Report of the Select Committee on the Operation of the Jury System 2015-2016

PP 2016/0100

REPORT OF THE SELECT COMMITTEE ON THE OPERATION OF THE JURY SYSTEM

2015-2016

REPORT OF THE SELECT COMMITTEE ON THE OPERATION OF THE JURY SYSTEM 2015-2016

At the sitting of Tynwald Court in October 2015 it was resolved -

That a committee of three Members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to consider the operation of the jury system on the Isle of Man and to report by the sitting in June 2016.

The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984.

Committee Membership

Mr C R Robertshaw MHK (Douglas East) (Chairman)

Mr P Karran MHK (Onchan)

Mr W M Malarkey MHK (Douglas South)

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im

All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW.

Table of Contents

I. THE INQUIRY ...... 1

II. GENERAL ...... 3

THE ENGLISH SYSTEM 3

THE ISLE OF MAN SYSTEM 4

III. UNUSUALLY DIFFICULT CASES ...... 5

HANDLING COMPLEX CASES 5

OPTION OF JUDGE ONLY TRIALS 7

RECOMMENDATIONS 9

IV. COMPOSITION AND FUNCTIONING OF THE JURY ...... 10

THE SIZE OF THE JURY 10

Majority verdicts ...... 14

PEREMPTORY CHALLENGES 18

V. GUIDANCE FOR JURIES ...... 21

THE POTENTIAL IMPACT OF SOCIAL MEDIA 21

CARE AND TRAINING OF JURORS 24

VI. SUMMONING JURORS ...... 25

THE USE OF THE ELECTORAL ROLL 25

EXEMPTIONS FROM SERVICE AND DEFERRAL 28

PAYMENT FOR SERVICE 30

VII. CRIMINAL LAW ...... 31

VIII. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS ...... 32

ORAL EVIDENCE ...... 35

9TH FEBRUARY 2016 EVIDENCE OF HIS HONOUR DEEMSTER MONTGOMERIE AND MR S CREGEEN, CHIEF REGISTRAR 37

19TH FEBRUARY 2016 EVIDENCE OF MR J QUINN, ACTING ATTORNEY GENERAL, AND MR R BUTTERS, DIRECTOR OF PROSECUTIONS, ATTORNEY GENERAL’S CHAMBERS 67

4TH MARCH 2016 EVIDENCE OF MS V UNSWORTH, ADVOCATE, MR J STANLEY, ADVOCATE AND MS D JONES, ADVOCATE 99

11TH MARCH 2016 EVIDENCE OF MR SIMON CAIN, PRESIDENT, ISLE OF MAN LAW SOCIETY, AND EVIDENCE OF MR MARK LEWIN, DIRECTOR OF GOVERNMENT TECHNOLOGY SERVICES, AND MRS DELLA FLETCHER, EXECUTIVE DIRECTOR EXTERNAL RELATIONS, CABINET OFFICE 141

WRITTEN EVIDENCE ...... 175

APPENDIX 1: EMAIL DATED 8TH APRIL 2016 FROM J L M QUINN, HM ACTING ATTORNEY GENERAL 177

APPENDIX 2: LETTER DATED 23RD MARCH 2016 FROM MARK LEWIN, GOVERNMENT TECHNOLOGY SERVICES, AND DELLA FLETCHER, EXECUTIVE DIRECTOR, EXTERNAL RELATIONS, CABINET OFFICE 181

APPENDIX 3: LETTER DATED 18TH MARCH 2016 FROM GARY ROBERTS, CHIEF CONSTABLE 187

APPENDIX 4: LETTER DATED 25TH FEBRUARY 2016 FROM DEEMSTER ALISTAIR MONTGOMERIE 193

APPENDIX 5: SUBMISSION DATED 22ND FEBRUARY 2016 FROM IAIN MCDONALD, INFORMATION COMMISSIONER 197

APPENDIX 6: LETTER DATED 15TH FEBRUARY 2016 FROM STEPHEN CREGEEN, CHIEF REGISTRAR 203

APPENDIX 7: NOTE TO THE SELECT COMMITTEE DATED 8TH FEBRUARY 2016 FROM J L M QUINN, HM ACTING ATTORNEY GENERAL 207

APPENDIX 8: LETTER DATED 14TH JANUARY 2016 FROM HON, JUAN WATTERSON MHK, MINISTER FOR HOME AFFAIRS 221

APPENDIX 9: SUBMISSION DATED 17TH DECEMBER 2015 FROM MARK LEWIN, DIRECTOR, GOVERNMENT TECHNOLOGY SERVICES 225

APPENDIX 10: LETTER DATED 22ND NOVEMBER 2015 FROM MRS JOAN COOK 239

APPENDIX 11: LETTER DATED 20TH NOVEMBER 2015 FROM HON JUAN WATTERSON MHK, MEMBER OF THE HOUSE OF KEYS FOR RUSHEN 243

APPENDIX 12: LETTER DATED 20TH NOVEMBER 2015 FROM JUAN MOORE, CHIEF EXECUTIVE OFFICER, THE ISLE OF MAN LAW SOCIETY 251

APPENDIX 13: SUBMISSION DATED NOVEMBER 2015 FROM GRAHAM HURLEY 255

APPENDIX 14: SUBMISSION DATED 11TH NOVEMBER 2015 FROM MATTHEW WARREN 261

To: The Hon. Clare M Christian MLC, President of Tynwald, and the

Hon. Council and Keys in Tynwald assembled

REPORT OF THE SELECT COMMITTEE ON THE OPERATION OF THE JURY SYSTEM 2015-2016

I. THE INQUIRY

1. At its sitting in October 2015 Tynwald resolved:

2. Members appointed to the Committee were:

 Mr Robertshaw (who had proposed the motion in Tynwald Court);  Mr Malarkey; and  Mr Karran.

3. The Committee took written evidence from: His Honour Deemster Montgomerie; the Acting Attorney General; Mr Juan Watterson MHK, both as the Minister for Home Affairs on behalf of the Department and, separately, in a personal capacity; Mr Stephen Cregeen, the Chief Registrar; Mr Mark Lewin and Mrs Della Fletcher; Mr Iain McDonald, the Information Commissioner; Mr Juan Moore (on behalf of the Isle of Man Law Society); Mrs Joan Cook; Mr Graham Hurley; Mr Matthew Warren; and Mr C M Quirk. The Committee also received papers from the Criminal Justice Board, which had previously been prepared for another inquiry. 1

4. The Committee gave visiting Deemsters and the Isle of Man Constabulary an opportunity to send in written evidence, although none was received (other than a letter from the Chief Constable about the use of social media by the police).

5. The Committee took oral evidence from: His Honour Deemster Montgomerie, with Mr Stephen Cregeen, Chief Registrar; the Acting Attorney General and Mr Richard Butters, Director of Prosecutions; Ms Vicki Unsworth, Mrs Dawn Jones and Mr Jason Stanley, advocates; Mr Simon Cain, President of the Law Society; and Mr Mark Lewin, Director of Government Technology Services, and Mrs Della Fletcher, Executive Director – External Relations, both of the Cabinet Office. The Chief Constable gave oral evidence in private.

6. Members of the Committee also attended the preparation and swearing in of a jury in a case before the Court of General Gaol Delivery and had a very helpful initial informal meeting with the First Deemster, Judge of Appeal Tattersall QC, Deemster Montgomerie and Mr Stephen Cregeen, Chief Registrar.

7. The Committee is grateful to all those who assisted it in the inquiry.

8. The Committee is generally very supportive of the jury system and the central role which it gives to members of the public in deciding issues of guilt. However, there are a number of areas of concern, some arising from changes in ordinary life such as the advent of the widespread use of social media, which need careful consideration. We therefore agreed to base the inquiry on the following specific policy issues:

 Unusually difficult cases o Handling complex cases; o Judge only trials;  Composition of the jury o The size of the jury; o Majority verdicts; o Peremptory challenges;  Guidance o The potential impact of social media; o Support for the jury by way of advice;

o Jury training.  Summoning juries o The use of the Electoral Roll; o Exemptions from service and circumstances in which people may decline to serve; o Payment for service. II. GENERAL

9. Juries on the Isle of Man generally follow the English common law tradition in the way in which they are formed and operate. However, there are some notable differences in the law governing juries on the Island, in particular:

 in the number of those required to serve on a jury;  who is eligible to serve; and  whether a majority verdict is permitted. The English system

10. Before 2000, jurors in England were selected locally by the summoning officer of the court centre, but a Central Summoning Bureau has now been established at Blackfriars Crown Court. The Bureau operates on a national basis and randomly select names from the electoral register by computer, taking in to account the number of prospective jurors needed for each area. It is then responsible for issuing summonses and for dealing with applications for excusal and deferral.

11. The people selected in this way then receive summonses to attend the Crown Court at specified times. The jury for an individual case will be selected from the panel consisting of all the persons summoned, if the defendant has not pleaded guilty. The required number of jurors (twelve) is selected from the jury panel by ballot, conducted in open court. After an opportunity for challenges, the jury is sworn and the trial can begin.

12. The law on juries in England was substantially changed when Schedule 1, Part 1 of the Juries Act 1974 was amended to widen the range of people who are able to serve on a jury. Now, generally anyone who is on the electoral register and aged between 18 and 70 is eligible to be called for jury service in England, although some jobs make it less likely that a person will be required to sit as a juror. In Scotland, there is no upper age limit to sitting on a jury, although after

the age of 71 there is a “right to excusal” for those who wish to assert it and not sit.1

13. The changes to eligibility for jury service allowed a much wider range of people to be appointed to juries – including for the first time judges and legal practitioners, among others. We explored some of the reasons for the different approach in England from the rules on the Island, which in the case of those eligible to serve still follow the English rules dating from before their reforms.

The Isle of Man system

14. There were ten jury trials on the Island in the twelve months before we took evidence on this inquiry and this represents a small fraction of the cases before the courts.2 Of those, one resulted in an acquittal and in none of those cases did the jury fail to reach a verdict. In the last twelve years only three cases have resulted in a jury that failed to agree.

15. Witnesses involved in the trial process on the Island, whether advocates, judges or public servants, were uniformly firm in their support for the institution of the jury. Deemster Montgomerie’s comments were typical: “I consider that the jury system is the foundation of our criminal justice system”3 and “I certainly see no real concerns as to the future role of the jury”.4

Deemster Montgomerie described the process:

The jury system works on the basis of secrecy, other than their verdicts. They have all the evidence placed before them – only relevant evidence, only admissible evidence; they hear the detailed evidence-in-chief, cross- examination of witnesses; they hear the speeches of Counsel, where Counsel make their submissions; they hear my outline of the law, which is in effect done in consultation with Counsel – I will have spoken to Counsel beforehand; got their input as to my directions. So everything is done; so it is all in public. […] The jury then retire to consider their verdict.5

1 Criminal Justice and Licensing (Scotland) Act 2010, section 96 (of the Scottish Parliament). 2 Q.117 3 Q.1 4 Q.1 5 Q.30 4

16. The criminal law has changed a great deal, becoming ever more complicated. New and more complex offences and circumstances, especially in fraud cases, raise the question of whether some radical change is needed now to maintain the jury system as an integral part of the justice process.

III. UNUSUALLY DIFFICULT CASES

17. While the Committee accepts the central role of the jury in criminal cases, we are concerned that any necessary steps should be taken to ensure that the criminal justice system is robust and sufficiently flexible to be able to adapt to changing circumstances in the 21st century. We are concerned that the justice system should be able to cope with the exceptionally difficult cases that can arise in any system from time to time.

18. We especially wish to ensure that two particular areas of difficulty are adequately catered for: complex cases, which involve difficult technical issues; and very long trials, usually with several defendants. We note that in England and Wales it is open to the prosecution to ask a Crown Court judge to authorise a judge-only trial in exceptional circumstances, where a jury could not reasonably be empanelled which could deal with the case. The authority to dispense with a jury can only be made with the consent of the Lord Chief Justice, or someone authorized by him.

Handling complex cases

19. Although most trials are very simple issues of fact, there is growing scope for criminal trials to become much more complex, as new criminal offences are created in technical areas such as banking and financial services. We need to ensure that necessary steps are taken to guarantee that the jury system remains fit for purpose.

20. Complex financial issues affect a minority of cases.6 However, the reputation of the Isle of Man as a jurisdiction which is firmly attached to the rule of law means that the legal system on the Island must be able to deal with trials which may be long and may involve complicated facts.

6 Q.2 5

21. We note that Deemster Montgomerie did not think there was any need for legislation to provide for complex and long trials. He emphasised that his job, in cooperation with Counsel, was to present to the jury an agreed summary of the law and facts of the case. Sometimes, after discussing the matter with Counsel, he will consider that the jury will benefit from directions. In such cases, he does so in consultation with Counsel, making every effort to reach an agreed set of written directions for the jury. However, in most cases the direction to the jury was effectively very simple:

….in the majority of cases, it is my job as a Deemster to make the law as plain as possible to a jury. If anybody has been in any of the recent trials I have had, the questions for the jury, the law for the jury, has not needed to be written down because, in effect, it has just been one question: ‘Are you sure … ?’ etc. ‘Are you sure of this one question? If you are sure …’ I set out all the elements of the offence or the offences, but in the vast majority of cases, it boils down to one single question which I outline to the jury at the end and say, ‘Members of the jury, the real question you have to ask yourself on this count is: are we sure that … whatever?’ ‘If you are sure, then it is your duty to return a verdict of guilty; if you are not sure, it is your duty to return a verdict of not guilty.’7

22. A possible solution to the problem of complex matters in trials that has been mooted elsewhere is having specialist jurors sit on complex fraud or commercial criminal cases, either to assist the lay jurors or to make up the whole jury. We asked witnesses whether there was a case for this.

23. Mr Jason Stanley doubted the need for such provision:

In terms of the question that was raised about complex criminal offences or charges and lengthy trials, to my mind it is the function of the judge and the advocates to try and take the complexity out of those matters, so that in the vast majority of cases you can probably distil what might be viewed as a complex matter overall into probably some fairly straightforward issues. Usually most trials revolve around a key issue, such as dishonesty or intent or knowledge. Those are things which juries are good at deciding. So although you might look at a particular offence on the statute book and think, ‘Oh, this is a horrendously complex area of law’, in reality, I think most of those cases come down to a fairly simple issue: was a person aware of a particular fact; did they have the necessarily dishonest intention when the circumstances arose.

7 Q.31 6

So I am not sure that it is necessary that, although you look at a complex offence on the statute books, it necessarily translates into a complex trial that jury members could not understand.8

24. There was general agreement from Mrs Dawn Jones and Mrs Vicki Unsworth that it was for the advocates and the judge to make the case sufficiently simple, in the few cases that come to the Island of that complexity.9

25. Deemster Montgomerie was against mixing specialist and non-specialist jurors:

I do not think that you could have specialist jurors amongst normal jurors. I think that would create a real risk that the specialist juror or jurors could over- influence a jury’s deliberations.

I know some jurisdictions have given great thought to this area. One possible route would be, in an extremely complex case for example, for a Deemster to sit with two expert assessors to advise, but in those circumstances in reality you would have done away with the jury system.

So if you were to still retain the jury system, it seems to me that the only alternative in those circumstances would be to have an entire jury made up of specialists, but I think that is […] – for financial reasons if nothing else – not something that is really practicable.10

Option of judge only trials

26. In some jurisdictions the Defendant can elect to be tried not by a jury but by a judge, whether sitting with assessors or not; we asked whether this would be a useful innovation on the Isle of Man.

27. The Acting Attorney General said:

We have not experienced this here on the Island yet but where we are talking about a major fraud case, and if you look to the City of London you read of cases going on for 10 months or so, and I actually mentioned this to Mr Butters on the way here. I can see there could be circumstances in a situation like that where in our small jurisdiction again it would be nigh impossible to actually empanel a jury that could give us 10 months of their time, with the restraints of being a jury member that flow from it.

8 Q.191 9 Q.192 10 Q.3 7

I was exercising my mind whether some consideration ought perhaps be given to a sort of special type of court for that, where it could be a judge sitting with two experts to take it away from a general jury.11

28. Deemster Montgomerie did not think that it would be helpful or appropriate to replace a jury with assessors sitting with a judge in certain circumstances. He said:

I can think of no case in the Isle of Man up to date that would have warranted that and I am of the view that such a case is perhaps highly unlikely. It would seem to me that it would be perhaps unnecessary to create a specialist system for an area that is unlikely to arise.

