Finding enough impartial jurors to hear court cases in the territory has proved challenging in recent years, but a solution may be on the horizon as legislators this week debated a bill designed to widen the jury pool and make other related reforms.
The Virgin Islands Jury Act, 2022 — which Premier Dr. Natalio “Sowande” Wheatley introduced in the House of Assembly on Aug. 9 — would replace a 1914 law that leaders have described as outdated in many respects.
During an HOA debate following the bill’s second reading on Oct. 18, legislators expressed support for many of its measures but they argued over provisions designed to facilitate the addition of some non-belongers to the juror list.
For his part, Dr. Wheatley said he understands the need to address judicial officials’ complaints about the limited list of jurors and the challenge of finding candidates who don’t have connections to any of the interested parties in court cases.
He added that the second reading was delayed to allow the Deputy Governor’s Office to further consult the public on the proposed changes.
“Of course, persons raised concerns about the bill, and these are issues that we’ll have to deal with in debate and in the committee stage,” he said. “It is important to know that the current act is very old and in need of modernisation.”
Non-belongers excluded
Under the Jury Act 1914, the High Court Registry is required to select eligible jurors from a list that includes non-belongers who have lived in the VI for at least ten years. In practice, though, jurors historically have been selected from the list of eligible voters, which excludes long-term non-belongers.
Partly because of this issue, jury trials were temporarily halted in July 2019 after then-Director of Public Prosecutions Kim Hollis successfully challenged the jury list in High Court. In her challenge, she took issue with the use of the voter registry to select jurors.
A judge ruled in her favour, finding that the list formerly used for jury selection was unconstitutional. A new list of jurors was subsequently created, the Deputy Governor’s Office said in early 2020. But the office declined to make the list public or say whether it includes non-belongers.
Last year, the Commission of Inquiry reviewed the issue, and Commissioner Sir Gary Hickinbottom ultimately recommended considering a revised Jury Act.
In support of that recommendation, Sir Gary cited input from Director of Public Prosecutions Tiffany Scatliffe-Esprit.
“The jurisdiction of the BVI is small, and finding jurors who do not know and are unrelated to witnesses and the accused is challenging,” the COI report states. “These eligibility requirements have the effect of significantly restricting the size of the jury pool. The DPP considers that the eligibility criteria should be revised, e.g. to allow those aged 18 and above and those who have been resident for five years (as opposed to 10 years) to be jurors.”
In keeping with Sir Gary’s recommendations, the COI implementation framework agreed by the United Kingdom and VI governments gave the HOA a July 31 deadline to consider “revisions to the Jury Act, in consultation with the governor, to increase the size of the jury pool of jurors to ensure the jury system is effective.”
Proposed law
The proposed new Jury Act, like the existing law, would allow non-belongers who have lived in the territory for at least 10 years to serve on juries. But it also includes new provisions designed to facilitate this rule in practice, court officials explained during public meetings on the bill earlier this month.
The proposed law, for instance, would allow the jury selection panel to use additional methods to obtain information about potential jurors, including seeking input from the chief immigration officer, the registrar general, and the director of Social Security Board, officials said.
The bill would also create a “Jury Management Database” that would be published annually.
The new database would be maintained by the Supreme Court registrar and contain the “prescribed particulars” of qualified people, each of whom would be assigned a unique identification number.
To qualify, a person would have to be between the ages of 18 and 70 and be a belonger, hold a certificate of residence, be listed on the Register of Voters maintained under the Elections Act Revised Edition 2013, or be an ordinary resident in the Virgin Islands for at least 10 years.
Potential jurors could be disqualified for being unable to communicate in English; if a physical or mental condition impairs their ability to fully meet their duties; after being convicted of an unpardoned offence for 12 months’ imprisonment or more without pardon; upon declaring bankruptcy; for “having bad character;” or for currently appearing before the court in criminal proceedings.
HOA debate
During the Oct. 18 debate, Opposition Leader Julian Fraser asked why the jury pool is so small.
“There are a number of belongers in the territory who are eligible to vote and eligible to serve as jurors, but they’re not registered to vote, so they never get called,” he said.
