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House supports jury selection changes

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Legal changes to level the playing field in jury selection have won unanimous backing in the House of Assembly.

The Criminal Code Amendment No 2 Act 2020 removed the right for prosecutors to “standby” an unlimited number of potential jurors without reason.

Kim Wilson, the Minister of Health, said the change would address a longstanding inequality in the island's legal system.

She said: “There is a disparity in the jury selection process that could give the appearance of bias in favour of the Crown.”

Jurors are drawn at random from a pool, but the Crown can call on jurors to “stand down” without any reason.

Potential jurors who are stood down can only be called again if the pool is exhausted without a 12-strong jury being formed.

The Crown can still challenge the selection of a juror, but they must explain to the court why the potential juror was not qualified or would be biased.

But defence counsel could only challenge three jurors without reason.

Now the prosecution and defence would be able to dismiss up to three potential jurors without reason during the selection process.

That figure would increase to five in cases where the maximum penalty was life in prison.

Ms Wilson said the amendments would also remove a reference to the death penalty and remove a “sexist” provision that allowed the creation of an all-male jury in cases “where matters of an indecent nature are likely to arise”.

Scott Pearman, the Shadow Minister of Legal Affairs, said the amendments were long overdue and that the standby system had already been removed in other jurisdictions.

Mr Pearman said: “This is something that is bringing the Criminal Code up to modernity.”

He added that it was vitally important for the jury process to be viewed as fair for all, and the amendment would help to ensure that is the case.

Michael Scott, a former attorney-general and justice minister, said prosecutors had for centuries used the jury selection process to “weed out” jurors who might be sympathetic towards the defendant.

Mr Scott added: “It harms and has harmed many defendants that have come before the courts.”

Rolfe Commissiong, a government backbencher, added that it was a shame that it took Bermuda until 2020 to do away with a scheme that “egregiously tilted the scales of justice” and its removal was “no small step” away from systemic racism.

The amendments came just a week after the Supreme Court found that the rule went against the principle of a defendant's right to a fair trial.

Chief Justice Narinder Hargun ruled that a section of the Criminal Code on juries was inoperative, because it allowed a difference in the number of juror challenges available to the defence and “standbys” that could be made by the prosecution.

The judgment came after a constitutional application was made by Mark Pettingill on behalf of Jahmico Trott, which was not opposed by the Crown.

Mr Trott, 32, had denied charges of 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.

Mr Pettingill said that during jury selection for Mr Trott's Supreme Court trial prosecutors “stood by” ten potential jurors, all of them black people.

He did not accuse the Crown of wrongdoing, but maintained the circumstances raised concerns about the appearance of bias and “equality of arms” — that there should be a level playing field.

Kim Wilson, the Minister of Health (File photograph by Blaire Simmons)
Scott Pearman, the Shadow Minister of Legal Affairs

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Published July 27, 2020 at 9:00 am (Updated July 27, 2020 at 8:05 am)

House supports jury selection changes

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