29. Deemster Montgomerie further commented:

I believe very firmly in the jury system. I consider it is more appropriate for those people with serious crimes to be tried by their peers than be tried by a judge or a group of judges.12

He continued:

I do not consider that there is any case that I have come across in my practice as head, for many years, of the prosecution within the Attorney General’s Chambers and then as Deemster, that would have warranted it.13

30. Mrs Jones could see that there might be very limited cases where a defendant should have the opportunity to be tried by a different form of trial process. She told us:

I think we need to go back and acknowledge that the Isle of Man was very adventurous in 1989 and, under the Summary Jurisdiction Act, did away with the right, automatically, of election by jury trial in either-way offences. […]

In England, it is still your absolute right, for example, if you are charged with theft, that you can elect trial by jury. In the Isle of Man, you cannot. The decision always lies with the Magistrates’ Court, Deputy High Bailiff or High Bailiff. They will make a decision based on things like the amount involved, and they will take the prosecution's case at its highest and they will decide whether or not their jurisdiction is sufficient. If it is, then your right to jury trial is

11 Q.180 12 Q.5 13 Q.6 8

expunged. You do not have an automatic right in Isle of Man, for either-way offences, to say, ‘I want a jury trial.’

[…] I think that there are certain cases where it may be advantageous for a defendant to have the option to look at a different mode of trial. But I would always be on the side that it is the defendant’s choice. It should not be something that is foisted upon them. For example, at the moment – and this is perhaps something that I can be attacked on but it is something that I very much feel at the moment – the social perception of historical sex abuse cases has very much gone the way of the victim.14

31. Mr Stanley and Mrs Unsworth agreed that there are some areas where the subject matter is so emotive that it is very difficult for jury members to act in a dispassionate way and just look at the evidence as evidence, especially in some sex cases.15

Recommendations

32. The view of many of those involved in the criminal justice system is that there is no need to provide specialist jurors or specialist assessors to sit with a judge and that no cases up to now would have warranted a trial by judge only. However, we live in fast-changing times. As we mentioned earlier, we are concerned to make the criminal justice system on the Island as robust as any system elsewhere.

33. We note the comments of the Acting Attorney General that a long trial would probably be impossible to arrange on the Isle of Man. We also note the comments of the advocates about possible prejudice in cases involving sexual or other difficult issues. One advantage to the defendant of a judge sitting without a jury is that the verdict would have to be based on reasons given in court rather than by the secret jury process. There are circumstances where this may be an important advantage to a defendant and a guarantee that justice is done.

34. We also are aware that the Island’s reputation as a finance centre needs to be protected with a lively and active appreciation of the need to manage risk. We think that the Isle of Man courts need to be able to demonstrate to external

14 Q.187 15 Q.189, Q.192 9

observers such as Moneyval that we can handle all types of cases, including those with multiple defendants and the most complex of backgrounds.

35. We therefore make two recommendations to cover this:

We recommend that the option of a judge-only trial on information be allowed to defendants as a right.

We recommend that the option of a judge-only trial be available in those rare cases where, in the opinion of the court, it is not practicable to empanel a jury.

IV. COMPOSITION AND FUNCTIONING OF THE JURY

36. There are two main linked issues in relation to the composition and functioning of the jury: the number of those serving on the jury; and whether a majority verdict should ever be accepted.

The Size of the Jury

37. The size of the Jury in Isle of Man cases is based on section 24 of the Jury Act 1980:

The offence of treason or the offence of murder shall be tried by a jury of twelve persons. All other offences triable on information shall be tried by a jury of seven persons:

Provided that a Deemster may in the case of the trial of any person for any offence, by reason of the gravity of the matters in issue, direct that the offender shall be tried by a jury of twelve persons.

(In this context, trial on information means trial before a Deemster and a jury).

38. The number of jurors in England and Wales (on which the law on the Isle of Man is closely based) is twelve. Although there is nothing special about the 12- member jury, and there is some variation in the number of jury members in various jurisdictions, many common law jurisdictions have 12-member juries.

39. The number of jurors on the Isle of Man was reduced to seven for most cases in 1939, as a result of an emergency war-time measure that was supposed to be temporary. Seventy-seven years later this temporary provision has become a hallowed part of the Isle of Man criminal procedure.

40. The seven person jury attracted a lot of support from those involved in the criminal justice system.16 Advocates have grown used to seven as being the number of jurors on the Island. Those in charge of the administration of justice have a slightly easier task of empanelling a jury, as fewer members of the public need to be summoned for service. In a small community that is an important consideration.

41. As we discovered during our visit to the Court House, there are practical reasons why changing to twelve-person juries in every case would require some re- modelling of the court buildings, not least because the Court House has been designed with the seven person system in mind. Court 3 has 12 seats in it. Court 2 was initially designed for seven, but had 12 seats put in it. Only one jury room will take 12. The other jury room is for seven people. Occasionally two trials run at the same time, putting pressure on the system.

42. There would, of course, also be an impact on the number of people summoned for jury service, if the number of jurors were to be increased, even if the administration of the current system were to be streamlined and the number of jury trials were to remain the same.

43. In the absence of real data emerging from jury rooms, it is hard to gauge what impact the size of the jury might have on deliberations. Much of the comment, even from informed sources, must necessarily depend on guess-work. The following comments are typical of the evidence that we received when we asked what the optimum size of jury was and whether the Island should increase the size of its juries to 12, as in most other common law jurisdictions.

44. When asked whether the number of jurors should be increased, Mr Butters said:

I think there are arguments for and against. I am not trying to avoid the question but in relation to for instance, 12 people, there is argument in relation to that being a good number because you get a wide range variation of individuals, potentially good debate, good argument and therefore potentially a more reliable verdict.

However, conversely as we have put in the document, if there are fewer people my own personal view is that that enhances the argument because it means

16 E.g. Q.5 and passim 11

that there is a smaller group of people and therefore that number of people are better placed to argue their position.17

45. We explored whether it was possible that a dominant member of a jury – especially a small jury like a seven-person jury – who might, through force of character or other reason, take over the jury and force through a particular personal view.

46. Mr Butters replied:

I think it all depends who is actually in the panel. You could have 12 people, you could have eight people who are fundamentally inept at making a decision and four people who push the argument through. Whereas if you have seven, you could have seven incredibly intelligent people on the jury, all of which have a valuable input and therefore it makes no difference whether there are 7, 12, 14 or 9. So it really comes down to the individuals on that jury.18

47. Deemster Montgomerie commented:

Well, it is clearly an argument to say that the smaller the jury, the more susceptible it is to influence. I mean, that is a matter of common sense. Whether you would say that appertains with a jury of seven, jury of five, jury of nine, jury of 12, it is rather hard for me to say. I think, as a general principle though, I would agree that the smaller the jury, then the greater the possibility that one person could influence it.

48. Deemster Montgomerie also said:

I accept the argument for a larger number of jury. It can be argued, I accept that. I mean, of course, in Scotland it is 15 and in Scotland it is a simple majority. 8:7 suffices in Scotland, unlike the other countries within the United Kingdom which are on a 10:2 basis. So I appreciate that the Isle of Man is different in that regard. Whether that means that it is the time for change, that is really a matter for you. I cannot really comment on that.19

49. We note that when the Jury Act 1980 was passed the Isle of Man still had the death penalty for treason and murder. It is no coincidence that where a person’s life was at stake (at least in theory) greater certainty was needed. In order to

17 Q. 93 18 Q. 94 19 Q.12 12

achieve that, it seems that it was assumed that the 12-person jury should be retained.

50. We invited Deemster Montgomerie to consider the circumstances in which the 12-person jury might be empanelled and whether the range of cases where the range of cases where this was done might be increased. He said:

Well, the provision in the Jury Act at the moment – it is section 24 – is 12 in murder or treason and the Deemster can order a jury of 12 dependent on, the words are, ‘the gravity of the matters in issue’.

I think as I was able to inform you previously, there have been three occasions in the last 10 years when a jury has been increased from seven to 12 on that basis. Those have all been cases involving allegations of manslaughter.

I agree, just as I agreed there is an argument for increasing the number of jurors from seven, there is equally an argument for saying, ‘Well, we could keep it at seven for some, but increase the number of other matters that must be heard by a jury of 12’.

Of course as you will appreciate, as matters are at the present time, whenever there is a trial for murder or treason or the Deemster orders a jury of 12 because of the gravity of matters in issue, that jury of 12 must be unanimous. The unanimity applies not just to a jury of seven, but it applies to a jury of 12.20

51. There is no magic number that is better than another for the size of a jury. Clearly, the reason of wartime economy that led to the introduction of seven- person juries no longer obtains. We do not consider that seven-member juries should be abolished outright, however; we consider that the number of jurors should be changed in a wider range of cases.

52. In common with our predecessors in Tynwald who took care to preserve the 12- person jury in cases where, at least in theory, a life was at stake, we believe that 12-person juries provide greater security in reaching the right result. We are concerned that a single juror on a seven-person jury may well dominate the discussion. Whether this is because they are a forceful character or because they have been approached by the defendant or because one of the jurors has seen something on social media, we think that there is an inherent risk in a comparatively small number of jurors deliberating on serious cases.

20 Q.13 13

Majority verdicts

53. The Isle of Man is an exception in not allowing majority verdicts. Deemster Montgomerie drew our attention to those jurisdictions which allowed them:

 England and Wales: jury of 12; 10:2 majority allowed, but if a jury is reduced, the majority permitted is 10:1 or 9:1.  Northern Ireland: jury of 12, with a 10:2 majority allowed.  Republic of Ireland: jury of 12, with a 10:2 majority allowed.  Scotland: 15; with a 8:7 simple majority allowed to convict.21 (One advantage of this system is that, provided nobody is discharged from the jury, there will always be a verdict, because there is always going to be an odd number).  Jersey: jury of 12, with a 10:2 majority allowed.  Jamaica: jury of 12, with a majority of nine, except in capital cases. The trend tends to be majority verdicts allowed of 10:2, with a jury of 12.

54. We considered whether the law should be changed to allow majority verdicts in cases where a jury cannot reach a decision. Deemster Montgomerie noted the connection between introduction of majority verdicts and the numbers of those serving on a jury.22 We identified two areas of concern which might call for a solution involving majority verdicts:

 interference with jurors by defendants or their criminal associates; and  hung juries.

55. Deemster Montgomerie acknowledged that there were arguments either way for majority verdicts:

Clearly one can argue from the current state, that you know if you are convicted or if you are acquitted the jury has been unanimous in that decision, because unanimity is required on a verdict of guilty; unanimity is required on a verdict of not guilty.

21 There are proposals in Scotland to change this to a two thirds majority 10:5 22 Q. 17 14

On the other hand – and this is, perhaps, encroaching into the risks of social media – it could be argued that majority verdicts … I do not say completely eliminate but would distinctly reduce the possibility of a single member of the jury being targeted.23

56. The Committee was concerned about the vulnerability of the system to determined criminals who might be prosecuted on the Island “nobbling” a jury member. We were concerned that there was a potential for interference with juries by organized crime gangs, possibly through social media. All that might be needed was a single juror to be targeted and a verdict might either go the wrong way or (more likely) for there to be a hung jury. It would be easier for that group to target an individual in a small jurisdiction where addresses are more easily found out than in much larger jurisdictions.

57. Deemster Montgomerie thought the risk of jury nobbling on the Island was slight; most drug offenders, for example, are low on the pecking order of criminality: “very much expendables at the bottom end”, as he put it.24 They were not people who would be likely to warrant a criminal gang’s attempt to pervert a jury.

58. If the occurrence of hung juries is a symptom of jury nobbling, then there is little evidence of this having happened on the Island. In relation to hung juries, Deemster Montgomerie told us that since 2009 there have only been three cases out of dozens of trials where the jury has not reached a verdict.25 In the normal course of events, a hung jury means a retrial.26 Usually, a second hung jury would result in an acquittal. There is the outside possibility that a matter could be heard for a third time. That would only occur in very limited circumstances. There is very clear case law as to how serious a case must be in order for it to be heard for a third time.27

59. Mrs Unsworth gave similar evidence:

…if a jury member were to put something on Facebook or if they were to be nobbled by a comment on Facebook or Twitter, in fact, it would be far easier

23 Q.23 24 Q.25 25 Q.27 26 Q.27 27 Q.28 15

for a prosecution to be brought, because there is evidence of that. If we go back to the 1950s, when there was not social medical around and if we look at in particular some of the cases of the Kray Brothers, they were renowned for going around trying to nobble juries – and that was all hearsay: ‘He said … She said …’, it was much harder, potentially, to convict somebody for trying to interfere with the jury service then than it is now because you can pull that data. Even once it has been deleted, experts can pull that data back on Facebook and Twitter.

So the issue – which I do not believe is there in the Isle of Man – around nobbling juries, in particular, I do not believe it is there via social media.

If I can just bring you to the data that we have collated: between 2009 and 2013, there were only four cases in the Isle of Man where there was a hung jury. That means where the jury did not come back with a unanimous verdict.28

This includes the two occasions when the jury in the Attorney General’s case failed to agree.

60. Mrs Unsworth continued:

So in those four cases, between 2009 and 2013 – two of which were the same case – we have to look at, is there a problem of nobbling the jury? So if we are saying that only one jury member needs to be nobbled in order to get an acquittal, that is wrong. You would get a hung jury and then it can go back for a retrial. They are not acquitted: it is a unanimous acquittal or it is a unanimous guilty. One person, if they come back and say, ‘We cannot reach a verdict’, there is no verdict.

So if we are looking at the raw data available in the Isle of Man, is there a problem of nobbling the jury? No, there is not because we have only had four cases. If we look – I have got the General Gaol cases’ statistics for three years, because that is all I could get hold of… So between 2011, 2012, 2013, there were 245 jury trials. In that period of those three years, there were two hung juries. Both of those hung juries happened to be the Attorney General’s case. That is 0.03% of all cases tried by jury where a unanimous verdict, whether a not guilty or a guilty was delivered. Therefore, the raw data shows there

28 Q.199 16

actually does not appear to be a problem in terms of juries not being able to reach a unanimous verdict or this perceived problem of jury nobbling.29

61. Much of the evidence revealed a visceral dislike of majority verdicts among the lawyers who gave evidence. Mrs Unsworth’s evidence was typical:

Personally, I think the unanimous verdict is sacrosanct to our judicial system. It is my personal view. I have no bias. I am not a criminal practitioner. If I was put on trial tomorrow – which, heaven forbid, it will not happen; I can assure you I have not done anything naughty – I would want to know that there has to be a unanimous verdict to convict me.

I think the Isle of Man is unique in its approach and I think it is the right approach, because for a criminal conviction you have to find beyond all reasonable doubt that the person is guilty. Now my personal view is, if you have a jury of 12 men and 10 of them say you are guilty and two of them say you are not guilty, that is not beyond all reasonable doubt, because two people are doubtful of the fact that you have committed the crime.30

62. Mr Stanley spoke similarly,31 as did Mr Butters who said:

… For my part, I have a difficulty with majority verdicts. I have a difficulty with people being brought to a panel to deliberate on a trial to consider the evidence, sometimes for very many hours indeed and then simply to be dispensed with if the majority come to a decision different to one or two people on that panel.

I find that a difficult concept to appreciate, for a number of reasons but the biggest reason is that we are dealing with, as we have said before, people’s lives, people potentially going to prison for double-figure years, and for two people or one person, if we are talking about a panel of 12 to walk out of that court room shaking their head thinking, ‘Well, what on earth has gone on there? I personally think that person is not guilty but he is going to prison for 10 years.’ And yet we have dispensed with their view, and that seems wrong to me when we are looking at a very high burden of proof so that we must be sure. There can be no doubt before anybody is sent to prison and yet we are

29 Q.200 30 Q.208 31 Q.231 17

dispensing with two views who do have – […] [o]ne or two views who do have question marks.32

63. We accept that there is little evidence of juries having been interfered with in the past. However, we believe that it is prudent to make provision which is in line with other nearby and comparable jurisdictions, to prevent this from happening. We note the evidence of the Chief Constable in relation to tampering with juries in the United Kingdom. If this practice is prevalent in the neighbouring jurisdiction, then it would be foolhardy to dismiss it as not being a threat to the Island’s justice system.

64. We also believe that the range of offences which require a 12-person jury should be increased to improve the trustworthiness of the verdicts in important cases.

Recommendations

We recommend that:

The number of those serving on juries should be increased to 12 for all cases involving a maximum sentence of over ten years.

In cases where a twelve-member jury sits, a majority verdict of ten members should be allowed on the same basis as in England and Wales.

Peremptory challenges

65. Section 27 of the Jury Act 1980 allows the Attorney General (or his representatives) the right to unlimited peremptory challenges (i.e. challenges without giving a reason) and anyone else, including the defence, three such challenges; there is no limit to the number of challenges for cause, however:

(1) As heretofore accustomed, upon the trial of any person for an offence on information the Attorney General or any advocate on behalf of the Attorney General shall continue to have the unlimited right to challenge without cause individual members of a jury before they are sworn.

