DPP of the British Virgin Islands v Penn
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 08 May 2008 |
| Neutral Citation | [2008] UKPC 29 |
| Court | Privy Council |
| Docket Number | Appeal No 1 of 2008 |
| Date | 08 May 2008 |
[2008] UKPC 29
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Mance
[Delivered by Lord Mance]
Introduction and facts
The Jury Act 1914 of the British Virgin Islands contains elaborate and detailed provisions for the preparation and publication each December of a list of persons qualified to serve as jurors and for its revision by a Magistrate (ss.8-10). This list is to be copied into a jurors' book to constitute the jurors' register for the ensuing calendar year (s.11) with amendments made from time to time by the Registrar and Magistrate to take account of deaths, etc. (s.13). Whenever necessary, the Registrar is to impanel from the list an array of thirty common jurors to serve at the High Court (ss.14-18) and to summons them to attend (s.22-23). From the array, a jury of no more than nine is impanelled to try any proceeding (s.26). The annex at the end of this judgment sets out these and other relevant provisions in detail.
The practice of the last fifteen or so years has been very different. No jurors' list has been prepared and no jurors' book or register kept. When impanelling juries, successive Registrars have used the voters' list prepared under the Elections Act 1994 (No. 16 of 1994) (as amended by No. 8 of 1998). The qualifications for jurors and electors are not identical. Under section 31 of the Constitution, a person is qualified to vote if he is a British subject, belongs to the Virgin Islands (a concept defined by section 2 of the Constitution), has reached the age of 18 and is domiciled and resident in the Virgin Islands (or is domiciled there and resident in the United States Virgin Islands). There are exceptions for persons certified insane or adjudged of unsound mind, disqualified by reason of a conviction of an offence relating to elections, sentenced to death or serving a term of imprisonment of over 12 months. Under section 4 of the Jury Act a juror must be between 21 and 60 and own or rent property of a certain value, hold office at a certain salary or be in receipt of a certain income. The values and sums stated have with time become insignificant, so that there must now be few if any who do not satisfy the monetary requirement. Non-working mothers or wives without any other source of income and without any rental or proprietary interest in their homes would be an example. Under sections 6 and 7 the persons disqualified from jury service are aliens not domiciled for at least 10 years, those disabled by unsoundness of mind, deafness, blindness or other permanent infirmity of body, persons previously convicted of any felony (which the Board will assume refers, after the abolition of the distinction between felonies and misdemeanours, to crimes previously counting as felonies) and persons unable to read and write English or understand it when spoken. The differences between the voters' list and the jurors' list envisaged by the Jury Act 1914 therefore consist principally in the different age qualifications and, less significantly, the different criteria for disqualification.
No-one seems to have raised the non-compliance with the Jury Act 1914 until the present case. The case involves the conviction on 20 th March 2006 of the appellant, William Penn, on three counts of burglary from tourist rental villas in respect of which he was sentenced to concurrent eight year terms in prison. When a jury of nine was being impanelled for his trial, the respondent through counsel, Dr Joseph Archibald QC, challenged peremptorily three persons (the maximum number susceptible to peremptory challenge), and challenged successfully a further six for cause. The Crown asked fourteen persons to stand by. Two days after the respondent's conviction, Dr Archibald wrote asking for permission to inspect the jurors' book and the Magistrate's certificate of revision of the jurors' list for 2006. The reply elicited the fact that neither existed. The Registrar said that, after taking office, she had enquired about the practice of using the voters' register and had been advised that this practice had existed for many years, and so had, it appears, continued to follow it.
The respondent appealed to the Court of Appeal on various grounds. The Court (Brian Alleyne CJ (Ag.), Rawlins JA and Edwards JA (Ag.)) on 3 rd December 2007 dealt only with the irregularity involving the jury in allowing the appeal and setting aside the convictions. The Court relied on the wording of s.1 of the Jury Act 1914, according to which
"'juror' means a person whose name is included in a jurors' register for the time being in force".
