Ms. Marx had been painting during the past eight days on a portion of

Murals see page 26

All nine jurors had been chosen for the first case of the February Assizes, and the burglary trial of Elrys Todman was about to start. But then a juror announced that he had a close relationship with the alleged victim. “She is like a mother figure,” he told the court. To prevent a potential conflict of interest, High Court Justice Nicola Byer discharged him from the jury, and the trial proceeded with eight jurors instead of the customary nine. A similar scene played out in two more cases during the assizes. In the indecent assault trial of Walter Cameron, the original foreman of the jury belatedly realised that he knew the complainant’s boyfriend. That trial also proceeded with only eight members. In the Jessroy McKelly murder trial, the entire jury had to be quashed and reselected after a juror said he was a cousin of the deceased. The trial was

Juries see page 24

Page 24 | Thursday, April 17, 2014 | The BVI Beacon

Special Report

Juries: Under law, non-belongers allowed to serve Continued from page 1 delayed four days. In part because of the territory’s small size, such difficulties are common in the High Court, and they have caused some attorneys to advocate for expanding the jury pool by allowing non-belongers to serve. Others disagree, and say that the problem is exaggerated.

Legislation Under the current legislation, the jury pool should be larger than it is. The Jury Act 1914 requires the High Court Registry to choose candidates from a list of all eligible jurors in the territory — a category that includes non-belongers who have lived in the Virgin Islands for at least 10 years. But no such list exists. Instead, potential jurors are selected from a list of registered voters, a practice that excludes long-term non-belonger residents. Asked why the Registry selects candidates in this manner, Deputy Registrar Sarah Benjamin referred this reporter to a 2008 ruling in the case of DPP v. William Penn. In that case, the late J.S. Archibald, QC, represented Mr. Penn, a Virgin Gorda resident who was convicted of burglary in 2006. When Mr. Archibald asked to inspect the jurors register after the case was closed, the registrar told him that no such list existed. “When I took up office here, I met the practice (which I enquired about and was advised that had been in place for innumerable years) of using the voters list for choosing the names of persons to sit as jurors in the assizes,” the then-registrar wrote in a letter to the attorney. “Consequently, there is no Jurors Register or Magistrates’ Revision Certificate to be perused or inspected.” Mr. Archibald subsequently appealed to the Eastern Caribbean Supreme Court of Appeal: The jury, he argued, had been improperly selected because it had been chosen from the voters list and not from a list of qualified jurors made by the registrar. The appeals court agreed, tossing out Mr. Penn’s conviction and ordering a fresh trial.

STALLED REFORM Jury Act 2009 would have made broad changes By KEN SILVA ksilva@bvibeacon.com

wo years after the Law Reform Commission recommended jury reform in 2007, the House of Assembly introduced the Jury Act 2009. The law, which never passed, would have repealed and replaced the Jury Act 1914, making changes in several areas: • who qualifies to serve on a jury; • how many jurors can be challenged by prosecutors; • the minimum number of jury candidates to be summoned before a trial; and • the penalties for missing jury duty and other misconduct.

JURY ACT 1914 JUROR QUALIFICATIONS The existing law lays out specific qualifications for potential jurors, although the High Court Registry bypasses those qualifications and instead picks candidates from the list of registered voters (see main story). Under the Jury Act 1914, jurors have to be between the ages of 21 and 60; own or have in trust property of at least $240; rent a land or tenement worth at least $48; or make income of at least $140 per year. While those 100-year-old monetary requirements are so low they’re largely obsolete, they could still disqualify certain people, such as stay-at-home spouses who don’t own or rent property. There are also certain disqualifications for potential jurors under the current law: aliens who haven’t been domiciled here for 10 years; people disabled by unsoundness of mind, or by deafness, blindness, or other “permanent infirmity of body;” people convicted of any treason, felony, or other “infamous crime” who have not received a pardon; and people who cannot read or write English.

JUROR CHALLENGES Under current law, the Crown is allowed to challenge the selection of an unlimited number of jurors for any reason, while the defence is only allowed to challenge three.

NUMBER OF CANDIDATES Currently, at least 30 jury candidates must be called for a trial. However, the judge is permitted to call for more, and at least 50 candidates routinely pack the High Court chambers before the start of trials.

PENALTIES In 2005, the Jury Act 1914 was amended to increase the fines for those who don’t answer a summons to court from $4.80 to $250, and from $240 to $400 for candidates who are actually selected to serve and don’t answer; refuse to enter the jury box or be sworn in; leave without permission; or don’t return after an adjournment.