(2) A person (other than the Attorney General) who having a right to do so prefers an information and a person tried on information may challenge not

32 Q.129 18

more than three jurors without cause and any juror or jurors for good and sufficient cause.33

66. Presumably the reason for the different rights to peremptory challenges as between the prosecution and defence is that to allow the defence unlimited peremptory challenges would make it difficult to empanel a jury. However, the reason for having peremptory challenges seems vague.

67. Deemster Montgomerie was frank:

… I do not understand the reason for peremptory challenges at all. I can honestly say I have no idea of the justification behind it. The present system is that the prosecution has an unlimited number of challenges, without reason, and the defence have three before they have to give a reason.

I do indicate to the panel of jurors when they come into my court that there are many reasons for a challenge and that they should not reflect that a challenge reflects adversely upon them. So it seems to me there is nothing wrong with either the prosecution or the defence being required to indicate a reason for a challenge and particularly if a jury is going to be …

If you do recommend, at the end of the day, for example that the jury size should be increased, I think it is absolutely vital that members of the public who turn up for jury service – their civic duty – are not challenged and in effect discarded for no good reason. I consider that is disrespectful to those members of the public who have turned up.34

68. Evidence from defence advocates was quite different. Mrs Jones told us:

I get three challenges as the defence, without any reason whatsoever. So I can look at somebody who has been called – number seven – and decide, for no reason at all, I do not like the look of him or her and say ‘challenged’ and I am never, ever questioned on it.

33 Jury Act 1980, section 27. 34 Q.46 19

I tend to use them extremely rarely.35

69. Often Mrs Jones will go through the jury list which she receives just before the trial and declare to the prosecution any people who are known to her or the defendant, which results in the prosecution using their unlimited challenges to remove them from the jury.36 She said:

My three non-reasons are there if I just do not feel that they are the right sort of person to sit on this trial. I have learned over the years that you cannot judge a book by its cover.37

She did not like prosecution unlimited challenges, however.38

70. Mr Stanley agreed:

The way that I always dealt with that was to try making sure that a jury was balanced. So I would not want to see a jury which was entirely male or a jury which was entirely female or one that was entirely people at retirement age, or entirely people that were just out of school. I would like to see a balanced jury. Because we only choose seven, sometimes you can get five or six people who are all of a similar description, if you like.39

71. The Acting Attorney General disagreed:

I have concluded that I believe peremptory challenges are now outdated as a concept as there ought to be transparent and equal rights concerning jury selection process. I consider if either the prosecution or the accused makes a challenge to a juror that it should be on the basis of there being a good and sufficient cause for that challenge to be made.40

72. Deemster Montgomerie and Mr Cregeen confirmed that, if the Island’s courts moved away from peremptory challenges altogether and adopted a concept of reasoned challenges from both sides, that might reduce the number of potential jury members that would need to be called.41

35 Q 232,233 36 Q 232,233 37 Q.232, Q.233 38 Q.234 39 Q.235 40 Appendix 7 41 Qq.48 to 50 20

73. There appears to be no need to cap reasoned challenges. Deemster Montgomerie said:

We are dealing with people getting a fair trial. There may be some trials where nobody has in effect a valid reason to challenge any particular potential jury member. On the other hand, you may get a case where there are 10 challenges and if they are all justifiable, then in my view they should be entitled to be made ….42

74. There was general approval of challenges for cause. The reasons for challenges are not made public, so discretion is assured. If Counsel have a reason, that has to be written down. Normally, no objection is made to the objection for cause. Jurors are also given the opportunity to say why they should not sit, by handing a note to the judge who asks Counsel for their opinion.

75. We see no convincing reason to keep peremptory challenges and are of the opinion that they should be abolished and that challenges for cause should remain, as now.

Recommendations

We recommend that the right of the prosecution or defence in criminal trials to peremptory challenges should be abolished.

V. GUIDANCE FOR JURIES

The potential impact of social media

76. We were very concerned about the serious threat to the integrity of the jury process represented by the use of social media and the internet. This is a matter which has arisen in many other jurisdictions, with widely reported cases in England showing what damage can be done in the jury room by a juror who has googled the defendant or who has picked up knowledge of the case through social media.

77. There are two main areas of concern: that jurors may be targeted by way of social media; and that jurors may identify aspects of a case through social media or internet links.

42 Q.50 21

78. The warnings given to jury members about use of social media and the use of external sources for informing themselves about a case have developed in recent years, since the widespread use of social media. Deemster Montgomerie told us the warnings have changed beyond all recognition:

Of course, the words that I use – I specifically design them so they are in my tongue as opposed to perhaps another person’s tongue – are the words that are set out in the Judicial Bench Guidance to judges in England and Wales. So in effect juries get exactly the same warnings and cautions about their responsibilities in the Isle of Man as they do sitting on juries in England and Wales.43

79. There remains considerable concern among practitioners and those involved in the criminal trial process that social media and internet use threaten the jury system, especially in a small jurisdiction like the Isle of Man, compared to the UK where the case might very well take place far away from where the people live and the jury is utterly unknown to them.

80. Mr Stanley said:

Well, my personal view is that social media is quite a serious threat, if you like, to the process of justice. Juries are given a warning at the end of each day when they go home that they must not carry out any research, not to go to social media and look up about it or talk about it with other people. But, of course, there is just naturally a temptation for people to do that. So I think juries ought to be given very clear guidance certainly not to be looking at social media overnight while they are taking part in a trial.44

81. Mrs Jones backed this up:

I think that it is one of the potentially most dangerous areas that could impact on the right – or the fairness – of trials. But I suppose, as a society, we have to say that we trust the Manx public; that when they take that oath and they say that they will decide the case only on what they hear…45

82. The Island is a small place with small juries and it is easy to identify people and where they live; therefore there is a higher degree of risk of organized criminals

43 Q.41 44 Q.194 45 Q.194 22

targeting one member of the jury in order to ensure that unanimity does not occur and a verdict is never arrived at.

83. Deemster Montgomerie said:

I agree that there is a higher risk wherever you require a unanimous verdict, because as a matter of course you only need to target one particular person. Whether it is greater in the Isle of Man than elsewhere, again I think you can argue that two ways in that – without saying anything unkind about neighbouring jurisdictions – perhaps in serious cases there may be more, dare I say it, people who are more seriously involved in crime who will make attempts to influence a jury no matter how far the case is held away from a particular area.

Equally, of course, in the Isle of Man there is a pre-selection process for the jury in relation to ensuring, so far as possible, that none of the members of the jury have any connection at all with any of the witnesses in the case, any of the names which may even be mentioned in the case – not witnesses, just names that may crop up in the case – and have no connection with the defendant. And equally, of course, in my opening remarks I make it very clear to the jurors that they should immediately report to the Coroner any behaviour amongst themselves which causes concern, i.e. from another member of the jury who perhaps is acting, let us say, if I can put it this way, suspiciously.46

84. Mrs Jones mentioned a final point about social media. She objected to the police use of social media to comment on cases before the courts:

I think that I would like to go a step further back from that and say that one of the dangers, in my view, is the way the police use the social media. I think that the way that they use the social media, pre-trial, is something that should not be encouraged in any way, shape or form.

They comment on cases; they seem to pat themselves on the back on a regular occasion, prior to any decision being made in relation to a person's guilt or innocence. They seem to encourage comment from the public and they allow discussion on their forum which could be perceived as more authoritative than just the general postings on anybody else's own social site.

I think that we have all experienced cases where the social media discussion prior to trial could potentially affect the outcome of the trial, if somebody has

46 Q.24 23

read all that before they go into trial. I think that is the danger, not necessarily what is said whilst the trial process is going on. And that is something that I am very, very concerned about.

I do not believe that it is the police’s job to do anything of that nature. They disagree with me. They think it is a public … They describe it as it is, ‘just a new neighbourhood in our Island and we need to police it.’ That is fine; I get that. But should you really be putting something on about why somebody is charged; what they have been charged with and then allowing comment on it from the general public? To me, that is totally and utterly inappropriate.47

85. Mrs Jones’s points were firmly rebutted by the Chief Constable in a letter to the Committee.48 He pointed out that social media exist and that all modern organizations must use them in order to communicate with the public properly.

86. We offer no easy solution to this fast changing problem area. There are clear first steps, such as updating the guidance video for jurors and giving clearer guidance about the use of social media. Everyone involved in the administration of justice needs to be aware of the substantial risks posed to the integrity of the jury system by the misuse of social media. In addition, a substantial change needs to be made to the criminal law governing interference with juries to take the use of the internet and social media into account (see below).

Care and training of jurors

87. We inquired about jury training and during our visit to the courts saw the training film (made in the late 1990s) which prospective jurors are shown before proceeding into court for the final selection process. We realise that there are practical difficulties with empanelling jurors and then training them in routine cases.

88. Apart from the warnings about social media which we refer to above and the need to update the training video more often, we make no recommendations about training for jurors. However, one important gap emerged in the care of jurors during our inquiry. There is no counselling for jurors if they have sat on a difficult and emotionally draining case.49 To provide this would mean allowing

47 Q.195 48 Appendix 3 49 Q.84 24

jurors to speak about their experiences privately and, technically, in breach of their duty of confidentiality. There is a need to create a statutory exemption for jurors to be able to talk to somebody, in confidence, where they could unburden themselves without any sense of having to watch what they said.

89. We note that those who routinely are exposed to distressing evidence in the course of their professional lives, such as police officers, are entitled to psychological support as part of the duty of care owed to them by their employers. We believe that jurors are similarly entitled.

Recommendation

We recommend that specific provision be made to allow jurors to obtain counselling in difficult and emotionally draining cases and that any necessary changes to the law relating to non-disclosure be made to enable professional assistance to be given.

VI. SUMMONING JURORS

The use of the Electoral Roll

90. The current system for selection of jurors starts with selection of names from the electoral roll; letters go out to occupiers of houses. They complete the form. They will indicate whether someone is in one of the categories which is exempt from jury service. The names are then provided back to the Cabinet Office. There is provision to be exempt for certain reasons, for example on health grounds where a person can seek to be exempt from the jury list for up to three years. That is considered by the Clerk of the Rolls.

91. The full list is then provided to the Coroners before the beginning of September and they summon the jurors from that. The coroners proceed alphabetically, starting on 1st September continuing from the last name used on the old list. Those who have done jury service are recorded as well as those who are exempt.50 Each Sheading has a separate list.51

92. At the moment, within the Jury Act, there is a Schedule of exempt categories. That is quite extensive compared to England and Wales, but similar to the

50 Q.57 51 Q.59 25

Republic of Ireland. There does not seem to be any checking of claims for exemption.52

93. When people are summoned, they can seek excusal. So they could write in to the Chief Registrar and say, ‘I have been summoned for jury service but I am actually going to be off the Island during this period.’ Normally, they would then be excused from that jury appearance, but would then be called at some time in the future.53 About 50% of those summoned are excused (from service that time).54

94. Mr Cregeen mentioned that more could be done to identify at a particular time of the year those who may be called for jury service over the next 12 months, to get them to identify when they are not available. This would allow fewer jurors to be called at a particular time.55

95. Mark Lewin, Director of the Government Technology Services, in his paper dated 17th December 2015 told us:

27. As at the 1st October when the electoral roll was re-issued the total number of eligible voters (residents who were 16 and over who were entered as part of a completed form) was 49,097 whereas according to Economic Affairs predictions as at April 2015 the estimated adult population (residents who were 16 and over) would have been 70,647.

28. Those on the roll who were listed as eligible for Jury Service amounted to 31,988 against an Economic Affairs prediction of 52,765.

29. In other words over 30% (or 21,550) of the total estimated population aged 16 years and above do not appear to be included in the electoral roll and this rises to 40% (or 20,777) of the smaller set of estimated residents aged 16 to 65.56

96. This is a cause for grave concern, not least because it undermines both the electoral process and the system of juries – two key elements of public governance. This is one of the most serious failings of the current system and requires urgent remedy.

52 Q.64 53 Q.55 54 Q.75 55 Q.70 56 Mark Lewin paper 17th December 2015 – Appendix 9 26

97. We asked Mark Lewin, Director, Government Technology Services, Cabinet Office, for details of how to provide for a better method of collecting the names of those who were liable to serve on juries.

98. His solution was a single central citizen database as the most appropriate way to produce with confidence a summary of citizens on the Island eligible for Jury Service. Such a central list could (subject to appropriate legal and political framework) be automatically compiled and maintained by pooling data from other sources which are far more accurate.57

99. In Jersey a central register exists for all residents (as defined in law) holding basic information (Name, Address, Date of Birth, Social Security Number and Date of Residency) and is proposed to be used as the basis for producing the electoral roll as well as for health screening.

100. The idea behind the central register is that it would be easily accessible to individual citizens to ensure that their information was accurate and up to date. It would allow them to check their own personal details online or at registered locations and serve as the basis for a single government record for each citizen. The jury lists and electoral roll would be replaced by the single list of citizens with relevant data.

101. There would be many advantages to this which are outside the scope of the inquiry, but we are certain that such a scheme would provide a secure base for data about citizens and also ensure a fairer application of the rules relating to voting and jury service.

Recommendation

Recruitment of jurors should be modernised so that the names are collected from a centrally held universal list of citizens, not based on Sheadings, but with safeguards to allow a mixture of jurors from various parts of the Island.

Recruitment of jurors should be streamlined to allow early claims for deferral.

57 Appendix 2 27

The Cabinet Office should lead a cross-Government working group to consider, investigate and propose the principles for a centralised Citizen Database as follows:

o To consider the whole of the Public Service and identify any services in addition to electoral roll and jury service that could benefit from such a central register;

o To consider the method by which the database could be constructed automatically from existing systems to provide as accurate a record as possible;

o To consider the legal framework required to facilitate the creation and maintenance of such a database;

o To consider the costs and plan, together with the benefits, and report to Tynwald.

Exemptions from service and deferral

102. One major difference between the jury system in England and Wales and the system on the Isle of Man is that there is a much greater range of those who may serve on juries in England – even judges. This is because the maximum age in England and Wales is 70 and because the list of ineligible persons is much reduced. The approach is that everyone potentially is eligible, but that they may claim exemption for cause.

103. We considered whether there was a case for extending the scope of those who are required to serve. Should the law on jury service follow the law in England and Wales and allow, for example, lawyers and judges to serve? Would the law be improved if everyone was technically liable to serve but if particular persons (e.g. serving Deemsters, police) could be excused for cause, such as that they might need to sit on an appeal or they might know the Defendant or be perceived as biased? We note that Judges serve to a greater age than jurors; should the upper age limit of jurors be increased to 75 years?

104. Deemster Montgomerie agreed:

I think there are a number of persons or types of persons within the current exemptions that could be changed. Equally, if it was felt appropriate then the age could be increased as well. Sixty five seems, perhaps, rather a – given the

changing times, if I can describe them as that – low age now, in my personal opinion, for somebody to be precluded from sitting on a jury.

So far as the categories that currently exist, I think we perhaps, in a compact jurisdiction such as the Isle of Man, have to be a little bit careful of some of the categories.58

He thought that lawyers, police and those involved in the administration of the courts should be exempt, taking into account the size of the Isle of Man as a jurisdiction.59

105. Deemster Montgomerie objected to having no exemptions at all but allowing everybody to put forward a reasoned objection to their service at any one particular time. He said:

I think your problem with that would be the numbers of people that you would need then to summon potentially, because that would exponentially, perhaps, increase the numbers of persons that would have to be excused prior to trial.60

Equally, it would be perhaps increasing the bureaucracy and administration of those dealing with the applications for recusal from jury.61

106. We conclude that the maximum age for service on a jury should be raised to 75, with an option (as in Scotland) for excusal for those aged 71 and over. We think that the list of ineligible persons should be revised heavily; in principle we believe that everyone should be eligible except those involved in the administration of justice (including police officers) and Members of Tynwald. Others with public duties should be allowed excusal for cause.

Recommendation

The maximum age for service on a jury should be raised to 75, with an option (as in Scotland) for excusal for those aged 71 and over.

Everyone should be eligible to serve on a jury, except those involved in the administration of justice (including police officers) and Members of Tynwald. Other persons with public duties should be allowed excusal for cause.