On that basis, the Court held that the Registrar had no jurisdiction to impanel an array based other than on a jurors' register and that the nine persons impanelled as a jury were without jurisdiction. It ordered a fresh trial. Against that decision, this appeal has been brought and expedited by special leave of the Board.
Challenges to the array
At common law challenges to jurors for cause are either to the array or to the polls (i.e. to an individual member called from the array to be impanelled as a juror). Peremptory challenges were, within certain limits, recognised. The Jury Act 1914 reproduces all these possibilities (ss.24, 27 and 28). But there is a potentially important distinction between a challenge made at the time of the array or impanelling of jurors and an appeal on the basis of information acquired after conviction. The authorities draw this distinction, and make clear that merely to establish after conviction some reason why a juror should not have sat will not suffice to have a jury's verdict set aside. Thus the presence on the jury of someone disqualified by conviction for felony from sitting ( R v. Kelly [1950] 2 KB 164) or of someone who mistakenly answered to the wrong name when the jury was being impanelled ( R v. Mellor (1858) Dears & B 468, by a narrow majority) will not suffice in the absence of any injustice, unfairness or real prejudice ( R v. Mellor, 499, 508, 514, 517, 518-9 and 522-3, per Erle, Crompton, Crowder, Willes, Channell and Byles JJ; cf also R v. Comerford [1998] 1 CAR 235, 244D). Deliberate impersonation of a juror by another person will in contrast lead to the verdict being set aside ( R v. Kelly; R v. Wakefield [1918] 1 KB 216).
Challenges to the array relate to the process leading to the impanelling of the array. Such a challenge may be made on the basis of default, error or partiality on the part of the sheriff or other officer responsible for the return of the array. That, at least, was common ground in O'Connell v. R (1844) XI Cl & F 155, the case of the Irish patriot, barrister and MP, in whose hands, as The Concise Dictionary of National Biography records, "the system of constitutional agitation by mass meetings ….. reached a perfection never before attained". In February 1844 O'Connell was convicted in the Court of Queen's Bench in Dublin on lengthy charges related to his agitation for an independent Ireland and sentenced to a fine of £2000 and a year's imprisonment. At the trial a challenge to the array was made and rejected. Writs of error issued by the defendants came before the House of Lord with speed (motions for arrest of judgment having been refused on 27 th May) and were argued before the Law Lords over six days in July 1844. The House took the advice of the Judges, which was delivered on 2 nd September.
On 4 th September 1844 the House decided in O'Connell's favour on grounds unrelated to the challenge to the array. This decision was only possible after lay peers of contrary opinion were persuaded to withdraw from the chamber by the consideration that, although a distinction between lay and law Lords was "not known to the Constitution", no-one "ought ever to decide a case, all the arguments in which he has not heard" (pp.423-4, per Lord Campbell and cf per The Marquess of Clanricarde). Obiter, the House expressed sharply divided views on the scope of challenges to the array.
The basis of O'Connell's and his co-defendants' challenge to the array was legislation which put in place (in lieu of the sheriff's former responsibility for all aspects of the identification, summoning and impanelling of jurors) a scheme calling for the preparation each year by the collectors of grand jury cess (a rate payable by occupiers of land) and the presentation by the clerks of the peace to the Recorder of Dublin of twenty several lists for correction and approval. From these the Recorder was to prepare one general list, arranged according to rank and property, and to deliver this to the clerks of the peace for them to copy and for the sheriff to use to return any array. O'Connell and his co-defendants averred that the Recorder had not prepared any general list from the several lists which he had approved. Someone else had prepared a paper-list purporting to be a general list, but had fraudulently omitted from it 59 persons whose names had been on the several lists which had been approved. It was this paper-list which had been used to make up the jurors' book. The challenge averred that the clerk of the Crown for Dublin and the solicitor acting for the Crown in the prosecution had notice of the irregularity before the panel was arrayed. There was no complaint about the sheriff or the way in which he had impanelled jurors for the trial from the book. It was the Recorder exercising what Lord Denman described as judicial functions who defaulted. The issue which divided the House was whether a challenge to the array could lie in respect of default of the Recorder exercising a newly created judicial function which replaced...
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