JURY FRAUD The existing law doesn’t have a provision to specifically penalise jury fraud.

PROPOSED JURY ACT 2009 JUROR QUALIFICATIONS The proposed 2009 law would require potential jurors to be selected from the voters list, codifying the High Court Registry’s current method. Qualifications for voters are laid out in Section 68 of the 2007 Constitution: One has to be at least 18, a belonger, and domiciled here. Disqualifications would be similar to the ones already in place, with a few exceptions: While current law disqualifies any person with a physical or mental disability, the 2009 proposal would have inserted a caveat that the injury has to impair the person from being able to undertake the duties of a juror. Also, a person convicted of a crime punishable by 12 months or longer in prison would only be disqualified for five years from the date of his or her offence. Finally, the maximum age for someone to serve would be increased to 70. While those three changes would loosen the disqualifications in certain areas, a new stipulation would tighten them in another area by disqualifying anyone who is declared bankrupt.

JUROR CHALLENGES Under the proposed 2009 law, each party would be allowed to challenge three jurors for any reason.

NUMBER OF CANDIDATES At least 60 jury candidates would have to be called for a trial under the proposed law.

PENALTIES The 2009 law would further increase fines for jurors, from $250 to $2,000 for people who don’t answer a summons, and from $400 to $3,000 for those who refuse to serve when called to the box or leave the court before they have been discharged.

JURY FRAUD The proposed 2009 law would penalise jury fraud with a maximum $3,000 fine and two-year prison sentence. The offence would include serving when one knows he or she isn’t qualified; interfering with a proceeding before the court; trying to corruptly influence another juror; sending someone else to serve under one’s name; or serving under someone else’s name.

However, the director of public prosecutions appealed that decision to the territory’s highest court, the London-based Judicial Committee of the Privy Council. The Privy Council overturned the ECSCA’s ruling: The original jury was kept intact and the conviction was allowed to stand.

Privy Council But that doesn’t mean that the Privy Council ruled that the Penn jury was correctly selected. In fact, the court agreed that the Registry had selected the potential jurors improperly. But the Privy Council said that the error did not affect the partiality of the jury in the Penn case. “Highly regrettable though it was, there is no ground for considering that the default had or could have had any impact on the eligibility to serve, randomness, impartiality or ultimate decision of all or any of the members of the jury,” Lord Mance wrote in the decision. A year later, VI legislators considered reforms that would codify the existing jury selection process: The proposed Jury Act 2009 would require jurors to be selected off the voters list. But neither that law nor any subsequent reforms have been instituted. In the 2012 Speech from the Throne, the government announced plans to amend the existing law, but the promise was dropped in the 2013 Throne speech (see sidebar at left for more information on proposed jury reforms). Arliene Penn, government’s communications director, did not answer queries about the current status of jury reform.

Non-belongers Lawyers in the territory disagree about whether or not nonbelongers should be allowed to serve on VI juries. Defence attorney Stephen Daniels said that while some reforms in the proposed 2009 act are necessary, barring non-citizens from juries is not one of them. “Once you’re here ten years and you’re paying your social security and taxes, you should be on the jury,” he said. “The fact that you’re supposed to have a trial of

Juries see page 25

Special Report

The BVI Beacon | Thursday, April 17, 2014

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LOOKING BACK 100 YEARS • 1914: Jury Act 1914 is instituted. 1963: The Legislative Council amends the act, allowing women to serve as jurors. • 1990: Then-Attorney General Jack Smith-Hughes suggests abolishing jury trials altogether: Almost every jury formed in the territory includes at least one friend or relative of somebody involved in the case, he claims. The recommendation is dismissed after backlash from the legal community. • 2006: Attorney J.S. Archibald challenges the burglary conviction of his client, William Penn, arguing that the jury was improperly selected because it was chosen from the voters list and not a list of all eligible jurors in the territory as mandated by law. Photo: KEN SILVA The High Court in Road Town.