58 Q.65 59 Q.65 60 Q.67 61 Q.69 29

Payment for service

107. There is a problem with payment for jury service. The present position is that an employer is obliged to permit an employee who is summoned to serve as a member of a jury to take time off during his/her working hours for the purpose of obeying the summons: section 39(1) Employment Act 2006. The Act is silent as to remuneration of the employee by the employer during the time of their jury service. However, as section 32 of the Jury Act 1980 provides for remuneration of juries at £56 per day – with the Treasury having the discretion to pay a further £57 per day after the first 10 days for trials in the Court of General Gaol Delivery per the Jurors (Supplementary Payments) Scheme 2003 – it would be contrary to public policy for a juror to be entitled to be remunerated twice for doing his/her civic duty.62

108. On the basis of a 7.5 hr average day, £57 equates to £7.60 per hour, which is only slightly more than the minimum wage (£7 for 21+, £6.65 for 18+, meaning that many people summoned for jury service would be out of pocket if the employer did not agree to pay them at least the difference between the statutory allowance and their usual salary.

109. The position in England and Wales is that employees summoned to serve on a jury are protected under the Employment Rights Act 1996 from being subjected to a detriment or being dismissed as a result of jury service. There will be no detriment for the purposes of the legislation if remuneration is not paid to the employee for periods when he is absent from work on jury service unless he is entitled to such remuneration under his contract of employment. However, it is not automatically unfair to dismiss an employee who unreasonably refused, or failed, to apply to be excused jury service (or have it deferred) in circumstances in which the employee’s absence on jury service would cause substantial injury to the employer’s business and that had been brought to the employee’s attention.

110. The Civil Service Regulations Section F makes the following provision for remuneration of Civil Servants who serve on juries:-

62 Q.85 30

48. Jury Service

Any civil servant summoned for jury service shall be granted special leave with pay. In these circumstances any allowance paid to the civil servant as compensation for loss of earnings that have not in fact been lost shall, on his return to work, be paid in full to his Accounting Officer who shall transmit the same to the appropriate pay section. Provided that where a civil servant is required to perform jury service on a day on which he was not scheduled to work (i.e. on a weekend, rest day or during a period of leave) he shall be permitted to retain the juror's allowance paid to him in respect of that day.

Any allowance paid to him for travelling expenses and parking fees may be retained by the civil servant.

A civil servant receiving a summons to serve on a jury should inform his Accounting Officer immediately unless he is clearly ineligible or disqualified and has so notified the Coroner (or his Lockman).]

111. There is a particular problem with the self-employed and especially those in small businesses, who can suffer considerable financial loss. There is also the difficulty that those who are concerned for the business may not concentrate adequately on the case.

Recommendations

We recommend that section 39 of the Employment Act 2006 should be amended to impose a duty on employers to continue to pay those staff who serve as jurors as if it were a normal working day, with safeguards for employers with fewer than 40 employees. The general payment of expenses (other than travel and refreshment) should be abolished and the money saved should be used to compensate properly those whose employer will not pay them and who establish hardship.

VII. CRIMINAL LAW

112. The Isle of Man has two offences that cover anybody interfering with a jury. If it is by a single person, section 347 of the Criminal Code 1872, doing an act against public justice, commonly known as attempting to pervert the course of justice, applies. If there is a conspiracy, where more than one person is involved, then section 330 of the Criminal Code 1872 applies. The maximum penalty for

conspiracy is ten years; doing an act against public justice by a single person carries two years.

113. Deemster Montgomerie thought that if it was felt that there was a further deterrent required, specifically publicised in an endeavour to make it clear no one should get involved in attempting to influence juries, it would be possible to bring in specific jury misconduct provisions relating both to jurors themselves and to persons who attempt to influence them.

114. There was general agreement among witnesses that it would be useful to update primary legislation, because the 1872 Criminal Code does not really reflect modern conditions. In particular, as we noted above, the law on interfering with jurors needs to take into account the use of the internet and social media as they continue to develop.

Recommendation

We recommend that the Government engage in a comprehensive overhaul of the 1872 Criminal Code provisions in relation to juries, which should include outlawing conscious use of the internet and social media in a way which undermines the jury process.

VIII. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

115. The Committee agreed the following recommendations:

1. We recommend that the option of a judge-only trial on information be allowed to defendants as a right. (Paragraph 35)

2. We recommend that the option of a judge-only trial be available where, in the opinion of the court, it is not practicable to empanel a jury. (Paragraph 35)

3. The number of those serving on juries should be increased to 12 for all cases involving a maximum sentence of over ten years. (Paragraph 64)

4. In cases where a twelve-member jury sits, a majority verdict of ten members should be allowed on the same basis as in England and Wales. (Paragraph 64)

5. We recommend that the right of the prosecution or defence in criminal trials to peremptory challenges should be abolished. (Paragraph 75)

6. We recommend that specific provision be made to allow jurors to obtain counselling in difficult and emotionally draining cases and that any necessary changes to the law relating to non-disclosure be made to enable professional assistance to be given. (Paragraph 89)

7. Recruitment of jurors should be modernised so that the names are collected from a centrally held universal list of citizens, not based on Sheadings, but with safeguards to allow a mixture of jurors from various parts of the Island. (Paragraph 101)

8. Recruitment of jurors should be streamlined to allow early claims for deferral. (Paragraph 101)

9. The Cabinet Office should lead a cross-Government working group to consider, investigate and propose the principles for a centralised Citizen Database as follows:

 To consider the whole of the Public Service and identify any services in addition to electoral roll and jury service that could benefit from such a central register;

 To consider the method by which the database could be constructed automatically from existing systems to provide as accurate a record as possible;

 To consider the legal framework required to facilitate the creation and maintenance of such a database;

 To consider the costs and plan, together with the benefits, and report to Tynwald. (Paragraph 101)

10. The maximum age for service on a jury should be raised to 75, with an option (as in Scotland) for excusal for those aged 71 and over. (Paragraph 106)

11. Everyone should be eligible to serve on a jury, except those involved in the administration of justice (including police officers) and Members of Tynwald. Other persons with public duties should be allowed excusal for cause. (Paragraph 106)

12. We recommend that section 39 of the Employment Act 2006 should be amended to impose a duty on employers to continue to pay those staff who serve as jurors as if it were a normal working day, with safeguards for employers with fewer than 40 employees. The general payment of expenses (other than travel and refreshment) should be abolished and the money saved should be used to compensate properly those whose employer will not pay them and who establish hardship. (Paragraph 111)

13. We recommend that the Government engage in a comprehensive overhaul of the 1872 Criminal Code provisions in relation to juries, which should include outlawing conscious use of the internet and social media in a way which undermines the jury process. (Paragraph 114)

C R Robertshaw (Chairman)

P Karran

W M Malarkey

June 2016

ORAL EVIDENCE

35 36

9th February 2016 Evidence of His Honour Deemster Montgomerie and Mr S Cregeen, Chief Registrar

37 38

S E L E C T C O M M I T T E E O F T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G E R – L H E H T I N V A A L

P R O C E E D I N G S D A A L T Y N

OPERATION OF THE JURY SYSTEM

HANSARD

Douglas, Tuesday, 9th February 2016

PP2016/0031 JURY, No. 1

All published Official Reports can be found on the Tynwald website:

www.tynwald.org.im/business/hansard

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2016 39 SELECT COMMITTEE, TUESDAY, 9th FEBRUARY 2016

Members Present:

Chairman: Mr C R Robertshaw MHK Mr P Karran MHK Mr W M Malarkey MHK

Clerk: Mr R I S Phillips

Contents Procedural ...... 3 EVIDENCE OF His Honour Deemster Montgomerie and Mr S Cregeen, Chief Registrar ...... 3 The Committee adjourned at 5.50 p.m...... 28

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Select Committee of Tynwald on the Operation of the Jury System

The Committee sat in public at 4 p.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR ROBERTSHAW in the Chair]

Procedural

The Chairman (Mr Robertshaw): Deemster Montgomerie, Mr Stephen Cregeen, thank you very much for attending this afternoon; we are most grateful to you. My name is Chris Robertshaw. I am Chairman of the Select Committee on the Operation of the Jury System. To my left is Mr Malarkey MHK; to my right, the Clerk of Tynwald and to my far 5 right, Peter Karran MHK. The Committee this afternoon is taking evidence on the operation of the jury system in the Isle of Man. Now, for any members of the public, could I please ask you very kindly to make sure that your mobile phones are turned off. In the extremely unlikely event of the fire alarm going off, please use the exit indicated. 10 If I can also make the usual point that witnesses and members of the Committee are asked not to talk at the same time so that the record is clear.

EVIDENCE OF His Honour Deemster Montgomerie and Mr S Cregeen, Chief Registrar

Q1. The Chairman: We very kindly heard, in private session, from the judiciary at an earlier stage. We have deliberated carefully on what you very kindly told us at that time and we have assembled some questions for a more formal session. 15 To reiterate, the Committee have decided that they are interested in a number of issues: the size of the jury, the potential impact of social media, peremptory challenges, majority verdicts, exemptions from service and circumstances in which people may decline to serve, support for the jury by way of advice, the electoral roll, payment for service and jury training. So with that, if we can turn first of all to a few general questions. The jury is essentially 20 unchanged from a century ago, other than allowing women and removing any property qualification and of course the alteration in 1939 which changed the size of the jury. Is the jury going to remain fit for purpose as the criminal law becomes more complex and trials last longer, Deemster Montgomerie?

25 Deemster Montgomerie: Well, first of all, can I thank the Committee for inviting me to attend. I am delighted to come and assist in any way that I can, subject of course to the normal divides between judiciary and legislature.

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In response to your question, certainly I consider that the jury system is the foundation of our criminal justice system. I have now been a Deemster handling jury trials for some 12 years; since 30 2004 on a part-time basis, initially; for the last five years on a full-time basis. I certainly see no real concerns as to the future role of the jury.

Q2. The Chairman: Does the complexity issue concern you, bearing in mind that the Isle of Man is now a finance sector? Is it a lot to ask of a group of individual jury members, simply taken 35 from the list, to grasp quite complex issues when even those in the finance sectors themselves sometimes now cannot grasp some of the issues, and perhaps that is why we have had some of the financial crises that we have had?

Deemster Montgomerie: The vast majority of jury trials on this Island do not relate to 40 financial matters. Financial matters before juries in the Isle of Man: I would not have the exact percentages, but certainly it would be single figures. A jury receives directions from the judge as to the law. In a more complex case, the jury will receive written instructions as to the law from the judge and it is the role of Counsel in a trial, just as it is the role of a judge in a trial, to explain the law as straightforwardly as it can be set 45 out. In answer to your question, I think for 90-something percent of trials, cases are not particularly complex. For that small percentage that may arise, I certainly do not foresee any problems; there certainly have not been, in any financial cases in the past on the Island, of juries dealing with written instructions as to the law as well as it being explained to them. 50 I think we perhaps have a tendency to underrate juries. I have found throughout my time as a practitioner in front of them and then as a judge, I certainly have found that juries do grasp issues, do pay close attention throughout to all the evidence that is put before them, respective speeches and summings-up.

55 Q3. The Chairman: So bearing in mind that we do have seven-person juries, do you not therefore, in the light of what you said, think there is a case from time to time to have an element of specialist jurors on, to assist the process – who have a high-level and high-degree of understanding of the issue – as might be the case in other jurisdictions?

60 Deemster Montgomerie: I do not think that you could have specialist jurors amongst normal jurors. I think that would create a real risk that the specialist juror or jurors could over-influence a jury’s deliberations. I know some jurisdictions have given great thought to this area. One possible route would be, in an extremely complex case for example, for a Deemster to sit with two expert assessors to 65 advise, but in those circumstances in reality you would have done away with the jury system. So if you were to still retain the jury system, it seems to me that the only alternative in those circumstances would be to have an entire jury made up of specialists, but I think that is rather – for financial reasons if nothing else – not something that is really practicable.

70 Q4. The Chairman: But going back to one of the points you just touched on there, do you see any circumstances where you think it might be helpful or appropriate to not have a jury, but a set of assessors in certain circumstances?

Deemster Montgomerie: I can think of no case in the Isle of Man up to date that would have 75 warranted that and I am of the view that such a case is perhaps highly unlikely. It would seem to me that it would be perhaps unnecessary to create a specialist system for an area that is unlikely to arise.

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Q5. The Clerk: What would your view be of allowing defendants to elect to be tried by a 80 judge, because there are circumstances where they may want to have that form of reasoned judgement rather than just a straightforward guilty verdict?

Deemster Montgomerie: I believe very firmly in the jury system. I consider it is more appropriate for those people with serious crimes to be tried by their peers than be tried by a 85 judge or a group of judges.

Q6. The Clerk: But there are quite a number of respectable jurisdictions, such as Canada, that allow this option.

90 Deemster Montgomerie: There are a number of jurisdictions, equally as respectable, that do not allow the option. It is a matter, clearly, that the Committee will consider, but certainly I do not consider that there is any case that I have come across in my practice as head, for many years, of the prosecution within the Attorney General’s Chambers and then as Deemster, that would have 95 warranted it.

The Chairman: The next question I think you will find interesting.

Deemster Montgomerie: I have found them all interesting, sir! (Laughter) 100 Q7. The Chairman: This one concerns the feature of the current system and its secrecy surrounding the deliberation of juries. What would be the problems with allowing controlled research – anonymised research obviously – into actual cases, on the basis that any results would be, as I have said, anonymised, in order to get an in-depth understanding of what 105 happens without personalising it?

Deemster Montgomerie: Can you perhaps be clearer of what you are specifically asking me?

Q8. The Chairman: The whole process of what happens in a jury is, shall we say, unknown 110 because it is secret. But if it were possible to conduct an exercise, which was a research process, which established parameters and understood the dynamics of the jury and how it functioned and then reported on that in an anonymised way … Have I made the question sufficiently clear?

115 Deemster Montgomerie: Yes. Yes, you have. I suspect that you would find it of little use and the reason I say that is because, whilst I obviously have no knowledge of what goes on within the four walls of a jury when they are deliberating on their verdict, I suspect that each and every jury is very much different to the previous. I rather doubt that there is any set pattern that could be worked out from one such 120 exercise. Perhaps if you were to conduct numerous such exercises, a pattern may emerge but I would consider it very dangerous, in fact, for it to be conducted on the basis of one, even two, even three cases, simply because of the variation. We are dealing with members of the public, from all walks of life; many different facets, all coming together which create a dynamic and inevitably that dynamic will alter depending on the 125 particular constituents.

Q9. The Clerk: I think, perhaps, lurking behind the question was the assumption that there would be several cases and that you would be looking for patterns, because that is what is of interest: to check whether there is any sort of racial prejudices, or any prejudices about 130 particular people for whatever reason, or any particular patterns you can identify about how a

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decision is reached, and so on. So to some extent it would be for the researchers to show that they had a coherent plan for their research. I think what the question is perhaps about is whether the contempt of court rules ought to be changed to be a bit more flexible, to allow researchers access to real juries and discuss with 135 them how they reached their verdicts?

Deemster Montgomerie: My personal view is no. I think the jury system, throughout the world, operates on the basis of secrecy. The purpose of the jury service is to come up with a decision: either guilty or not guilty. The whole jury system works on the basis of jurors following 140 the directions given by the judge to them. The judge, in his opening remarks, makes it perfectly clear; sets down the parameters as to how they should behave; how they should look at cases fairly, et al. That is the basis of how the system works. Potential jurors are asked if there is any reason why they feel they should not sit, before they are even impanelled. One has to rely on people in effect being honest. That is how the jury 145 system works. Equally, I think it would be fair to say that, if there was any suggestion that juries in effect were somehow taking into account extraneous matter that they should not be or prejudices, those would be reflected in the verdicts. Certainly, as I have concluded, I think, to every single jury who I work with … I use those words at the end of a jury trial. I always indicate it has been 150 ‘my privilege’ to work with them, because their manner throughout the case, notes that they will pass up during the case, make it perfectly clear that certainly to all intents and purposes, they are acting honestly, considering matters fairly, taking my directions on the law. So I think it would be an exercise searching for something that is not there, or certainly we have no evidence and there is nothing to suggest it is there. 155 Q10. Mr Malarkey: Would you not believe that it is possible that a dominant member of a jury – especially a small jury like a seven-person jury – who might be well-spoken and slightly educated, could actually lead to a degree and take over the jury and make the jury come up with what his thoughts are rather than their own independence? 160 The Chairman: Before you answer, Deemster, could I just say that we will actually skip now and go to the issue of size of juries and allow Bill’s question to start that process off. So over to you, sir. Did you finish the question? 165 Mr Malarkey: Well, yes. It was more, necessarily, on the seven-person jury rather than the 12-person jury, but I feel that somebody who is well-spoken and a born leader could actually lead a small jury the way he or she wanted to lead them.

