Trott v Director of Public Prosecutions and Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 24 August 2020
• Date: 24 August 2020
• Docket Number: Civil Jurisdiction 2020 No 123
• Court: Supreme Court (Bermuda)

[2020] Bda LR 47

In The Supreme Court of Bermuda

Civil Jurisdiction 2020 No 123

Between:

Jahmico Trott

Plaintiff

and

Director of Public Prosecutions

and

Attorney-General of Bermuda

Defendants

Mr M Pettingill for the Plaintiff

Mrs S Dill-Francois for the Defendants

The following cases were referred to in the judgment:

R v Bain [1992] 1 SCR 92

R v Johnstone (1986) 26 CCC (3e) 401

Tyson v R [2018] 5 LRC 270

Porter v Magill [2002] 2 AC 357

Lawal v Northern Spirit Limited [2003] UKHL 35

Millar v Dickson [2001] UKPC D4

Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451

Lenihan v LSF Consolidated Golf Holdings Ltd [2007] Bda LR 49

R v Mason [1980] 3 All ER 771

Jury selection process — Bias — Peremptory challenges, challenges for cause and stand-by — Equality of arms

JUDGMENT of Hargun CJ

Introduction

1. These proceedings concern a constitutional challenge to the validity of the jury selection process contained in section 519(2) of the Criminal Code 1907 (the “Code”). The issue for the Court is whether section 519(2) of the Code, which grants the Crown the right to stand down any juror until such time as their name is called a second time, while the accused is only allowed three peremptory challenges, infringes the accused's right to be tried by an independent and impartial jury as guaranteed by section 6(1) of the Bermuda Constitution Order 1968 (the “Constitution”).

2. At the conclusion of the hearing of this action on 17 July 2020 the Court made an Order that:

• i. For the reasons to be set out in the Judgment of the Court, section 519(2) of the Code is inoperative to the extent that it allows for a disparity between the amount of stand-by challenges to the Crown, and challenges without cause afforded to the accused.

• ii. The above declaration is suspended pending the passing of the legislation to give effect to it for a period of three months.

• iii. Liberty to apply in relation to costs.

3. I now set out the reasons which persuaded the Court to make the Order declaring that section 519(2) of the Code is inoperative.

Procedural and factual background

4. The Plaintiff has been charged in the Supreme Court with five counts on indictment, namely, (1) attempted murder, (2) using a firearm whilst committing an indictable offence, (3) carrying a firearm with criminal intent, (4) corruption of a witness and (5) intimidating a witness.

5. The Plaintiffs trial was fixed to commence on Friday 6 March 2020, and on that date, Counsel representing the Department of Public Prosecutions (“DPP”) and Counsel representing the Plaintiff were provided with a list of 44 names that made up the jury ballot.

6. The Plaintiff maintained his not guilty pleas to all counts on the indictment, in the presence of all potential jurors in the pool, who were seated in the public gallery.

7. The presiding Judge addressed the potential jurors advising them, inter-alia, to consider whether a reasonable observer would find their presence on the jury to give rise to an appearance of bias, and also to consider whether any of them held any views so strongly that they were unable to disregard them, irrespective of the facts and the law. Thereafter the jury selection began, during which Counsel for the DPP stood down a total of 10 jurors. Out of the 10, all of them appeared to be people from Afro-Caribbean descent and 9 of them were male. The Plaintiff is an Afro-Caribbean male.

8. On Monday, 9 March 2020, the Plaintiff's Counsel advised the presiding Judge that the Plaintiff intended to challenge the validity of the Crown's use of the right to stand-by. On 13 March 2020, the Plaintiff commenced these proceedings by filing an Originating Summons seeking the following relief:

• i. A declaration that section 519(2) of the Code is unconstitutional, unlawful and inoperative in that it contravenes certain fundamental rights and freedoms under the Bermuda Constitution Order 1968, namely those rights contained in section 6(8);

• ii. A declaration that section 519(2) of the Code and the process of the Crown to have unlimited stand-by challenges to jurors without cause contravenes or is repugnant to certain fundamental rights at common law, including rights of natural justice, equality of treatment and the rule of law, and is an abuse of process;

• iii. A declaration that the fundamental principle of equality of arms and the constitutional right to a fair trial was contravened by the Crown at the criminal trial of the Plaintiff, in that the reasonably informed fair-minded observer would consider that the selection process of an impartial tribunal could be perceived to be biased; and

• iv. An Order that the un-sworn jury panel in the criminal trial R v Jahmico Trott, Criminal Jurisdiction No 27 of 2017 and No 10 of 2019 be dismissed and a fresh jury selected and empanelled.

