| BRITISH VIRGIN ISLANDS — Crime — Jury — Statutory requirement that jurors be empanelled from register of qualified persons — Defendant convicted by jury empanelled from list of voters — Whether trial nullity — Jury Act 1914, ss 1, 8-28
Director of Public Prosecutions of the British Virgin Islands v Penn [2008] UKPC 29; [2008] WLR (D) 149
PC: Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Mance: 8 May 2008
Where a defendant had been convicted by a jury which had been empanelled from an array which did not meet the requirements laid down by statute his conviction should not be overturned and a retrial ordered unless the statutory language and intent so required or there was reason to think his trial had been unfair.
The Privy Council so held in allowing an appeal by the Director of Public Prosecutions of the British Virgin Islands from a decision of the Eastern Caribbean Court of Appeal (British Virgin Islands) (Alleyne CJ Ag, Rawlins JA and Edwards JA Ag) given on 3 December 2007 by which it had set aside the conviction of the defendant, William Alexander Penn, on three counts of burglary on 20 March 2006 at the High Court of Justice before Charles J and a jury, and ordered that a writ of venire de novo be issued and that the defendant be retried.
LORD MANCE, giving the opinion of the Board, said that the Jury Act 1914 contained elaborate and detailed provisions for the preparation and publication each December of a list of persons qualified to serve as jurors which would constitute the jurors' register for the ensuing calendar year. However, the practice of the last 15 or so years had been very different. No jurors' list has been prepared and no jurors' register kept. When empanelling juries, successive registrars had used the voters' list. The qualifications for jurors and electors were not identical, the main difference being a different age qualification. No one seemed to have raised the non-compliance with the Act until the present case. Had the registrar's default been the subject of a challenge at trial the judge might have concluded that the jury array should be quashed. But, assuming that a judge would have so decided at trial, it did not follow from that that an appeal after conviction made on the basis of the same defects must also succeed. The situations were different. Where there had been a trial, the considerations identified by the Board in Montreal Street Railway Co v Normandin [1917] AC 170 came into play. To treat the trial as a nullity and to order a new trial "in cases where there was no reason to think that a fair trial had not been had" (to quote Sir Arthur Channell, at p 176) was a course which the Board should be reluctant to take unless the statutory language and intent required it. There was nothing in the Jury Act 1914 to compel a conclusion that either the array or the trial should, in the present circumstances, be regarded as a nullity. On an appeal after a trial during which such failures went unobserved by those responsible for trying the issues of law and fact and all appeared entirely in order, the question was whether the default now identified was such as to require the trial and verdict to be set aside. Highly regrettable though the default was, there was no ground for considering that it had or could have had any impact on the eligibility to serve, randomness, impartiality or ultimate decision of all or any of the members of the jury. In those circumstances the answer to the question was negative.
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Appearances: Terence F Williams, Director of Public Prosecutions, and Tamia N Richards, Senior Crown Counsel (both of the British Virgin Islands Bar) (Charles Russell LLP) for the Director of Public Prosecutions; Peter Knox QC (of the English bar) (Collyer Bristow LLP) for the defendant.
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