Top lawyers back jury duty for permanent residents

Cayman’s jury pool should be widened by the inclusion of long-term residents, alongside cuts to a long list of exemptions to service.

That was the verdict of some of the Cayman Islands’ most prominent lawyers who argued it was getting harder to fill juries from the ranks of Caymanians alone.

Richard Barton, the president of the Cayman Islands Legal Practitioners Association, said the country would benefit from permanent residents being added to the jury pool alongside Caymanians who are registered to vote.

Barton, who emphasised he was speaking in a personal capacity, said the restriction had “the potential to limit the availability of jurors due to inherent conflicts that may arise in certain cases where, for instance, there are multiple defendants charged”.

He added the problem was “far from unique” to Cayman and had been identified in other UK overseas territories such as Bermuda and Turks and Caicos.

“The option to widen the eligibility criteria and include permanent residents should be readily embraced,” Barton said.

“Permanent residents have made the Cayman Islands their home and are integral with established ties to the community.

“They contribute significantly to society and any decision to broaden the jury pool to include them would enhance the diversity of jurors and better reflect the composition of our unique population.”

Britain’s Foreign, Commonwealth and Development Office has already examined the problems of forming juries in the UK overseas territories, as well as looking at difficulties in creating impartial ones.

A 2009 report prepared by the office’s legal counsellor suggested that the age limit for jurors should be increased, which Cayman has done, rising from 60 to 70 in 2021.

Suggestion to revisit jury service exempted list

The report, discussed at that year’s conference of Attorneys General of the Overseas Territories in Anguilla, also recommended a reduction in the number of jobs exempted from jury service.

The paper recommended eligibility restricted to people on the electoral roll should also be looked at.

It said, “In reality, there would seem to be no good reason why a person who has a legitimately established residence but who has not been naturalised should not serve on a jury.”

It also looked at “the perhaps uncomfortable issue of the attitudes displayed by juries depending upon the status of any given accused – that is whether of belonger or non-belonger status, and the status of the victim”.

The report said, “It is a widely if not universally held view that where a belonger is charged with an offence allegedly committed against a non-belonger then the presumption of innocence is almost inevitably translated into a certainty irrespective of the actual evidence.

“On the other hand, where the accused is a non-belonger and the victim a belonger then despite the best endeavours of judge, prosecution and defence then at best the accused can expect a presumption of guilt on the part of the jury. …

“Residents have a not dissimilar stake in the community and rendering residents eligible might go some way to neutralising the ‘belonger, non-belonger’ phenomenon highlighted earlier.”

Trial by judge alone could be considered

The report said in larger jurisdictions, such as Cayman and Bermuda, selection of impartial juries was not as big a problem as it was in smaller ones and that responses to questionnaires backed that up.

But it added that legislation to allow trial before a judge sitting alone or with lay assessors could be passed in the territories in case it was ever needed.

The report said that the prosecution of a “powerful, prominent or popular” figure would make it “unlikely that a truly impartial jury could be empanelled in any of the overseas territories under consideration, Bermuda and the Cayman Islands included …”

Cayman at present rules out judges, magistrates and MPs, as well as their immediate families, from serving on juries.

Doctors, lawyers involved in litigation, officers of the court, Cabinet Office staff, police and prison officers are also exempted.

People suffering from psychiatric problems, anyone charged with an offence and awaiting trial and those who have been sentenced to a prison term and not received a pardon are ineligible.

The Foreign Office paper highlighted that England and Wales had abolished exemptions for judges, lawyers, police and prison officers, but police officers may still be excused from cases against their service, or if they serve at or near a station where a crime was investigated.

The report said, “There would be merit in reconsidering whether these lists should not now be modified.”

The UK upper age limit for jurors is 75 and experts have highlighted that people likely to be retired would be more willing to give their time to jury service.

“The restriction on certain professionals can also be revised. Their respective experience could benefit the justice system significantly,” Barton said.

“Equally, consideration should be given to an increase in the current age limit for jurors, provided that they are of sound mind and body.”

Top defence lawyer backs bigger jury pool

Prathna Bodden, a veteran of the Grand Court, agreed that a bigger pool could help ease the pressure on Caymanians listed on the electoral roll.

She added, “I do think it would be helpful in the system. It’s not just Caymanians who come before the courts.

“There should be some expansion … but a jury is supposed to be your peers.”

Bodden said, however, that people with a long track record and commitment to Cayman could be drafted to sit on juries.

She explained, “If, for example, they opened it up to people who have permanent residency, which shows their commitment … they, with respect, might be considered.

“That would open up a whole new group of people who could then sit as jurors.”

She added a larger group to choose from would also mean greater scope to give longer exemptions to people who had to sit through difficult or harrowing cases, where jurors in the UK might be excused from further service for several years or even life.

Bodden said, “It’s unfair if it’s a murder or something else that’s really traumatic. I’ve only seen exemptions for one or two years.”

She added jurors often dealt with complex and difficult cases and had to face the prospect of having to return in a few days or weeks for further duty.

Bodden said, “Permanent residency or status holders who were not quite voters, that could be described as a trial by your peers.”

She added that serving on a jury was a civic duty but “a civic pressure as well” because of the weight of responsibility.

Bodden said, “Some people miss out on work. Some people miss out on work to a great extent.”

She highlighted that jurors were also required to sit in Coroner’s Court, which could involve distressing evidence.

But Bodden said she did not think that a shift to a reliance on trials before a judge without a jury was wise.

She added, “I don’t think people should always be tried by judge alone. … That would be a step too far.

“We’re not there yet. We’re not having cases that haven’t gone ahead. That’s a massive right to take away if we need to go straight into that.”