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Jury selection ruling ‘significant’ beyond Bermuda

The significance of Chief Justice Narinder Hargun's ruling that Bermuda's jury selection process ran counter to the Constitution extended beyond the island, a defence lawyer said yesterday.

Mark Pettingill said: “It is a hugely significant and in-depth judgment that is not only significant for Bermuda, but for any jurisdiction whose jury selection process remains archaic.”

He added: “The in-depth nature of the review of the law is what will make it precedent-setting for other jurisdictions that remain behind the times.”

Mark Pettingill was speaking after Mr Justice Hargun released a 24-page written document that outlined the reasons for last month's decision.

Mr Pettingill launched a constitutional challenge to the jury selection process in March on behalf of his client, Jahmico Trott.

The Chief Justice ruled in July that section 519 (2) of the Criminal Code should be struck down because it breached the Bermuda Constitution, which guarantees an accused person “a fair hearing within a reasonable time by an independent and impartial court established by law”.

The declaration was suspended pending the passing of legislation to give effect to it.

The axed Criminal Code provision allowed prosecutors to stand down up to 36 potential jurors — but defence counsel could only challenge three without reason.

Mr Pettingill asked the court to consider if the existing jury selection process would lead a fair-minded and informed observer to conclude that there was a real possibility that the jury may not be impartial.

He said the process was in breach of the fundamental principle of “equality of arms” enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

He added that the principle was essential for a “fair hearing”.

Mr Pettingill highlighted a decision of the Court of Appeal of the Eastern Caribbean Supreme Court, sitting in the British Virgin Islands, where the court held that a similar right of the Crown to “standby” jurors was in breach of a section of the country's constitution.

The section was identical to Bermuda's legislation.

Mr Justice Hargun wrote: “I am satisfied that the disparity between the accused person's and the Crown's right to challenge jurors gives rise to a real possibility that the jury may be biased in favour of the Crown.

“Such a state of affairs offends the appearance of impartiality on the part of the jury, which is an essential element of the fundamental right to a fair hearing by an independent and impartial tribunal guaranteed by section 6 (1) of the Bermuda Constitution.

“It follows that the provisions of section 519 (2) of the Code are inconsistent with the fundamental right to a fair trial established by section 6 (1).”

Mr Justice Hargun added: “I am also satisfied that the extreme disparity created in the jury selection process also results in the infringement of the principle of equality of arms by making the position of the accused extremely weaker than that of the Crown, and results in a breach of the right to a fair trial under article 6 of ECHR and the right to a fair trial established by section 6 (1) of the Constitution.”

Mr Justice Hargun reviewed case law and practice in the United Kingdom and Canada on the Crown's right to standby jurors.

The Chief Justice said that the right of standby still existed in the UK, but its use was “limited to those cases which involve national security or terrorism”.

He added it has been customary in the UK for the Crown to use the right to standby, or to challenge a juror for cause, “only sparingly and in exceptional circumstances”.

Mr Justice Hargun said: “It is generally accepted that the prosecution should not use the right in order to influence the overall composition of the jury with a view to tactical advantage.”

Mr Justice Hargun also reviewed, and rejected, a variety of reasons included in previous cases that tried to justify the existence of the disparity in the jury selection process.

But he decided that they “no longer provide satisfactory justification for the continued use of the practice”.

Mr Justice Hargun engaged in a review and analysis of the UK, Canadian, Eastern Caribbean and Bermuda case law authorities on the issues of apparent bias on the part of the jury and equality of arms.

He also highlighted Bermudian legal decisions that “recognise that section 6 (1) of the Constitution providing for the fundamental right to a fair hearing within a reasonable time by an independent and impartial court established by law, incorporates the equality of arms principle enunciated by the ECHR as part of the right to a fair trial under article 6 of ECHR”.

The Crown did not mount a challenge to Mr Pettingill's case on behalf of his client.

Mr Trott is charged in the Supreme Court with attempted murder, use of a firearm in an indictable offence, possession of a firearm with criminal intent, corruption of a witness and intimidation of a witness.

A trial date is still to be set.

It is The Royal Gazette's policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

Chief Justice Narinder Hargun

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Published August 25, 2020 at 9:00 am (Updated August 25, 2020 at 9:30 am)

Jury selection ruling ‘significant’ beyond Bermuda

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