Bill To Modernize The Jury Selection Process

The Attorney-General Kathy Lynn Simmons announced the tabling of a Bill in the House of Assembly entitled ‘Criminal Code Amendment [No. 2] Act 2020’.

A Government spokesperson said, “This Bill amends section 519 of the Criminal Code Act 1907 to modernize the jury selection process by providing parity between the Crown’s and the Defendant’s challenges to potential jurors for Supreme Court criminal trials. The Bill will also replace an out-of-date reference to the death penalty in the Criminal Code Act 1907 and repeals the archaic provision, section 521, allowing for all-male juries.”

Attorney-General Simmons said, “The public will be aware that the Constitution guarantees an accused person the right to a trial by jury if they are being tried for an offence in the Supreme Court. The jury selection process is conducted, in part, according to provisions in the Criminal Code Act 1907. A jury consists of 12 persons, plus alternates. Jurors play an important role in criminal trials because they bring their individual and collective common sense and broader life experiences to the assessment of the evidence presented at trial.

“As the Government perpetually keeps the state of the law under review for modernizing reforms, we have acknowledged that there is a disparity in the jury selection process which could give the appearance of bias benefiting the Crown. The offending provision, section 519 of the Criminal Code Act 1907, allows the Crown to ‘stand-by’ or excuse an unlimited number of potential jurors, without having to give reasons.

“This effectively gives the Crown greater opportunity to select a jury which is perceived to be more sympathetic to the Prosecution. Conversely, a defendant has a fixed number of up to a maximum of 5 challenges [depending on the type of offence] without being required to give a reason. This has led to defendants claiming bias because of their perception of how the Crown has exercised its option to stand-by potential jurors.

“The Crown’s use of stand-bys has fallen out of favour in many jurisdictions, including, the United Kingdom, Canada and the British Overseas Territories of Cayman Islands and British Virgin Islands. Stand-by provisions are increasingly being removed from jury selection laws because they are criticized for being open to potential abuse by the Crown to ‘stack the jury’ on racial, sex, ethnic, age or other implicitly biased grounds. The use of stand-bys has been subject of legal challenges on Constitutional grounds for potentially offending the fundamental right to a fair trial, lack of equality of arms between the parties, violating the rule of law and breaching rules of natural justice.

“The proposed amendments to the Criminal Code Act 1907, will repeal the section permitting unlimited stand-bys by the Crown and give the Crown and Defendant equal numbers of ‘without cause’ challenges to potential jurors. ‘Without cause’ simply means the objecting party doesn’t have to give a reason for their objection to the potential juror. The Crown and the defendant will also be able to agree to excuse any number of potential jurors with the introduction of a new provision in the Bill.

Attorney-General Simmons added, “It is also timely to correct a sexist provision in the Criminal Code Act 1907 which permits empaneling all-male juries in cases where matters of an indecent nature are likely to arise. I don’t believe the public needs much explanation as to why this provision no longer comports with gender equality rights.

“As the Constitutional guardian of the fair administration of justice it would be remiss of me to not take action to achieve a fairer and equitable jury selection process and correct problems that have been a fixture of our criminal laws pre-dating our Constitution.”

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