170 Deemster Montgomerie: Well, it is clearly an argument to say that the smaller the jury, the more susceptible it is to influence. I mean, that is a matter of common sense. Whether you would say that appertains with a jury of seven, jury of five, jury of nine, jury of 12, it is rather hard for me to say. I think, as a general principle though, I would agree that the smaller the jury, then the greater the possibility that one person could influence it. 175 Q11. The Chairman: But given that the tradition and the identity of juries across the islands of Britain has in broad terms been 12, and that we, sort of by accident, arrived at seven, as a reaction to difficulties that the Second World War provided, and there was no return to it – so it was not a decision to go to seven; it was a set of circumstances – we then remained with seven, 180 whereas other jurisdictions returned to 12, do you not feel that a 12-person jury is safer? Because I think there is a little bit of caution even in your words, Deemster, that there is – I do

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not want to put words into your mouth – a possible degree of increased bias occurring in a small jury, particularly as Mr Malarkey said, if you have got one dominant person in a small group.

185 Deemster Montgomerie: Well, it would be fair to say that if one looks at the history since 1939 that when the Jury Act 1960 was passed, prior to that the specific size of a jury remaining at seven was referred to during the Bill’s clauses consideration in the Legislative Council and nevertheless it remained at seven in the 1960 Act. And of course it remained at seven in the 1980 Act, albeit except there was nothing to show that the actual size was specifically 190 reconsidered for the 1980 Act.

Q12. The Chairman: But at the time that it went to seven, the feeling in the Keys was, as I recall, a determination to return from seven back to 12, because it was only an emergency measure and actually it was right to be at 12. 195 How can I put this gently? The level of legal representation within the Keys at that time was perhaps higher than it is now, and never let it be said that the legal profession stand together, Deemster Montgomerie, but I might suggest that. I mean, a House of today might think differently. I put that to you.

200 Deemster Montgomerie: I accept the argument for a larger number of jury. It can be argued, I accept that. I mean, of course, in Scotland it is 15 and in Scotland it is a simple majority. 8:7 suffices in Scotland, unlike the other countries within the United Kingdom which are on a 10:2 basis. So I appreciate that the Isle of Man is different in that regard. Whether that means that it is the time for change, that is really a matter for you. I cannot really comment on that. 205 Q13. The Chairman: Okay. Would you then comment on the issue that we still retain 12- person juries for – forgive me, I am not quite sure of the correct terminology – a serious issue of murder or treason? To somebody being placed in a court where it could result in many years in prison, that is a profoundly serious matter to them. Do you see any argument for saying, ‘Okay, 210 there is some room for seven, but maybe we should extend the areas which a 12-person jury might rightly be allocated to’ – widening the remit, if you like then?

Deemster Montgomerie: Well, the provision in the Jury Act at the moment – it is section 24 – is 12 in murder or treason and the Deemster can order a jury of 12 dependent on, the words are, 215 ‘the gravity of the matters in issue’. I think as I was able to inform you previously, there have been three occasions in the last 10 years when a jury has been increased from seven to 12 on that basis. Those have all been cases involving allegations of manslaughter. I agree, just as I agreed there is an argument for increasing the number of jurors from seven, 220 there is equally an argument for saying, ‘Well, we could keep it at seven for some, but increase the number of other matters that must be heard by a jury of 12’. Of course as you will appreciate, as matters are at the present time, whenever there is a trial for murder or treason or the Deemster orders a jury of 12 because of the gravity of matters in issue, that jury of 12 must be unanimous. The unanimity applies not just to a jury of seven, but it 225 applies to a jury of 12.

The Chairman: Thank you.

Q14. Mr Karran: That was the issue that I wanted to raise. If you were to sympathise with the 230 increase in the number of jurors, would you want to keep the unanimous verdict as far as that is concerned, or would you see there would be an argument to go a majority verdict, either similar to Scotland or to the English system?

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Deemster Montgomerie: It is perhaps bringing it onto another area – 235 Q15. The Chairman: Deemster, could I stop you for a second, because we are going to go to majority verdicts in a second. Mr Karran, can we come back to your question in a second? Just one closing comment or question from me on the size of the juries … Could we just look 240 at the practical issues related to a possible decision to increase the number of jurors to 12, in practical terms, in your courts. Then we will perhaps hear from Mr Cregeen in a second as well.

Deemster Montgomerie: So far as the practicalities in relation to myself as a Deemster, the practicalities relate to for example matters like breaks. I have mid-morning breaks, mid- 245 afternoon breaks, for the jurors. If there are particularly a number of women on a jury then, when you have 12 jurors, given that there is only one female toilet, that can lead to a very long break mid-morning, mid-afternoon. That, in reality, is the only practical side-effect, if I can put it this way, so far as I am concerned, of having a jury of 12. There are others in relation to Coroners’ expenses, facilities, etc. which perhaps the Chief 250 Registrar is better equipped at answering.

The Chairman: Mr Cregeen, I look forward to hearing from you.

Q16. Mr Malarkey: Just one question. 255 Sticking to the same size of jury: of all the submissions, we are always talking about seven and 12. In fact, you, this afternoon, Deemster, were the only person who was actually throwing in nine or other figures. How would you feel if we were not talking seven-person, we were actually talking nine- person? We seem to be just talking seven, 12, with a big gap in between. I have hesitations 260 about some of the problems, with only having seven, being dominantly led by one member. How would you feel if all juries were nine or all were 11 or all were 10?

Deemster Montgomerie: Well, actually there is a state in Canada which has six; Hong Kong has seven and Malta has nine. So amongst – if I can put it this way – Commonwealth or former 265 Commonwealth jurisdictions, there is diversity. I think your increase in numbers, if I can be so bold, would probably depend on whether or not you considered bringing in majority verdicts. I think you then, dependent on the ratio that you have as to majority verdicts, I think assists you in coming to the appropriate number.

270 Q17. The Chairman: Mr Cregeen, could you address that point that we were looking at: the practicalities of increasing, to whatever level, the average juries?

Mr Cregeen: Yes, Chairman. The Courthouse, I believe, was designed and built on the basis that normally it would be 275 seven-person juries; although Court 3 was designed with 12 seats for the jury for murder trials, and there were 12 put into Court 2, although it is a bit of a squash. The facilities are limited there, so we probably would not be in the position of operating two 12-person jury trials at the same time. From time to time at the moment, we do operate two seven-person jury trials, so we can have one in Court 2 and one in Court 3. The facilities we have 280 got would probably – if we were on 12-person juries – not facilitate that. There would also be the need to summon additional jurors. At the moment there is a minimum of 20 summoned and we have a number of excusals. If you were going to a 12-person jury, you would have to summon more and ensure that there were sufficient potential jurors turning up. In the more highly-complex, multi-handed trials, then the numbers involved that you 285 would be summoning would be quite significant.

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Then there would also be the general costs of payments to jurors, etc. if you are dealing with a 12-person jury that you would have, if the trial was going on for a couple weeks, you would almost be looking at near enough doubling the general running costs of jury trials as far as the costs that we incur for jurors at the moment. 290 Q18. The Chairman: So how many – if you can tell the Committee – potential jurors – whatever the word is – do you call for a seven-person jury, and how many do you call for a 12- person jury? What are the present rules?

295 Mr Cregeen: I think at the moment they are looking at, if it is just a single defendant, fairly straightforward case, probably looking at 30 to 35 jurors are being summoned.

The Chairman: For a seven?

300 Mr Cregeen: Yes.

Q19. The Chairman: And how many for a 12? Pro rata up is it?

Mr Cregeen: It would be up. But it can be – if it was a high-profile case – then in certain trials 305 we have had probably in excess of 100 called for some high-profile cases, because potential jurors may well know the defendant, may well know witnesses and all that, so therefore you have to have far more called and then there is a greater number that are excused before the first day of the trial.

310 The Chairman: Thank you very much. We will come, later on, to peremptory challenges which might influence our thinking a little bit.

Q20. Mr Malarkey: Can I just ask Mr Cregeen …? 315 You state two of the courts are designed for seven. Would they go up to nine or are they tight sevens?

Mr Cregeen: Court 3 has 12 seats in it. Court 2 was initially designed for seven, but had 12 seats put in it. The issue is around the jury rooms; we have got one jury room that will take 12. 320 The other jury room: really seven is a comfortable number in that.

Q21. Mr Malarkey: Do you often get two trials running at the same time?

Mr Cregeen: Sometimes we do, yes. From time to time we have had two trials running. 325 Q22. Mr Karran: I think the point is – you would agree – that it is not the logistics or a cost, it is about whether the jury system is effective, efficient and actually gives justice. That is the real issue. The issue of whether the logistics of the size of jury rooms is not the real issue that we should be worried about as parliamentarians, but the issue of whether we can find a better 330 system and not wreck what we have got. Yes?

Mr Cregeen: Yes. Whatever happens, we would then have to look at what we needed to do to comply with whatever the legislation then was.

335 Q23. The Chairman: Okay. There are two areas that fly out straight from the size of the jury issue and that is the potential impact on social media and majority verdicts.

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If we could address majority verdicts first: would majority verdicts along the lines of majority verdicts in England and Wales be useful, Deemster? 340 Deemster Montgomerie: I think there are arguments both ways. Clearly one can argue from the current state, that you know if you are convicted or if you are acquitted the jury has been unanimous in that decision, because unanimity is required on a verdict of guilty; unanimity is required on a verdict of not guilty. 345 On the other hand – and this is, perhaps, encroaching into the risks of social media – it could be argued that majority verdicts … I do not say completely eliminate but would distinctly reduce the possibility of a single member of the jury being targeted.

Q24. The Chairman: Okay. Let’s bring majority verdicts and social media in together, because 350 it is very difficult to talk about each one separately. Would you accept that there is a difference between the potential impact of social media in a very small place like the Isle of Man, where there are an awful lot of people who know an awful lot of people, to impact one member of a jury where there has to be unanimity in verdict, compared to the UK where the case might very well take place – I do not know; I have no 355 experience – 120 miles away from where the people live, for example, and the jury is utterly unknown to them? Do you accept there is some concern that, because we are such a small place with small juries and it is easy to identify people, that there is a higher degree of risk to targeting one member of the jury in order to ensure that unanimity does not occur and therefore a verdict is 360 never arrived at; one that the court might consider is the appropriate one – put it that way?

Deemster Montgomerie: I agree that there is a higher risk wherever you require a unanimous verdict, because as a matter of course you only need to target one particular person. Whether it is greater in the Isle of Man than elsewhere, again I think you can argue that two ways in that – 365 without saying anything unkind about neighbouring jurisdictions – perhaps in serious cases there may be more, dare I say it, people who are more seriously involved in crime who will make attempts to influence a jury no matter how far the case is held away from a particular area. Equally, of course, in the Isle of Man there is a pre-selection process for the jury in relation to ensuring, so far as possible, that none of the members of the jury have any connection at all 370 with any of the witnesses in the case, any of the names which may even be mentioned in the case – not witnesses, just names that may crop up in the case – and have no connection with the defendant. And equally, of course, in my opening remarks I make it very clear to the jurors that they should immediately report to the Coroner any behaviour amongst themselves which causes concern, i.e. from another member of the jury who perhaps is acting, let us say, if I can put it this 375 way, suspiciously.

Q25. The Chairman: I suppose one example might be where we could link a small jurisdiction with lower levels of serious crime with ‘across’ where, for example, there might be a drug gang that worked into the Isle of Man who became familiar with the process here and once they 380 realised that, effectively, nobbling – if that is the right phraseology – one member of the jury would be sufficient to avoid a conviction, that would then give them confidence in the future to do it, as it were. It only has to happen once, doesn’t it, before it becomes potentially a problem? Do you think that is an overstatement?

385 Deemster Montgomerie: I consider it is possible. I do accept it is possible, albeit it is something that I say in the court many times and that is, regrettably, I never get ‘Mr Big’ in the drugs world before me. If I did, then they would get the sentences that they richly deserve. Regrettably, the persons who invariably come up before me in the Court of General Gaol

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Delivery in relation to the trafficking of whether it be Class A or Class B drugs are very much 390 expendables at the bottom end.

Q26. Mr Karran: Can I just ask …? Of course, the situation is you can only give them justice if the jury finds them guilty. What I would just like to ask: with the unanimous verdicts, what concerns me – and one of the arguments that has been in politics for the last nearly 40 years – is 395 that, if you had people of certain persuasions showing the distress sign, then there was no way a jury could be unanimous. Is there an argument – maybe lesser today; the concerns of the general public as far as that is concerned in the past – the reason for why we should go to a majority verdict, as far as the future is concerned?

400 Deemster Montgomerie: I am not entirely clear what you mean by that. Could you just explain it a bit more? Thank you; I do not want to answer the wrong question.

Q27. Mr Karran: I mean, you had a situation where certain secret societies had very big 405 power when I first went into politics – just like the mart did, as far as that issue is concerned. If we keep to unanimous verdicts, how do we manage if there is a situation where there is a colleague that they do not know, but is part of any organisation that could actually stop you from putting your sentence forward, because you simply would not get a unanimous verdict?

410 Deemster Montgomerie: I suppose it is the same argument as the social media. You only need one person who can sabotage the whole thing. Of course, if one person does sabotage it, that does not mean that is the end of the matter. In the normal course of events, it would come back for a retrial. Just looking at the statistics – I have only got them back to 2009 – but there have in effect 415 only been three cases out of dozens of trials where the jury has not reached a verdict.

Q28. Mr Karran: The point is, if they do not get a unanimous verdict, then there would not be a retrial on the basis … You would have to come back to appeal it on a point of law or something like that, as far as the court cases that had happened. You could not argue that the fact that … 420 You would have to have a point of law to appeal, as far as the prosecution is concerned. Would that not be the case?

Deemster Montgomerie: I may be not understanding you. If a jury is not unanimous, then the court orders a retrial and the matter would be tried for a second time. There is the outside 425 possibility that a matter could be heard for a third time. That would only occur in very, very limited circumstances. There is very clear case law as to how serious a case must be in order for it to be heard for a third time. But if a jury is not unanimous, it would proceed to a retrial unless the prosecution said, ‘We do not want to retrial’. But presuming the prosecution say they want a retrial – and one would imagine they would – then it would proceed to a – 430 Q29. Mr Karran: So there are safeguards, as far as the situation?

Deemster Montgomerie: Well, it would proceed to a retrial, but I suppose there is nothing to stop one person theoretically being influenced on the second matter and, if the second matter 435 ends up as no verdict, then that is likely to be the end of the matter. That would be it, full stop.

Q30. Mr Malarkey: On a similar line, do you have any powers whatsoever to go back to the jury and find out what or who …? Maybe you thought it should have been unanimous; you cannot understand why the jury has not come back unanimous and yet they have not come back

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440 with unanimous. There are no powers for you to go back and find out why, so that that jury member can be looked at as to –

Deemster Montgomerie: Can I say, I am never of the view that a jury should be unanimous. I have to say that I hope it is one of my great strengths that I have no interest whatsoever in the 445 verdict of the jury. I do not consider that I would not be doing my job if I was in any way attempting to influence the jury to reach a particular verdict. Indeed it is one of my comments that I say to a jury, and I say this again to a jury every single time when I start my summing-up: I point to the wall opposite them and I say, ‘I wish there was a neon sign up there where I could just press a button and where it says, “The decision/the 450 judgment is yours; nobody else’s”.’. And I equally indicate to them that it is not the purpose of a summing-up to influence them in any way towards a decision. I would like to think that is one of the strengths of my summing-up: that they are not in any way ever designed to influence the jury in their decision unanimity whatsoever. Moving onto the second part of your question: no, I do not have any powers and I do not 455 consider that I should have any powers. The jury system works on the basis of secrecy, other than their verdicts. They have all the evidence placed before them – only relevant evidence, only admissible evidence; they hear the detailed evidence-in-chief, cross-examination of witnesses; they hear the speeches of Counsel, where Counsel make their submissions; they hear my outline of the law, which is in effect done in consultation with Counsel – I will have spoken to Counsel 460 beforehand; got their input as to my directions. So everything is done; so it is all in public. It is all done in public. The jury then retire to consider their verdict. I consider it would be wholly wrong for me to know. That said: a jury of course, if they do not reach a decision, can and sometimes will indicate their split, but that is one of those rare occasions where the judge does not indicate it to Counsel 465 or publicly. Normally a note from a jury is a matter that the Deemster would share with Counsel; discuss a response to it; if the jury is retired, call them back into court and give them further directions. But a note from the jury that indicates a split, that is one of those rare occasions that it would be improper for a Deemster to indicate either publicly or privately to Counsel what that split was, if the Deemster has been informed. The jury may just say, ‘We are unable to be 470 unanimous and we will never be.’

