Falklands : FIRS Shines the Spotlight on Mark Lewis
Submitted by Falkland Islands News Network (Juanita Brock) 23.09.2011 (Article Archived on 07.10.2011)
FINN has published a message concerning the new Jury Amendment Bill. Stacey Bragger of FIRS has interviewed the Attorney General the Hon Mr Mark Lewis QC (ML), who explained what the changes to this Bill mean to you and me.
FIRS SHINES THE SPOTLIGHT ON MARK LEWIS
A Report for FIRS by Stacey Bragger (SB)
Intro by J. Brock (FINN)
FINN has published a message concerning the new Jury Amendment Bill. Stacey Bragger of FIRS has interviewed the Attorney General the Hon Mr Mark Lewis QC (ML), who explained what the changes to this Bill mean to you and me.
ML: The proposed Jury Amendment Bill, as it is titled, is designed to do two things. Firstly it’s intended to increase the number of people who can be called for jury service and secondly a more technical change in terms of allowing the Judge to decide the order of trial where you have got two or more people charged with the same offence; and they choose different methods of trial. It outlays to design to do both those two things.
SB: So why is it felt that the changes are necessary?
ML: The starting point is thinking back and realising who can be a juror at the moment as things stand. If you are called to be a juror you have to be registered as a voter on the electoral role and you can’t be younger than18, you can’t be older than 65 and there is a requirement that you have been ordinarily resident in the Falkland Islands for 5 years since becoming 13 years old. Basically what that means is that in theory we’ve got about 1500 people on the Islands who are eligible to be called for jury service.
SB: The intention is to widen that pool?
ML: Yes. And the reason for that is that there are a number of ways that you can be excused, disqualified or rejected for jury service. So whilst on the one hand you might think 1500 sounds like quite a lot of people you can call a jury from, in fact the actual number you can pull a jury from is significantly less than that because certain occupations are excused from Jury service, like police officers and lawyers and various others. You can be excused from Jury service because of the religious beliefs that you hold. Clearly if you are either physically or mentally unwell then you will be excused from Jury service. If you have got certain previous convictions you will be excused from Jury service. And then you’ve got simple matters like not being on the Islands at the time or you might have work and family commitments that mean that you can’t be called because you have other things that you need to do. And then also a big area is that you might be disqualified from jury service because of the knowledge or the relationship you have with the person who is being tried. So if they are a friend of yours or a relative of yours or if you know quite a lot of detail of what they do or previous convictions might have. Then you may well be disqualified from Jury service on those grounds as well. Adding into that mix, of course, is an English Language qualification for jury service in that if you can’t demonstrate an understanding of the English Language; then the Judge can disqualify you from jury service. And the prosecution and defence could also ask you to be disqualified. So you might start with 1500 people but once the various categories are knocked out you end up with a jury pool which is considerably less than that.
SB: How is it proposed that the pool would be widened; and who could be eligible?
ML: We looked at various options that might be available for increasing the number of people for jury service and bearing in mind what we want to achieve is justice is not only done but seen to be done; so what we are trying to do is trying to give people a fair hearing in front of a group of independent people so we are considering a number of options in the Bill. And what the Bill proposes is that firstly the maximum age for jury service be raised from 65 to 70. The reason for that is that people these days are living longer and people are perfectly capable of acting as jurors after 65, so it seemed appropriate to raise that age limit. We don’t want to discriminate against those people who are over 65. Secondly we are proposing to extend jury service to people who have residence permits and any of their related other dependents and also to extend jury service to those people who hold work permits. So those are the main changes. There are a couple of technical changes. We are proposing to remove the 5-year residence requirements so that the requirement is that you have to be ordinarily resident in the Islands to be a juror and there is also a minor provision about – at the moment if you attend for jury service then you can’t be called for two years. We are going to get rid of that as well.
SB: if a work permit holder has a basic level of English, is it felt they would have to have a greater look at understanding – just so they could understand all the nuances in the case?
