A controversial part of Bermuda’s jury selection procedure was ruled yesterday to be in breach of the Constitution by the Supreme Court.

Chief Justice Narinder Hargun said the Criminal Code section that allowed prosecutors to stand down an unlimited number of potential jurors, although defence counsel could only challenge three without reason, went against the principle of a right to a fair trial.

Mr Hargun ruled that Section 519(2) of the Criminal Code was inoperative, because it allowed a difference in the number of juror challenges available to the defence and “standbys” that could be made by the prosecution.

Mark Pettingill, the defence lawyer who took the case to the Supreme Court, said the decision could spark appeals, but that would depend on individual cases.

He added: “Obviously there will be things that flow from this.

“There are other cases where people are concerned, with regard to how their trials were dealt with initially, and they will have to seek advice and consider their legal position on that.

“The key to this particular case, is this point was taken at the start of the trial and raised by way of a constitutional point, which makes it different from trials that have gone ahead.”

The Chief Justice suspended the judgment for three months to allow the law to be changed.

The court heard that Kathy Lynn Simmons, the Attorney-General and legal affairs minister, had already drafted amendments to tackle the problem, which were tabled in the House of Assembly yesterday.

Mr Pettingill said the recent Black Lives Matter campaign for equality had turned the spotlight on legislation that opened the door to potential abuses.

Mr Pettingill said: “A lot has gone on and I think that we are finally catching up to the times.

“There has been the Black Lives Matter movement, which is so significant in ensuring equality in justice.”

Mr Pettingill added: “The Premier announced that they would be addressing the laws in that regard, and in my mind, this is the most potentially biased provision in law existing on our books.”

The Supreme Court judgment came after a constitutional application was made by Mr Pettingill on behalf of Jahmico Trott, which was not opposed by the Crown.

Mr Trott, 32, had been charged with attempted murder, use of a firearm in an indictable offence, possession of a firearm with criminal intent, corruption of a witness and intimidation of a witness.

Jurors are drawn at random from a pool, but the Crown can call on the jurors to “stand down” without any reason, under provisions in the Criminal Code.

Potential jurors who are stood down can only be called again if the pool is exhausted without a 12-strong jury being formed.

The Crown can challenge the selection of a juror, but they must explain to the court why the potential juror was not qualified or would be biased.

Mr Pettingill said, during jury selection for Mr Trott’s Supreme Court trial, prosecutors “stood by” ten potential jurors — all of them black people.

He did not accuse the Crown of wrongdoing, but maintained the circumstances raised concerns about the appearance of bias and “equality of arms” — that there should be a level playing field for the defence and the prosecution.

Mr Pettingill said: “This ties in to the Bermuda Constitution, which enshrines the right for an individual to have a fair trial.

“That fairness meant the Crown should not be allowed to have unlimited challenges until the jury is set up a certain way, or appears to be so.”

Mr Pettingill highlighted in court that the offending section of the Criminal Code also made reference to death penalty cases — despite the abolition of capital punishment more than 20 years ago — which highlighted how long the section had escaped scrutiny.

He added: “Our Criminal Code goes back to 1907 and a lot of older laws exist in there, but as things developed in this trial, this is the one that caused me the most concern about appearance of bias and was in principle wrong for society at this time.”

Mr Pettingill said Mr Trott’s trial must still go ahead, but the decision will place the defence and the prosecution on equal terms on the jury.

He added: “It will ensure his right to a fair trial. He will still have to go to trial, but at that trial the prosecution will only be able to challenge as many jurors, or standby as many jurors, as he is allowed to. Three/three is what I anticipate.”

Ms Simmons said: “The Crown’s use of standbys 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.

“Standby provisions are increasingly being removed from jury selection laws, because they are criticised for being open to potential abuse by the Crown to ‘stack the jury’ on racial, sex, ethnic, age or other implicitly biased grounds.”

Ms Simmons added that the amendments would give both the Crown and the defendant the same number of “without cause” challenges to potential juror selection and the two sides can agree to excuse any number of potential jurors.

Ms Simmons added the amendments would also remove a “sexist provision” that allowed an all-male jury in cases “where matters of an indecent nature are likely to arise”.

She said: “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 predating our constitution.”

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