Q31. The Chairman: If a case was slightly more complicated and you had a whole list of key points from the defence; a whole set of points from the prosecution and then your points of law in the centre at the end were reasonably complicated, do you not feel it would be helpful to 475 summarise those in a set of bullet points that were then handed to the jury so that they had – I would not say a tick box – a reference point to make sure that they did not miss something that might be particularly relevant or important?

Deemster Montgomerie: That happens at present. 480 The Chairman: It does? Okay.

Deemster Montgomerie: That happens at present.

485 The Chairman: Normally? Every time or just –

Deemster Montgomerie: I do not think there is any need for it to be made into any kind of legislation because it happens at present. It depends on the complexity of cases. If I can just briefly, perhaps, enlarge on that. What a 490 Deemster does, prior to Counsel making their closing speeches to the jury and the Deemster doing his summing up, the Deemster discusses his legal directions with Counsel; gets their input.

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Sometimes I will accept what Counsel say; sometimes I will say, ‘Well, dependent on the verdict, you can appeal me’ in effect. But clearly, it will be discussed: the directions that I am going to give. Often I will raise directions, perhaps, that Counsel have never thought of, because it is my 495 job to be … whereas Counsel perhaps tend to concentrate on their submissions, I, as you will appreciate, concentrate very much on all the directions that I need to give to the jury. I will discuss with Counsel whether it is a case that Counsel consider that the jury would benefit from written directions. If either Counsel indicates that they think the jury would, then I do so. Even if both Counsel say no, if I consider that the jury would benefit from written 500 directions then I will give them written directions nevertheless. But I would have to say, in the majority of cases, it is my job as a Deemster to make the law as plain as possible to a jury. If anybody has been in any of the recent trials I have had, the questions for the jury, the law for the jury, has not needed to be written down because, in effect, it has just been one question: ‘Are you sure … ?’ etc. ‘Are you sure of this one question? If you are sure …’ I set out all the 505 elements of the offence or the offences, but in the vast majority of cases, it boils down to one single question which I outline to the jury at the end and say, ‘Members of the jury, the real question you have to ask yourself on this count is: are we sure that … whatever?’ ‘If you are sure, then it is your duty to return a verdict of guilty; if you are not sure, it is your duty to return a verdict of not guilty.’ 510 Q32. The Chairman: Thank you. That is very clear. Remaining just for a little bit longer on majority verdicts – I should know this, but I do not. When did majority verdicts come in in the UK, Deemster Montgomerie? And why?

515 Deemster Montgomerie: I am afraid I do not know either and I am not going to guess.

The Chairman: Would you be kind enough to write to us on that?

Deemster Montgomerie: Certainly. 520 The Chairman: That is very kind of you.

Deemster Montgomerie: I will do the research and I will conduct that research as soon as I can and I will write back to you. 525 The Chairman: When did it come in and why? That was the question. So did you have a final point on majority verdicts? No.

Q33. Mr Malarkey: Can I just …? 530 Going back to the numbers’ game, 7, 9, 10, 11, 12 and other jurisdictions: majority verdicts with 12, you could have two – am I right – that say, ‘not guilty’ and the other 10 say, ‘guilty’ and that is accepted? Is it up to two or is it up to three?

Deemster Montgomerie: Up to two. 535 Mr Malarkey: Up to two.

Deemster Montgomerie: Yes.

540 Q34. Mr Malarkey: Are there any other jurisdictions that you know … ? You have mentioned places like Canada where they use only nine and they use majority verdicts. Would nine with one …?

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Deemster Montgomerie: Well I can briefly, perhaps, just run through the various jurisdictions 545 that I have got notes on. England and Wales, obviously: jury of 12; 10:2, but if a jury is reduced, it would be 10:1 or 9:1. In Northern Ireland it is 12; 10:2. The Republic of Ireland it is 12 and the majority is 10. Scotland, as I have said: 15; a simple majority, albeit I should say, I am aware that there are proposals in Scotland to put forward – whether they will obviously go through or not – to change it to a two thirds. In other words, it would become a 10:5 rather than an 8:7. I think 550 the purpose … Well, one of the advantages of the Scottish system – albeit, I certainly do not put it forward – is that, provided you did not discharge anybody from the jury, you are never going to get a no verdict, because there is always going to be an odd number. So you are going to get a verdict one way or the other. Jersey is 12, with a 10:2 or 11:1 or 10:1, which is similar to England and Wales. Jamaica is 12 with a majority of nine, except in capital cases. 555 Q35. Mr Malarkey: So we are the only jurisdiction, then, that does not do majority verdicts?

Deemster Montgomerie: Just looking through … There are some states in Canada, I think, that do not do majority verdicts, but they look fairly remote states from the names I have here. 560 Q36. The Clerk: But is it a fair conclusion to draw that that trend is to go for majority?

Deemster Montgomerie: The trend tends to be 10:2.

565 Q37. The Clerk: Yes. The trend is for the 10:2 majority to be acceptable?

Deemster Montgomerie: It is. Certainly out of either Commonwealth or former Commonwealth jurisdictions … In other words, based on – if I can put it this way – English law; that they basically have English law at their heart, yes, 12 and 10:2. 570 Q38. The Chairman: So it is surprising really that the Scottish jurisdiction should have a system which seems so different. Do you want to make any comments on that at all?

Deemster Montgomerie: I am probably speaking a little bit of ignorance, but having gone to a 575 Scottish school I do know that Scottish law is based on Roman law, not English law – and for an English lawyer, a Manx lawyer, it is totally unintelligible, I hasten to add. So that possibly is the reason. And of course, in Scotland there does have to be corroboration which is an additional factor that English jurisdictions do not have. In Scotland, there always must be corroboration, as I 580 understand it, of any particular act, whereas, of course in the Isle of Man, England, etc. there is no requirement for corroboration.

The Chairman: I should not have taken you there; I was just curious. It seemed so strange.

585 Deemster Montgomerie: Well, I apologise if any of that was inaccurate, but that is my brief knowledge of the …

Q39. The Chairman: Thank you very much, Deemster. Let us go back to the issue if we may – unless there are any other points on majority – on the 590 impact of social media. Are you okay for a little bit longer?

Deemster Montgomerie: This is an important matter. I am privileged to be here; I am prepared to stay here as long as you want me. 595

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Q40. The Chairman: That is kind of you. Thank you, Deemster. The impact of social media: it seemed to reach some sort of crescendo of concern and activity in 2010/2011/2012 in the UK and as a consequence there was a determination to introduce a series of laws to reinforce a determination on the part of ultimately the courts to 600 make sure that there was not inappropriate interference through social media – and social media grows by the day, doesn’t it? How do you feel about the need to replicate that or similar laws in the Isle of Man, to reinforce what the courts do to make sure that social media does not interfere with our processes? 605 Deemster Montgomerie: Well, at the present time, I think the Isle of Man probably has two offences that would cover anybody interfering with a jury. If it was an individual, it would be section 347 of the Criminal Code 1872, which would be doing an act against public justice, which in common parlance is attempting to pervert the course of justice. And section 330 of the same 610 Act where there is more than one: conspiracy to do that. Conspiracy carries ten years. Doing an act against public justice on your own only carries two years. If it was felt that there was a further deterrent required – and that really would be a matter for you – one that was perhaps specifically publicised in an endeavour to make it clear to members of the public that they really should not get involved in attempting to influence juries, 615 then you could bring in specific jury misconduct provisions relating both to jurors themselves and to persons who attempt to influence them.

Q41. The Chairman: Has the level, degree or type of warning, advice given by your good-self and your colleagues in the judiciary changed or developed in recent years in light of what is 620 going on?

Deemster Montgomerie: It has changed beyond all recognition. The warnings now that you give to members of the jury in your opening remarks have really undergone a transformation. Of course, the words that I use – I specifically design them so they are in my tongue as opposed to 625 perhaps another person’s tongue – are the words that are set out in the Judicial Bench Guidance to judges in England and Wales. So in effect juries get exactly the same warnings and cautions about their responsibilities in the Isle of Man as they do sitting on juries in England and Wales.

The Chairman: Thank you. 630 Q42. Mr Malarkey: I want to stray onto jury training. On the DVD you sent us, two things that I picked up on that were not there was any mention of social media on the DVD and of warnings to jurors, and any mention about whenever it is all gone and you are told to go home that you are not allowed to discuss who voted what, for where, for when. I felt that they were both 635 missing off the DVD. Just following on from what you said then …

Deemster Montgomerie: Well, perhaps, that reflects that the –

Mr Malarkey: It is quite an old DVD. 640 Deemster Montgomerie: My starring role as one of the starring participants in it – (Laughter) it put me off filming for life, I can tell you. That was actually done in the late 1990s at a time when those warnings really were not given in jury trials. As I say, the warnings that have been given have transformed over the last few 645 years. The only thing I would say is that the jury that is empanelled are given those warnings at the start of the trial, etc. So they do get those warnings.

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The purpose of the video is more just to give them … Rather than give them specific directions on whatever, because they get those in the case. They get them from me at the start; they get them from me throughout. I always say to the juries, ‘You must think I am like an old 650 record.’ Every time they go off for lunch; every time they go away at the end of the night, I rattle through all the things that they must not do.

Q43. The Chairman: Every time?

655 Deemster Montgomerie: Every time. But the purpose, really, of the video is to give them an idea of what it is going to be like sitting in court: where the judge is going to be; where Counsel are going to be. It is more to give them a flavour, I think, than to specifically, let’s say, give them all the directions that they need during a trial, because those they will get during the case. 660 Q44. Mr Malarkey: I felt it related to us, when we are talking about social media … that it was a very dated DVD. Maybe it is time for your second acting role and maybe move up and a fresh one be made.

665 The Chairman: We wait with bated breath.

Deemster Montgomerie: Can I make on that: ‘no comment’. (Laughter)

Q45. The Chairman: Do you think – I am not a mere youth or anything even remotely like it 670 and you have excellent maturity – we are keeping up with what is going on amongst the younger people, and the fact that that a jury can be taken up by a number of young people? Have we the engagement to keep up with the fantastic degree of change that is happening in social media? Are you comfortable?

675 Deemster Montgomerie: Well, firstly I would say that we cannot be complacent. I think that we have to accept that it is there; that it is a risk; we must be fully conscious of it throughout. Equally, as I say, we operate on giving juries warnings/directions. The whole jury system operates on persons accepting those directions/warnings. If people are going to come to the conclusion that we live in a world that we cannot trust people to follow directions, then that is 680 an argument for doing away with the jury system, because it would not be working if they are not following directions. However, I very much think, from my observations and my involvements with juries – and I have been doing it for decades now and as a judge for over a decade – I consider the juries are still in very safe hands. As I say, I always end – and I mean it – by indicating to juries that I consider it has been my privilege to work with them. 685 Q46. The Chairman: Thank you, Deemster. I am sorry we have spent so much time on those subjects but they are, to the Committee, very important. Could we now turn to peremptory challenges – and we would like to hear from both of you 690 on that. I suppose our view would be one of we do not really understand how the peremptory challenge system works and why it is in balance between the defence and the prosecution. Perhaps you could give us your view on the whole system as it stands to begin with.

Deemster Montgomerie: If it assists, I do not understand (Laughter) the reason for 695 peremptory challenges at all. I can honestly say I have no idea of the justification behind it. The present system is that the prosecution has an unlimited number of challenges, without reason, and the defence have three before they have to give a reason.

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It is quite often used. I can see no justification for it. I can see no justification, firstly, for a distinction between prosecution and defence, but more importantly I can see no justification for 700 either side having a peremptory challenge. I consider that if either side wishes to challenge a jury being empanelled, then they should have a reason that they can put forward to it. I do indicate to the panel of jurors when they come into my court that there are many reasons for a challenge and that they should not reflect that a challenge reflects adversely upon them. So it seems to me there is nothing wrong with either the prosecution or the defence being 705 required to indicate a reason for a challenge and particularly if a jury is going to be … If you do recommend, at the end of the day, for example that the jury size should be increased, I think it is absolutely vital that members of the public who turn up for jury service – their civic duty – are not challenged and in effect discarded for no good reason. I consider that is disrespectful to those members of the public who have turned up. 710 Q47. The Chairman: Do you think that, if we moved away from peremptory challenges altogether and adopted a concept of reasoned challenges from both sides, that might – I know it is a subjective view – adjust the number of potential jury members that we would need to call in the first instance? Mr Cregeen was talking about quite a high number for a seven. Was it 715 30 something?

Mr Malarkey: It was 35.

Q48. The Chairman: Would you think that that would still be necessary if we removed 720 peremptory challenging?

Deemster Montgomerie: It would reduce the numbers, in my view.

Q49. The Chairman: It would? 725 Deemster Montgomerie: Yes.

The Chairman: Thank you.

730 Q50. Mr Malarkey: Mr Cregeen, could we ask, in your opinion, because with that call … ?

Mr Cregeen: Yes, it would. You would not need to call so many.

The Chairman: Do you think we need to cap the number of reasoned challenges or would 735 that be an open matter?

Deemster Montgomerie: That has to be an open matter. As one of your members so rightly said, we are dealing with justice here. We are dealing with people getting a fair trial. There may be some trials where nobody has in effect a valid reason to challenge any particular potential 740 jury member. On the other hand, you may get a case where there are 10 challenges and if they are all justifiable, then in my view they should be entitled to be made because it is important – well it is vital – that those members of the public who are empanelled onto a jury are doing so in effect without any – if I can put it this way – untoward involvement in the case. In other words, they have no connection and they are dealing with the matter entirely on its merits. 745 Q51. Mr Karran: Can I just ask, Chairman? What sort of criteria would you see that the issue where people should be dispensed of, as far as a jury is concerned? One of the things, in certain cases, they reckon it is far more preferable to get a conviction if you put more women on a jury

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than men on a jury, and stuff like that. How do we make the criteria that it has to be …? What 750 would be the criteria to be able to get rid of a person from serving on the jury?

Deemster Montgomerie: The bottom line is that if either side … If it were a case that nobody has peremptory challenge … If you have peremptory challenges, then you can alter the make-up of a jury. If, for example, you maybe wanted, as you are saying, more women on than men or 755 more men on than women, you could use up peremptory challenges just in an attempt to influence that. I am not sure if there is any real logic behind whether any does favour any particular kind of case, but maybe some people think that. But the bottom line is that if people are required to give a reason, then I would consider that reason; I would discuss it with both Counsel and come to a decision as to whether that person 760 should in effect go onto the jury or not. It may possibly involve a questioning of that potential juror themselves.

The Chairman: Thank you very much indeed.

765 Q52. Mr Malarkey: On that issue then, if there was a challenge – the prosecution, say, challenged – would they have to give the reason? At the moment they do not have to, do they?

Deemster Montgomerie: No.

770 Q53. Mr Malarkey: So, if we were to change this, would you be happy that the prosecution then would give the reason why they wanted to preclude somebody, and would that be in open court in front of the juror? Does it not make it a little bit messy if we go down that road, that it becomes public knowledge why somebody should not be on a jury?

775 Deemster Montgomerie: If I can assist, it is never made public. If Counsel have a reason as to why – and it would only be the defence that would normally do this, if they have used up their three challenges – the reason has to be written down.

Q54. Mr Malarkey: It has to be written down? 780 Deemster Montgomerie: It would then be handed by, for example, Defence Counsel to Prosecution Counsel. It would then be handed up to me and normally it would be a question that it would be fairly obvious and I would just say, ‘Prosecution Counsel, any views?’ And Prosecution Counsel would, in the normal course of events, say, ‘Yes, I agree. That person 785 should not be on the jury.’ And I would say, ‘Yes. Not on the jury.’ And the person would be told to return. It equally works when jurors are asked by me, because when they are balloted and the first seven go in – and it is comparatively rare that the first seven that go in will be the seven that are on the jury – because I invite them; I give them all the rigmarole as to reasons basically why they 790 should not be on, but at the same time emphasising their civic duty. Those that do consider that they have a good and substantial reason as to why they should not be on, they write it down. So it is not made public. It is handed to me and I look at it; it is given to Counsel and I will say to Counsel, ‘What are your views?’ They will say either, ‘Well, we think this juror is fine to sit.’ Let’s say for example the witness or the name referred to is not in dispute; their evidence is not 795 in dispute or whatever. Or they will say, ‘We think this juror should not be on the panel.’ And invariably I will go along with that. So that is how the … Nobody is embarrassed in public. If I can put it this way, we are not that cruel.

800 Q55. The Chairman: Well, thank you, Deemster.

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That point you made a couple of times in your most recent answers about civic duty takes us onto the particularly interesting issue of the electoral roll, for us, and the ease with which people can remove themselves from jury service by removing themselves from the electoral roll. Mr Cregeen, could you possibly just run us very quickly through the process and how it works 805 at the present time? Just touch base on the main things.