Juries

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your peers and you have many people here who are residents but not belongers, you can’t get a trial in front of your peers.” Mr. Daniels also said adding non-belongers to the mix would help address conflicts like the ones that plagued the February Assizes, when three juries were found to include a member with a relationship with a defendant or complainant. The size of the jury pool has been discussed since at least the 1990s, when then-Attorney General Jack Smith-Hughes suggested that jury trials be eliminated altogether: At the time, he claimed that it’s difficult to have a jury without “at least one member” who is “a friend or relative of somebody involved in the case,” according to Beacon archives. But another defence attorney, Jamal Smith, said this week that the size or impartiality of the jury pool isn’t an issue and that he doesn’t see the need for an expansion. “I think the problem people have is respect to sometimes the quality and calibre of members of the jury, and I think it’s unfair — not only unfair, but discriminatory — to say that members of the jury pool, because they’re on the voters list, creates the problem,” he said.

AROUND THE REGION How other jurisdictions select a jury pool By KEN SILVA ksilva@bvibeacon.com

he process of selecting juries varies in other countries and territories. Some jurisdictions bar non-citizens entirely, while others allow them to serve after being resident for as few as two years. The issue arose in the Cayman Islands as recently as three years ago, when the territory’s chief justice, Anthony Smellie, suggested that non-citizens be allowed to serve, according to an article published in Cayman News Service. The publication noted that only 15,000 people were eligible to serve out of a population of nearly 55,000 (about 27 percent). That’s an even smaller proportion than the Virgin Islands, which selects its jurors from a pool of about 10,000 of its ap“Whether you have persons from the voters list or off the voters list, you’re going to have good jurors and bad jurors.” Mr. Smith also said the fact that only citizens can serve on juries doesn’t affect the fairness of trials for defendants who are non-belongers. “People need to realise what

• 2007: The Eastern Caribbean Supreme Court of Appeal sides with Mr. Archibald, ruling that since the jury was improperly selected it had no jurisdiction. Mr. Penn’s conviction is overturned. • 2007: The Law Reform Commission recommends reforms to the Jury Act 1914 in a report to the House of Assembly.

proximately 28,000 residents (about 35 percent). However, Mr. Smellie’s suggestion never came to pass. Other territories have laws similar to the VI’s Jury Act 1914. Montserrat, for instance, has the same provision disqualifying “aliens who are not domiciled in Montserrat and have not been so for at least ten years.” As in the VI (see main story), it would appear that an alien who has been domiciled there for ten years should be qualified. Antigua and Barbuda, as well as Trinidad and Tobago, have similar provisions but don’t require aliens to reside in those places for as long. In Antigua and Barbuda, non-citizens can serve if they have lived there for five years; in Trinidad and Tobago two years of residency suffices. Other jurisdictions, including the United Kingdom and the Turks and Caicos Islands, explicitly require jurors to be registered to vote.

Dominica’s and Grenada’s laws prohibit aliens from serving on a jury, and Jamaica’s law disqualifies anyone who is not a Commonwealth citizen. In the United States, non-citizens are not allowed to serve as jurors. However, that almost changed recently in California. The state — which has the largest immigrant population in the US and whose 27 percent foreign-born population is twice that of the national average — passed a law last year that would extend jury duty to the 3.5 million legal residents there, who are not citizens. The state’s governor, Jerry Brown, vetoed the law, saying that jury duty is a responsibility of citizenship. “This bill would permit lawful permanent residents who are not citizens to serve on a jury,” he wrote in his veto message. “I don’t think that’s right.” The Beacon’s findings are based on the latest published laws in each jurisdiction. They may not reflect actual practices.

• 2011: In his Speech from the Throne, Governor Boyd McCleary announces that the government plans to amend the Jury Act 1914.

the function of a jury is: The jury’s role is to try a fact,” he said. “They simply have to decide whether the person is telling the truth or not. Belonger or non-belonger, it doesn’t matter who it is if all the evidence they’re looking at points to the defendant being guilty.”

BVI Bar Association President Arabella di Iorio said she doesn’t have a position on the issue because she doesn’t practise criminal law. Since most attorneys in the territory are members of the Bar, she added, there are diverging opinions within the organisation.

• 2012: Mr. McCleary promises in his Throne speech that the government will replace the existing legislation with the Jury Act 2012.

• 2008: The territory’s highest court, the Judicial Committee of the Privy Council, overturns the Eastern Caribbean Supreme Court of Appeal’s ruling in the William Penn case, saying that even though the Penn jury was improperly selected, this fact did not influence the partiality of the jurors themselves. • 2009: The HOA introduces the Jury Act 2009, which would have codified the High Court Registry’s longstanding practice of gathering its pool of jury candidates from the list of registered voters, as well several other reforms (see sidebar on facing page). The act is never passed.

• 2013: No mention of reforming or replacing the Jury Act 1914 appears in the Speech from the Throne.