Fifteen years of illegal trials?

For fifteen or so years the statutory procedure for empanelling juries in the British Virgin Islands has not been followed. In R v Clarke (blogged here 7 February 2008) a trial was held to be a nullity because an indictment had not been correctly signed. Was the British Virgin Islands problem more profound?

The Privy Council addressed this in DPP (Virgin Islands) v Penn (British Virgin Islands) [2008] UKPC 29 (8 May 2008).

Here, the Registrar of the Court had not maintained a list from which an array of jurors was summoned for jury service. From this array the trial jury (of nine) would be impanelled. Instead of maintaining the jury list, the list of registered voters was used. The qualifications for jurors and electors differed.

Constitutional lawyers will be thinking this was an opportunity for application of the “de facto doctrine”, or, more precisely, the doctrine which holds valid, in certain situations, the acts of officials who have not been lawfully appointed to office. This doctrine is particularly useful in revolutions and coups, where an illegal government purports to appoint officials to carry on the day to day business of the state. Although it was not necessary to apply this doctrine here, the Board did make reference to it in paras 22-23.

No, here the solution was arrived at by reasoning consistent with that used in Clarke: if the legislative intent was not that the consequences of a breach of the enacted procedure should be a nullity, then, as long as everything was done in good faith, the proceedings would not be invalid on that score:

“18. The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Railway Company v. Normandin [1917] AC 170] … underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the impanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. The Board recognises the seriousness of a criminal charge and the particular vigilance that the courts will exert to maintain the fairness and integrity of criminal proceedings. But the Board considers that there is scope for the reasoning in the Montreal Railway case in a criminal context.”

These considerations come into play once there has been a trial at which no objection to the procedure in question was made. Had such an objection been made at trial, the judge may well have decided to quash the proceedings (para 33). But, where there is no reason to think that there had not been a fair trial, quashing would only be appropriate if that was the clear intention of the legislature.

Here, the legislation indicated a flexible approach was available to objections to the array at trial: s 24 of the Jury Act 1914 provides

“24. Every application, made at a sitting of the High Court, for the quashing of an array, shall be heard and determined by the presiding judge, and no array shall be quashed on the ground of any formal defect, or of any breach of any of the provisions of this Act, unless the presiding Judge is satisfied that it is expedient, on the merits and in the interests of justice, that the array should be quashed.”

The Board reasoned, para 35:

“Section 24 is not itself applicable on an appeal. It deals with applications to the presiding judge before whom the applicant is to be tried. But its flexible focus on the interests of justice assists to confirm the appropriate approach to the question which is in issue on the present appeal: whether the appellant's trial and conviction should be regarded as a nullity or set aside and a fresh trial ordered. There is no suggestion that the trial judge or jury were aware of the Registrar's default in his or her statutory duties. The Board does not accept that the Registrar's awareness of the default equates with awareness on the part of the judge or jury. There is no suggestion of any disadvantage or prejudice to the respondent by reason of the defects in process which occurred. Any jurors' register would have been very largely identical with the voters' list from which the array was in fact selected. There is no suggestion that the array was not taken from the voters' list in a manner which was comparably random to the way in which it should have been taken from a jurors' register. There is no suggestion that any of the nine jurors who eventually served at the trial did not meet the age and other qualifications in the Jury Act.”

The conclusion was that there was nothing in the legislative intent to require the trial that had occurred in these circumstances to be declared invalid.