Mr Cregeen: Basically, from the electoral roll, the letters go out to occupiers of houses. They complete the form. They will indicate whether someone is in one of the categories which is exempt from jury service. That list: all the names are then provided back into what is now the 810 Cabinet Office. We get what is the jury list, but also people who are seeking exemption, because there is provision to be exempt for certain reasons, for example on health. That person can then seek to be exempt from the jury list for up to three years. That would then be considered by the Clerk of the Rolls. The individual is invited to provide additional reasons why they should be exempt and that will be considered. 815 In relation to the full list that we then have, that is then provided to the Coroners before the beginning of September and they summon the jurors from that. At the moment, within the Jury Act, there is a Schedule of also exempt categories. That is quite extensive compared to England and Wales, although it is probably very similar to what is in the Republic of Ireland who undertook a review a few years ago and decided that they should retain a lot of their 820 exemptions. That basically is how the list is developed. When people are summoned, they can seek excusal under the legislation. So they could write in to the Chief Registrar and say, ‘I have been summoned for jury service but I am actually going to be off the Island during this period.’ Normally, they would then be excused from that jury appearance, but would then be potentially called at some time in the future. 825 Q56. The Chairman: Is it like the Lottery? Do you have some sort of pinball thing? How do you identify who is going to be summoned?

Mr Cregeen: The Coroners do that. The Coroners have the list of jurors and they will select a 830 number of jurors in order that the names are on the list.

Q57. The Chairman: Alphabetically, sorry?

Mr Cregeen: Yes, so they will go through. It starts off on 1st September. When they get the 835 new list, they start off from the next name from the old list. So if you have got up to the letter K, the new list you would then start from there and work through, going through the list. So it is not a lottery. It is not pulling names out of the hat. There is an order in which they do it and they record on their jury lists when someone has been called for jury service. They also record in their jury lists those who are actually exempt from jury service. 840 Q58. The Chairman: So, how many Coroners are there? Five, is it?

Mr Cregeen: Four.

845 Q59. The Chairman: Four. So which Coroner works the list at a given moment? I am confused.

Mr Cregeen: They have got their lists for their own areas. So there may be a number from each area of the Island. So they have got their lists for their Sheadings. 850

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Q60. The Chairman: Right, so you have got … Forgive me, I do not quite get this. You have a got a trial coming up; you establish that you want to call forward 30-plus people. Which Sheadings do they come from?

855 Mr Cregeen: I think they do it – because it is not part of what I do – but they have a way that a number will be called from each of those areas, so it is not just all from one area.

Q61. The Chairman: But how do they do that?

860 Mr Cregeen: There is communication between the Coroners.

Q62. The Chairman: Do you think you could write to us and tell us more about that, because this is fascinating. We know nothing about this at all. Is it likely that there were a series of Cregeens, because you are all on a list; that we could 865 suddenly be outnumbered in that list with a whole pile of Cregeens?

Mr Cregeen: If there were three from the same household, they would only select one.

Q63. The Chairman: But it is likely that you would get – sorry to talk over you there. I do 870 apologise. So, being in the Isle of Man where we have got quite a lot of people with one surname, is it possible you get quite a lot of people with the same surname coming forward?

Mr Cregeen: Well, because you have got it across the four Coroners, they will be at different 875 areas, different numbers. So you do not end up with all the same surname.

The Chairman: Thank you.

Q64. Mr Malarkey: So before the list gets to the Coroners, how happy are you at the Cabinet 880 Office that the exemption list is correct? I point to you and I have spoken within the rules. There are lots of categories: A, B, C, D, E, which you can tick the box when the form goes in. Now some of these exemptions are for lawyers, policemen, because they are involved within and they cannot be involved in the courts. Some are for doctors and other different categories. What is there to stop me ticking a box, as Dr Malarkey, and putting myself in an exemption? 885 Who does the checking? When that goes back from the household to the electoral roll and there is a box comes back in and I have ticked, ‘Dr Malarkey’ or I am exempt because I am a nurse or I am exempt because I am a policeman, who checks that that exemption is correct?

Mr Cregeen: I would need to check on that. 890 Mr Malarkey: Well my information is, nobody.

Mr Cregeen: But I would guess also that you would be committing an offence if you –

895 Mr Malarkey: If you were caught, yes.

Mr Cregeen: – make a false declaration.

Q65. The Chairman: Would you be kind enough to confirm, Mr Cregeen, that for us? 900 What we will draw into this, if you are agreeable, is electoral roll issues and exemption from service as one block discussion.

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This initially to Deemster Montgomerie: the jury system in England and Wales has been greatly liberalised. Is there a case for extending the scope of those who are required to serve? I just draw to your attention that, on a recent piece of information that I have received, 905 Economic Affairs estimate that there are 52,000 between 18 and 65 and yet there is only 31,000 on the electoral roll. So we have lost, somewhere in the ionosphere, 20,000 potential people who are not doing, to use your phraseology, their civic duty/

Deemster Montgomerie: I certainly agree. I think there are a number of persons or types of 910 persons within the current exemptions that could be changed. Equally, if it was felt appropriate then the age could be increased as well. Sixty five seems, perhaps, rather a – given the changing times, if I can describe them as that – low age now, in my personal opinion, for somebody to be precluded from sitting on a jury. So far as the categories that currently exist, I think we perhaps, in a compact jurisdiction such 915 as the Isle of Man, have to be a little bit careful of some of the categories. For example – and I am not just saying this because I am one – lawyers.

The Chairman: God forbid!

920 Deemster Montgomerie: I am not just saying this because I work in the same building: court administration and people like the Police. In perhaps a compact jurisdiction as the Isle of Man, I think considerable thought would have to be given as to whether or not you actually allow those persons to be on jury service. Mr Cregeen referred to the Irish Law Reform Commission’s report which was published in April 2013. I have got it here. It is very interesting reading, if you would 925 like a copy of it.

The Chairman: Please.

Deemster Montgomerie: Certainly, when I respond to you on another matter, I will supply 930 you with a copy of it. It is interesting, in Ireland whilst they did widen the categories, they did actually retain as exempt, lawyers, court administration and police.

The Chairman: Mr Montgomerie, you are working too hard on that. (Laughter)

935 Deemster Montgomerie: They gave their reasons therefore.

Q66. The Chairman: Given that the exemption list exists, could we ask you to consider writing to us with an outline of the areas that you feel would be appropriate to bring in? Would you be uncomfortable with that? 940 Deemster Montgomerie: Can I give that some thought as to whether it is actually specifically appropriate for me to do that? If it is appropriate for me to do that, I will do it.

The Chairman: Or the other way round: the areas that you would be uncomfortable with. 945 Deemster Montgomerie: I think it is the other way round I would find, if I can put it, I would be more comfortable with that.

The Chairman: That is fine. 950 Q67. The Clerk: Could I just test one idea out on you, which you may or may not like? That is to have no exemptions at all but to allow everybody to put forward a reasoned objection to their service at any one particular time. So clearly, if you are a sitting Deemster, then you might need

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to sit on an appeal or whatever, you would be excluded for cause. It is a bit like going from 955 peremptory reasons to cause. So if somebody was a lawyer but did not do any criminal work, why would you exclude them as opposed to someone who was in the courts working in that area?

Deemster Montgomerie: I think your problem with that would be the numbers of people 960 that you would need then to summon potentially, because that would exponentially, perhaps, increase the numbers of persons that would have to be excused prior to trial.

Q68. The Clerk: Would it? Can you walk me through that one? I am not quite sure how that follows. 965 Deemster Montgomerie: Well, if you are including absolutely everybody, then the strong likelihood is that you will get a number of persons within those, let us say 35 initially, summoned for jury service who will in effect be putting forward that they should not be sitting on a jury. If you add to that those who … Because out of, let us say if you have 35, you will have something 970 like about anything up to 50% of those 35 who will apply to the Chief Registrar to be excused from jury service.

Q69. The Clerk: But you would not necessarily allow them to be excused, unless they have got a good reason. 975 Deemster Montgomerie: Well, it is like anything in life, you have to judge each case on its merits. You cannot just say, ‘Oh, well, out of this a certain percentage will not.’ It is rather like the point we mentioned of a valid reason for objecting to somebody sitting on a jury. Every case depends on its own particular merits. The point I am making is it may mean that you would have 980 to, first of all, summon more potential jurors than would otherwise be the case. Equally, it would be perhaps increasing the bureaucracy and administration of those dealing with the applications for recusal from jury. And, of course, if somebody applies to be excused from a jury and it is turned down by the Chief Registrar, I then have to deal with it.

985 The Chairman: Okay.

Deemster Montgomerie: It is not a system – the one that you propose – that I am aware any other country operates. That is not to say that the Isle of Man should not operate it, of course, but I am just saying, as far as I am aware, no other country operates such a system as that. 990 Q70. The Chairman: Thank you, Deemster. I remain fascinated, Mr Cregeen, by this process of going through the Coroners. Do you want to offer us any thoughts of your own about how you might want to see the system of bringing together a jury? 995 I should explain that we are concerned about – in our broader thinking – trying to concentrate down ever more simply into identifying our citizens and what roles they might play. Would you be willing at this particular time to offer us any thoughts of your own?

Mr Cregeen: I think one area you could look at is, if we change the system so you could 1000 identify at a particular time of the year who you may well be calling for jury service over the next 12 months, to get them to identify when they are not available so then you can get your numbers from … You would be then calling a smaller number of jurors at a particular time because you would not be summoning people who were going to be away for the two weeks of the trial. Whether we could look to having just a single all-Island jury list and summon from that 1005 and do it that way may be worth investigating.

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I think to a certain extent, the processes we have in place at the moment have been around for a long time and they have served us well. There is a lot of experience out there, but that it not to say that we could not look to, say, indicate to 300 to 400 that you potentially could be summoned for jury service over this particular period – ‘what are the dates that you are not 1010 available?’ And then you may be able then to select a group from that.

Q71. Mr Malarkey: Can I just carry on from that? So you would prefer an all-Island database to work off?

1015 Mr Cregeen: I am just saying that it is a suggestion. I have not looked at the practicalities of it.

Q72. Mr Malarkey: Would it not make your life easier then, with the all-Island database …? At the moment we have just said there is 40%, or whatever the figure was, that is not even on the database that should be on the database. We are discussing that there are groups here after 1020 C that should not be exempt. So if we withdrew all them; we made everyone on the database; if we used NI numbers so, basically, if you were aged between 18 and, say, 75 we could virtually triple what you have at your disposal to call upon juries.

Mr Cregeen: I would be cautious about removing all exemptions. There are certain categories 1025 which would be exempt and you would not want to increase the administration and the bureaucracy in having them on the list just to excuse them when they were in the category that they would not be sitting on a jury anyway. So I think, if there were still certain exemptions, then yes you could look at ways of doing it. How you develop a system that would bring all of that together and bring the names and addresses together, I have not looked at that. So, it would be 1030 an interesting exercise.

Q73. Mr Malarkey: For the record, I was not saying get rid of all the categories. We have also had other submissions and in agreement with Deemster Montgomerie, A, B and C do seem to be quite important ones, but the ones after that seem to be less important, which is what we will 1035 have to consider.

The Chairman: Peter, do you …?

Q74. Mr Karran: I would just like to ask, is there anything you feel – with your professional 1040 advice – we can do from … At one time only the landed gentry were on. In fact the House of Keys was originally the jury for the Isle of Man, when the Lords of Mann were about. Is there anything we can do to try and change it so that it is not seen as a negative, but a positive, as far as jury service is concerned? Allowing for the fact now, virtually anybody who is in the top of their profession are now exempt from being on the jury. Is there something that 1045 you feel … A simple thing that we could do in order to try and get people to see it in a more positive light: taking part in our judicial system by being on the jury?

Deemster Montgomerie: That is a very good question and I wish I had a good answer for it. Perhaps if people watch TV shows and are excited by those TV shows involving juries, that 1050 might do it. But as to what you could actually do to encourage people, I do not know. In effect what you are saying is you would be trying to get those persons who in reality could put forward a reason which would be justifiable for them not serving on a jury actually saying, ‘I am not going to put forward that reason. I am going to go and sit on a jury.’ I really do struggle as to what we could do to encourage them, other than for me to say now that I can thoroughly 1055 recommend the jury service to anybody.

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Q75. Mr Karran: Can I just follow that up? Obviously the situation is that maybe one of the things that we need to see, especially as Government has more journalists working for it than anyone, maybe some sort of media campaign could be arranged so that people realise how 1060 important they are in a democracy to be able to be a member of a jury. I do not know. I am just wondering if there is something that is done; any initiatives that are done in other jurisdictions to try and sort out … Because this will not be just a problem in the Isle of Man. Is it about cost? Is it about the disruption as far as work is concerned or other things? What can we do to try and get more people? 1065 The Chairman: I think that might be addressed to Mr Cregeen, I think.

Mr Cregeen: I think generally the numbers that we get for excusal, as Deemster Montgomerie has indicated, is up to 50%. 1070 The Chairman: Really?

Mr Cregeen: Not all of those are successful, but there are certain reasons: pre-booked holidays; short-term illness, which does not require them to be exempt from jury service but 1075 they are in the position that they cannot do it at a particular time. Generally, we do get sufficient numbers of jurors for the jury to be picked from. It is not often that the Coroner needs to go out onto the street and pull additional people in.

Q76. The Chairman: I think we are aware of the exemptions. I am not sure we are fully 1080 aware, as a Committee, of the other excuses that are available, are we? Roger, are we?

The Clerk: Well, I mean, the excuses are the ones given by the Registrar that are circumstantial in the sense of, you know, there is an urgent family reason why it is not possible right now. 1085 Mr Cregeen: I can, when I write to you, I will provide a bit more information on that, if it would help the Committee.

Q77. The Clerk: You never think of asking people to volunteer? I am serious. People 1090 volunteer for all sorts of public service.

Mr Cregeen: The requirement is, under the legislation, that those who are summoned are summoned from the list in order. So that is how the legislation is framed at the moment.

1095 Q78. The Clerk: But there is no reason in principle, is there, why that would be a bad idea?

Deemster Montgomerie: Can I perhaps answer that: I think it might potentially be dangerous, operating a jury system on in effect seeking volunteers to attend, because then there may be persons with specific reasons wanting to be on juries generally or a particular jury. I 1100 think that is potentially a minefield. Equally, one would wonder the motives perhaps behind some of those people. I would have real concerns, real concerns.

Q79. The Clerk: Well, clearly you would not want people volunteering in order to be on a particular case, but if you put your name forward for consideration, you might after a year or six 1105 months or whatever be called forward and you would not be able to pick your case at all, would you? It just strikes me as an unusual anomaly that in so many areas people are allowed to volunteer to do public service, but not in this one.

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Deemster Montgomerie: Well, I think jury service is perhaps out of the norm for public 1110 service. I would just be concerned and I make … Can I say, I am not questioning the motives of anybody, but I would just have concerns that you run the risk that somebody is, in effect, desperate to be on a jury for the wrong reasons. That would be my concern.

Mr Malarkey: Like a list of professional mourners! 1115 Q80. The Chairman: Right. Incidentally, you were eloquent in your description and explanation as to why judges should not appear on juries and we recognise that. I suppose you would not be surprised if we laboured the point that we find it uncomfortable that so many people remove themselves from the electoral roll in order to get off juries but actually get out of 1120 their civic duty to vote as well. But we would be bound to say that, wouldn’t we? A few more items left. This one – I know it is a little bit late to perhaps excite you over this one, because I know you have got strong views on it – but just for the record, Deemster Montgomerie, we were looking at the support for the jury by way of advice. I know that you have expressed a view. Can you capture them in succinct and clear words? 1125 Deemster Montgomerie: You were right: (Laughter) I have very strong views on this particular matter. The current system is that everything is done openly. In other words, the judge consults with counsel as to the directions of law he gives to the jury. Counsel make their submissions on those 1130 directions. Ultimately it is up to the judge to decide what directions he gives. Clearly, anybody dissatisfied with that can appeal those after the verdict. Equally, if the jury, after I have gone down the route of giving them those directions, whether it be verbally or in writing as well, the jury can come back and ask a question. They give a note to the Coroner after they have retired; it is given to me; I discuss it with counsel and it is discussed 1135 how I should respond. Again, if either side does not like it, they can appeal me later on after the verdict, but it is all done in open court, so that it is all clear to everybody what legal advice directions have been given to the jury, that I have told them they must follow. If there was an adviser, he presumably would be advising in private. The question would be ‘Why?’ Why would he be advising when the jury, if they do have a query about my directions; 1140 what they should do, can pass a note and I would then get them back into court and deal with it openly. Equally, if that adviser were to give them advice, nobody would know what it was. Nobody would have any idea. The jury, in effect, could come to a decision based on advice that nobody knows about and nobody has had any input in. As I say, I feel very strongly on this point. I can see no justification at all. 1145 Q81. The Chairman: We thought your views might be clear there and you did not disappoint. Just a couple of moments then looking at jury training – because in some respects we have covered this as the evening has gone on. Are there any points you want to add there before we move onto the final item? 1150 Deemster Montgomerie: No, other than I consider that it may be time for an update of the video, I do not know, but to my mind juries are judges of fact. That is what they are there for. So I do not consider that anything in addition to the video beforehand and then the normal directions, etc. that they get in the trial are required. 1155 Q82. Mr Malarkey: If I could pick up on a couple of points come through. We did get some submissions from the public who had actually sat on trials and juries, which I found quite helpful reading their notes. One brought something that I had not thought about before: if there was a particularly, not so much gruesome trial but maybe emotionally damaging trial, what sort of 1160 counselling is offered to jurors at the end of a trial that might involve something really

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emotionally hurtful. It could involve a child; it could involve some gruesome things going on. Do you just dismiss the jury or do you offer any sort of backup for the jury members as they walk out the door?