ML: Yes. I understand why people can be concerned about the English language requirement and the safeguards that are currently in the legislation are that when someone is called for jury service, the Clerk to the Court, having met the person, has concerns about whether they can understand sufficiently the English language or not, if they’ve got any doubts at all, they can bring that person before the judge and the Judge can talk to the person and make an assessment as to whether their English is good enough. And if a Judge’s view is they don’t have a sufficient understanding then the Judge will simply say they can’t sit as a juror. The other safeguard is that the prosecution and the defendant can both challenge a juror on the grounds of their understanding of English. So even if a judge has said it’s OK, the prosecution and defence can still challenge a juror on the basis of his understanding of English. So there are safeguards in the legislation to ensure that those people sitting as jurors understand what’s going on.
SB: Would people be committed to ensuring a fair verdict if they don’t have as large a stake in the community?
ML: That’s a very interesting question. The prospective I am coming at it from is the need on the Falkland Islands to ensure that people have a fair trial. And a fair trial means being tried by people who are independent and impartial. I can see the two sides of the argument. You could argue that people who have work permits don’t have the same stake in the community. On the other hand you can argue that they will bring an independence and impartiality that the community who knows the defendant can’t bring to the proceedings. And I think the point to be made is that when a jury is selected, it’s going to be a mixed bag of people so they will be selected from all parts of the community. But what I do is go back to what we talked about earlier which is we have this theoretical pool if 1500 people but by the time you knock all the qualifications and disqualifications out, that becomes a significantly reduced pool. So if you extended the Jury pool by those who had residence permits then you are only going to be adding about 100 people to the jury pool. And that’s 100 theoretical people because some of those people might be off the Islands and disqualified for various reasons. That doesn’t really change the size of the pool very much. By extending it to work permit holders you add about another 1,000 people to the pool. Again, some of those people will be disqualified for various reasons but it gives a more workable pool to work with. I think it’s worth adding that if the experience of the last jury trial that we had – I wasn’t here at the time – what I am told is that in order to get a jury of 7 people they had to call over 90 jurors in before they could actually get 7 people who could hear the trial. That took a while and there was a lot of administration and it doesn’t help good justice on the Islands.
SB: Could you explain the order of trials?
ML: The order of trials thing is like this: as most people know for serious offences if you are charged with a serious offence you could either choose to be tried by jury or you can choose to be tried by a judge. Most of the time that’s not a problem but there are some offences where you have more than one person who commits them. You might have an arson which is committed by two or three people acting together, or you can have an assault – a serious attack on somebody causing GBH or something with one or two people who have all acted together. With two or more people, some of them might choose a jury trial and one of them might choose trial by judge, depending on what they think their best option is. As the law stands at the moment, if there is a difference between the type of trial they have chosen, then the Jury trials happen first. So you start and complete the jury trial for the defendants who want the Jury trial and once you’ve done that, you then go on and have the trial by Judge with the defendant who wants a trial by Judge. Most of the time that’s fine but you can imagine circumstances where the results of one trial will mean that effectively you get an inconsistent and completely absurd verdict in terms of the other trial. For example, if you had an arson and you had some people charged with aiding and abetting or assisting with the Arson in somebody charged with doing the arson. And the person charged with aiding and abetting and that person’s defence was that it never happened and the jury believed it and they acquit the person on the grounds that it just didn’t happen – there wasn’t an arson; it happened by other causes – then if you are going to have a Judge trial and the judge then convicts the defendant of committing the arson, which a jury has already found didn’t happen, then you can see how that’s completely inconsistent. We need to give the Judge the discretion to decide what is the best order of trials so that we can get consistent results without prejudicing people’s right to a fair trial?
SB: So if people have some comments on that, how can they submit feedback?
ML: if they have any comments they want to make on the Jury provisions at all, then they can e-mail me on mlewis@sec.gov.fk or they can call me on 28461 or they can send a letter to the Attorney General’s Chambers and do it that way. I don’t mind how people respond. The other opportunity to have a discussion about it and ask questions is at a public meeting on the 26th of September. The public meeting starts at 5O’Clock in the Town Hall. I will be doing a short presentation similar to the one we have just done now and people will get the chance to ask questions and make any comments then as well. If people have views on it, I would encourage them to to have the representations and we can take them into consideration and see what we make of them.
(100X Transcription Service)
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