He also questioned some of the reasons for disqualification, particularly bankruptcy and what he called the subjective nature of “having bad character.”
“No wonder they have a problem with limited options,” he added.
After reviewing the list of people exempt from jury service — which includes politicians, attorneys, police officers, medical practitioners, teachers, and their spouses — Mr. Fraser argued that there are underutilised belongers who could serve as jurors, and said he was hesitant to add even non-belongers who hold a certificate of residence.
“We need to ensure that persons charged with responsibility of creating the pool are exhausting the categories that are available to them before we go ahead and start thinking about increasing the pool, or adding categories, or diluting the requirements for particular categories,” he said.
Not everyone shared his reservations.
Health and Social Development Minister Marlon Penn pointed out that Virgin Islanders are not the only people going on trial.
“If the premise of a jury trial and fair trial is to have a cross-section of your community, we have to rethink what the cross-section of our community looks like,” he said. “We have to be mindful that our community is different. Our community is made up of a wide cross-section of individuals, and as we hear from the technocrats [there are] challenges that we’ve experienced over several trials where the trials are dismissed, trials were thrown out, persons were acquitted because you might find later on that there was a connection with someone who was on the jury to the defendant, or someone that gave witness has some type of connection.”
He said some flexibility must be allowed to ensure fairness and objectivity in the judicial process, especially considering the lengthy wait times some accused people spend on remand.
The premier said he agreed with Mr. Penn that legislators should question whether a non-belonger can have a fair trial when only belongers are permitted to be jurors.
“I think we have to have an open mind and a proper discussion. Yes, in most societies you will find that persons who are jurors are on the voters list,” he said, adding that in the United Kingdom a person does not have to be a citizen to be on the voters list. “We have to recognise our unique circumstance as a small territory with a large amount of the population that comes from other places.”
Eligible jurors
However, other fellow legislators shared Mr. Fraser’s concerns about expanding the pool.
Though the public had an opportunity to weigh in on jury reform during a virtual forum earlier this month, Junior Minister for Trade and Economic Development Shereen Flax-Charles said she was concerned that there was insufficient public consultation on the matter.
“We’ve left out a significant portion of our population who might be interested in serving on the jury but have not been given the privilege of public consultations but for one Zoom meeting,” she said, noting that she had found no proof of other public meetings supposedly held in 2009.
She added that more work needs to be done to educate community members about who qualifies for jury duty and what the obligation entails.
Government backbencher Vincent Wheatley (R-D9) said he didn’t necessarily oppose adding people ages 18 to 70 who have “been ordinarily resident in the territory for at least ten years” as described in the bill, but he said he would like to see additional qualifications added.
He also shared concern about the cost for sister island residents to serve and potential impact on small businesses required to continue paying employees while they fulfil their civic duties, particularly during the off season.
Opposition member Carvin Malone said he would not support adding 10-year residents or even people who hold a certificate of residence. He added that he was confident that enough eligible belongers could be found in the population following a proper review.
Judge-only trials
On Oct. 18, Mr. Fraser also shared his misgivings about the idea of trials without a jury, which he labelled a “travesty of justice.” Fellow legislators shared his concerns.
The COI framework also gives the House a Nov. 30 deadline to consider granting the court wider powers to hear judge-only criminal trials.
This idea, too, accords with input from Ms. Scatliffe-Esprit, who recommended greater discretional power for the court to allow such criminal trials in cases of murder, gang violence and sexual offences, according to the COI report.
“She said that, in her experience, jurors were reluctant to serve when these sorts of offences come to trial,” the report states. “Under the current jury system there is no way to sequester a jury; and the DPP gave evidence of past (albeit unproven) allegations of jurors being approached.”
Related provisions were not included in the proposed new Jury Act.
Mr. Fraser said, “That is something I would go down fighting against, but I’m glad that it’s not in this bill.”
Mr. Malone suggested that the right to a speedy trial by a jury of peers — which is not currently included in the Constitution — be considered during the current constitutional review.