9. At the hearing of this matter both Counsel agreed that the Court should approach this matter as a matter of principle and not based upon the allegations in relation to the motivations behind the selection of particular jurors. Accordingly, the result in this Judgment is dictated by the terms of section 519(2) of the Code, and not by any consideration that the exercise of the right to stand-by was in any way abused in this case.

The Statutory Provisions

10. The constitutional provision relied upon at the hearing is section 6(1) of the Constitution which provides:

“If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

11. The qualification and liability for jury service, the circumstances in which a person is disqualified for jury service and the ability of the Revising Tribunal to prevent otherwise qualified persons from serving on a jury are set out in section 3 of the Jurors Act 1971 which provides:

“3 (1) Every person —

• (a) who is not more than 70 years of age; and

• (b) who is registered as a parliamentary elector in a parliamentary register under the provisions of the Parliamentary Election Act 1978,

shall, unless disqualified by virtue of subsection (2), be qualified for, and (unless exempted or excused under or by virtue of any of the succeeding provisions of this Act) shall, if selected, be liable to, jury service.

(2) A person shall be disqualified for jury service —

• (a) if he is unable to read and write the English language; or

• (b) if he is blind, deaf or dumb or is suffering from mental disorder; or

• (c) if he is for the time being detained in a prison or other place of detention or in a hospital and receiving treatment primarily for mental disorder; or

• (d) if he has, since he attained the age of sixteen years, been convicted (whether on indictment or otherwise) of an offence punishable with death or with imprisonment for a term of three years or more, or, if he has, at any time during the immediately preceding seven years, been convicted (whether on indictment or otherwise) of an offence punishable, for a first offence, with imprisonment for a term of twelve months or more, and —

  • (i) he has not received a pardon in respect of that conviction; or

  • (ii) that conviction has not been quashed on appeal.

(3) Notwithstanding anything in the foregoing provisions of this section, a person otherwise qualified for jury service shall not be returned to serve as a juror unless the Revising Tribunal sitting in pursuance of section 8 certify that, in their opinion —

• (a) he is a person of reputed honesty, integrity and intelligence; and

• (b) he is in all other respects a fit and proper person to serve as a juror.”

12. Duties of the Revising Tribunal are further particularised in section 8 of the Jurors Act 1971 which provides that:

“8 (1) It shall be the duty of the Revising Tribunal to sit during such period as the Chief Justice may determine to scrutinize the preliminary list and to revise the list by deleting therefrom the names of persons whom the Revising Tribunal are not able to certify —

• (a) to be, in their opinion, persons of reputed honesty, integrity and intelligence; and

• (b) to be, in their opinion, fit and proper persons to serve as jurors.

(2) For the purpose of exercising their functions under this section the Revising Tribunal may summon any person named in the list to appear before them and may conduct such examination of that person as they think fit.

(3) A summons under subsection (2) shall be served personally.

(4) The Revising Tribunal may call upon the Registrar for such advice and assistance as they may deem necessary for the purpose of exercising their functions.

(5) Where the Revising Tribunal are able to certify that a person who is qualified for jury service as aforesaid is, by reason of his education, qualifications, occupation or experience, a fit and proper person to be a special juror, then the Revising Tribunal shall record that fact on the preliminary list.

(6) The Revising Tribunal, upon completion of their revision of the preliminary list in accordance with the provisions of this section, shall cause copies of the list as revised by the Revising Tribunal to be signed by the Chairman and forwarded to the Registrar.”

13. Section 13 of the Jurors Act 1971 which deals with the selection of jurors to the panel of jurors and stand-by jurors provides:

“13 (1) The Registrar, on such date as the Chief Justice may by notice in the Gazette appoint, shall select in the manner hereinafter provided the panel of jurors for any session.

(2) On the day appointed under subsection (1), the Registrar shall, in premises open to the public and in the presence of a justice of the peace nominated by the Chief Justice, by means of a random number table or such other method as the Chief Justice may direct, select at random from among all the names on that day included in the approved list —

• (a) thirty-six names, to comprise the...