1165 Deemster Montgomerie: I regret to say that we offer no backup. Obviously I thank the jurors and of course they are warned at the start of the trial and they are warned during the summing- up by me that they must put all emotion to one side; deal with the evidence and deal with it dispassionately, carefully, etc. No, I regret to say, that there is no follow up. You perhaps brought me on to a point that I do consider – it is maybe linked in with 1170 remuneration of jurors and, perhaps as you have said, counselling afterwards – that there are very much failings in relation to looking after juries from the point of view of … whilst I appreciate they are never going to be fully compensated for attending on a jury because it is a civic duty, but nevertheless, I do not consider that the remuneration that they get is perhaps sufficient. Equally, I do consider that … It may be that they can go to counsellors themselves, but 1175 all I can say is that we do not offer any counselling services or whatever. We do not have any, for example, officers that deal with looking after a jury after they have finished serving on a jury and as you rightly say some cases clearly are very upsetting by their very nature.

Q83. The Clerk: At the moment, presumably, they would be told that they would be in 1180 contempt of court if they went to talk to somebody about their experiences on the jury?

Deemster Montgomerie: Well, they cannot go into the specifics of it.

The Clerk: But then that is the therapy, isn’t it? They would need to. So perhaps there is a 1185 little bit of a lacuna there.

Q84. Mr Malarkey: Maybe something for you to think about for the future. Another one for Mr Cregeen: one that wrote in, would talk about, they came up with maybe there should be an access to the staff canteen as an option in between lunch breaks or 1190 whatever. They said that, ‘Doors closed; waiting in the rain, waiting for the courts to open again with the risk of bumping into the defendant’s families, etc.’ They found a bit of a high risk area. Maybe it is something else that is worth taking away and considering for jury members.

Mr Cregeen: The jury members, they have the jury room. We could not have jury members in 1195 the area of the staff area. We are trying to keep them away from there. I can look at what happens in their lunchbreak and the time the Coroners are back down at the jury door to allow them back in. We can look at that to see if there are ways are dealing with that.

The Chairman: Do you want to add anything to that? 1200 Mr Malarkey: No. That is just bringing those points to your attention, where they came in from private letters.

Q85. The Chairman: If we can move on. You have been very patient. Thank you so much. 1205 If we can move onto the final matter of payment for service. This evening we have been looking at the possibility, in our discussions, of perhaps, through review of peremptory challenges for one thing to reduce the number of jurors that may need to be called forward per trial. On the other hand we have been looking at the possibility of expanding the available number 1210 of people who could serve on juries, bearing in mind there is this gap, this black hole of many thousands. Given those two together, the incidence that a person might be called forward then reduces and it is leading up to thinking about looking at a situation where an employer is obliged

______26 JURY 64 SELECT COMMITTEE, TUESDAY, 9th FEBRUARY 2016

to continue to pay somebody whilst they are on jury service given a reasonable sized business, for example, and removing effectively a significant or a certain amount of the expense that you 1215 currently go to. Would you like to comment on those thoughts?

Mr Cregeen: I think it would be difficult to force any business to pay the staff who are called for jury service, because you would not know the circumstances of that business. Even if it was a 1220 large business, it may not be at a particular time very profitable. So that would be an issue. Also if an individual was only working a couple of hours a day, would it be right that they only received pay for a couple of hours? If for example they were a lunchtime ancillary who may only be working a couple of hours at lunchtime, if they only receive that amount of pay for being on jury service when they are required to be at court from 10 o’clock in the morning and maybe not 1225 going away from there until 4.30 p.m. or five o’clock at night. I think there would be potential difficulties in certain cases. The fees could change. You could look at the fees that are currently paid which I think are £56 for a day. If a trial goes beyond 10 days then there is an additional £57 a day. So you could look at the fees that are payable to jurors and taking into account whether their employers were still paying them. If they were self- 1230 employed, getting evidence as to what their level of pay was. But I doubt you would be in a situation of fully giving recompense for their jury service.

Q86. The Chairman: Interesting points. Thank you for that. We are exploring the idea of trying to possibly load payments so that those currently left in a 1235 difficult situation, for example, the self-employed are in a completely different position on a trial of, say, two weeks compared to somebody who is one of a company that employs 300 people. They are completely different circumstances, yet, at the present time, is it true to say we treat them the same?

1240 Mr Cregeen: In payment terms, yes, but again it may well in excusal from jury service that may be looked at, if it was going to be a particular significant impact.

Q87. The Clerk: Sorry, do you mean to say that somebody who was a self-employed person running a small firm might be excused from doing a two-week trial, whereas somebody on a 1245 salary would not? I am not saying that in a challenging way. I am just saying is that right?

Mr Cregeen: If for example there was a six week trial that you had and someone was a self- employed, by himself, that may well then be an area that would justify that person being 1250 excused, but I think you have to be very careful in that, because you are trying to get a jury that covers the whole Island population. You do not want to end up with a jury that is seven civil servants or seven people from a bank. You want to have a full range of jury members.

Q88. Mr Malarkey: As you have to go to all this trouble anyway, would it not be better for us 1255 to say, ‘Yes, it is your civil duty; that you pay your employee if they are doing jury service’? If the employer wants to appeal to you that they say they cannot if this trial is going to go on for a certain length of time, but across the board, most employers would do it. The hardship is only going to come if it is a long trial. Again going back to one of these letters where one of the jurors – it was a five-week trial – he 1260 thought he was getting paid by work and when he got back to work and found out that he was not getting paid and they had decided not to pay him, there was hardship there, because all he had was his jury money. He actually goes on to say that eventually he convinced the employer that he should pay. So if we said, ‘Yes, all employers should pay jury service’ like the Government does for if you are a Councillor or you are a Commissioner. It is a civic duty you are

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1265 doing and you get time off work to go on sit in the Council or go and sit in the Commissioners. There are lots of employers on the Island will allow politicians or Commissioners to go and service in the Councils and still pay them, because it is a civic duty. Well this is a similar sort of –

Q89. The Clerk: It would be a burden like sick pay, wouldn’t it? It would happen very rarely 1270 because the incidence of serving on a jury is quite rare, but if you were to take two weeks off for sick pay nobody would turn a hair. Most employers would make provision for this. So it would not actually necessarily be onerous, would it? But from your point of view, it would not cause you any difficulties, I assume?

1275 Mr Cregeen: No. If that was the legislation then we would work within that. I think what we would need to ensure was that those that were not being paid – (The Clerk: Yes.) what the level of payment was.

Q90. The Clerk: Well you would be able, without increasing your budget, to be more 1280 generous with those people wouldn’t you, if you had a cash-limited budget?

Mr Cregeen: Yes.

Q91. The Chairman: Well, gentlemen, thank you very, very much indeed. That draws our 1285 questions to a close. Have you got any closing remarks before we all go home for tea? None at all?

Deemster Montgomerie: No, I shall let you get home for your tea.

1290 The Chairman: Well, again, I reiterate my thanks on behalf of the Committee. I would like to thank Mr Karran for surviving the course this evening – he is dying of the flu. And also for bearing with us there on the record side. So once again, thank you very, very much indeed. It has been fascinating.

1295 Deemster Montgomerie: Thank you for giving us the opportunity of addressing you.

The Chairman: Thank you very much. Good night.

The Committee adjourned at 5.50 p.m.

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19th February 2016 Evidence of Mr J Quinn, Acting Attorney General, and Mr R Butters, Director of Prosecutions, Attorney General’s Chambers

67 68

S E L E C T C O M M I T T E E O F T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G E R – L H E H T I N V A A L

P R O C E E D I N G S D A A L T Y N

OPERATION OF THE JURY SYSTEM

HANSARD

Douglas, Friday, 19th February 2016

PP2016/0047 JURY, No. 2

All published Official Reports can be found on the Tynwald website:

www.tynwald.org.im/business/hansard

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2016 69 SELECT COMMITTEE, FRIDAY, 19th FEBRUARY 2016

Members Present:

Chairman: Mr C R Robertshaw MHK Mr P Karran MHK Mr W M Malarkey MHK

Clerk: Mr R I S Phillips

Contents Procedural ...... 31 EVIDENCE OF Mr J Quinn, Acting Attorney General, and Mr R Butters, Director of Prosecutions, Attorney General’s Chambers ...... 32 The Committee adjourned at 4.14 p.m...... 58

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Select Committee of Tynwald on the Operation of the Jury System

The Committee sat in public at 2.30 p.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR ROBERTSHAW in the Chair]

Procedural

The Chairman (Mr Robertshaw): Welcome all to this oral evidence session of the Tynwald Select Committee on the Operation of the Jury System. To my left, we have Bill Malarkey MHK; my name is Chris Robertshaw MHK; to my right Roger Phillips, the Clerk of Tynwald; and to my far right Peter Karran MHK. 5 Thank you very much for attending this afternoon and can I take this opportunity, Mr Butters, of both welcoming you to this Committee evidence hearing and to the Isle of Man, I do not know whether this is your first session of this nature.

Mr Butters: It is, yes, thank you very much. 10 The Chairman: And to you both for your evidence. A couple of housekeeping things though before we go any further, could I ask that all mobile phones are switched off. In the highly unlikely event of the fire alarm going off, please leave by the route you came in, or behind me is a fire escape. It is a small collection today of us but I 15 would reiterate the point that we should not speak at the same time, because it does not pick up for Hansard properly. Mr Quinn, how would you want to me to address you this afternoon? Rather than it being terribly laborious, would Mr Quinn be acceptable on this occasion, sir?

20 Mr Quinn: Of course, Chairman, however you wish.

The Chairman: Well ‘the Acting Hon. Learned Attorney’ gets a little bit cumbersome.

Mr Quinn: I certainly would not want that! 25 The Chairman: Thank you!

Mr Quinn: But I am very grateful for the offer!

30 The Chairman: We do have a set of pre-prepared questions but the way that the Committee have decided they would like to take it today is actually use the written evidence that you very kindly both submitted to us and go through that, and when we get to the end of each session then we will effectively just check to make sure we have not missed anything out. But I think we will be able to explore with some interest the evidence that you have given us. 35 I will not rehearse the list of areas that the Committee is looking at – you are very well aware of them because you have replied to them.

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EVIDENCE OF Mr J Quinn, Acting Attorney General, and Mr R Butters, Director of Prosecutions, Attorney General’s Chambers

Q92. The Chairman: So if we could possibly go straight in to the first issue, which is the size of the jury. 40 But could I also say that the way the Committee feels, the size of the jury and majority verdicts and the potential impact that social media have to a certain extent, certain links, there is a certain relationship between all three. So what I am really saying is we will start with the size of the jury, but we will collect those three together because one does affect the other. So, turning first then, if you are agreeable, to the size of the jury, I was fascinated by your 45 choice of reference, which was America. I was quite surprised by that. I just wonder why you perhaps chose America as your reference point, or have I got that completely wrong? Williams v Florida and Williams v Florida again – is it, Mr Butters, that you go to Florida a lot or … ?(Laugher)

50 Mr Butters: It was just that the overture in that particular case seemed relevant to this argument. Namely that it was not necessary to have 12 individuals on the jury to make an effective panel, and that really was the point that was being made in that case.

Q93. The Chairman: Why do you think it is that, in very broad terms, most jurisdictions have 55 migrated towards around about 12, except for one or two that are greater, like Scotland which is 15? What is it that you think was understood in 12-person juries, as opposed to seven? There must be some fundamental reason why in general terms 12 was deemed to be about right. We in 1939 migrated away from 12 to seven, just as a temporary emergency measure, (Mr 60 Butters: Yes.) which is still there. So there has to be a sort of a strong argument as to why it should be seven and there seems to be a lot of incremental evidence that actually 12 is about right. Would you like to comment on that?

Mr Butters: I think there are arguments for and against. I am not trying to avoid the question 65 but in relation to for instance, 12 people, there is argument in relation to that being a good number because you get a wide range variation of individuals, potentially good debate, good argument and therefore potentially a more reliable verdict. However, conversely as we have put in the document, if there are fewer people my own personal view is that that enhances the argument because it means that there is a smaller group 70 of people and therefore that number of people are better placed to argue their position.

Q94. The Chairman: So is it not wise in issues of such import that the concept of 12 people gives greater opportunity to make sure that other areas that might otherwise not be explored enjoy that degree of consideration and that is it not the case that if there are just seven that 75 there might be a group-think sense that might emerge very quickly? So in other words I am putting it to you, isn’t it actually safer for justice that that debate and discussion is exercised?

Mr Butters: I think it all depends who is actually in the panel. You could have 12 people, you could have eight people who are fundamentally inept at making a decision and four people who 80 push the argument through. Whereas if you have seven, you could have seven incredibly intelligent people on the jury, all of which have a valuable input and therefore it makes no difference whether there are 7, 12, 14 or 9. So it really comes down to the individuals on that jury.

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85 Q95. Mr Malarkey: If I can come in, Mr Butters, on that reverse argument, of the seven and the dominant member of the jury, say maybe yourself who is very good at persuading people one way or the other who … Obviously it is easier to influence seven or six others than it is to influence 11 and my worry has always been that one or two people can actually swing a small jury away from their own thinking. 90 You obviously know yourself you can get juries where, as you said yourself eight not so dominant, with four dominant ones. Just as easily, you can get one or two dominant on a seven, who could totally change a trial, rather than … They would not necessarily be able to do that if there were 12 sitting on that jury. You have got more people to convince.

95 Mr Butters: There are, yes there are more people to convince, but I think I have come down to the same point. It all depends who is on that panel rather than numbers. It is the quality of people on the panel, rather than numbers.

Q96. Mr Malarkey: I still go back to the fact it is easier to convince seven than it is to 100 convince 12.

Mr Butters: It is, I would agree with that.

Q97. The Chairman: Okay. I take your point then Mr Butters, that it depends on the jury. If 105 you have 12, is there not by the maths a greater potential likelihood of some really reliable jurors appearing and doing their duty? In other words, the smaller the jury, the more it is possible to end up with somebody of that nature missing – isn’t that a fair point?

Mr Butters: Somebody who is …? 110 Q98. The Chairman: Well, you said that it depends on the jury. You said to us all earlier that if there were seven really intelligent, committed people who were determined to do their duty in a fairly thoughtful and responsible way, compared to another jury that might, shall we say, be lacking some of that. Isn’t it reasonable to say that the larger the number, the greater the 115 chance of having some of the former in that group? Would you accept that?

Mr Butters: Yes, I would accept that.

Q99. The Chairman: That is fine. 120 What I would like to do is before we move on, Mr Quinn, have you got anything you want to add to that little exchange there?

Mr Quinn: No, Mr Chairman. I think I understand your concern, this Committee’s concern with reference to public perception here, that if you have seven there are potentially, or it might 125 be perceived potentially, more opportunities for one to influence the smaller group, and I can see that.

Q100. The Chairman: We will come onto that in greater detail in a short while but one question we particularly want to address to you because of your significant competence in this 130 area. If the Tynwald Committee ultimately decides that it wishes to offer Tynwald a recommendation that there should be, shall we say, a greater emphasis towards 12-person juries, at the moment it is split 7-12, with the 12 just being on murder and treason.

The Clerk: And selected other cases, obviously. 135

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The Chairman: And selected other cases. You may wish to deliberate on this and perhaps write to us or comment now or both, whichever you choose, but do you see any other way of splitting the cake, effectively and bringing the level of 12-person juries further down the system as it were into more other serious cases? Is there any way as prosecutors you could define that? 140 Could you choose another level? At the moment it is treason and murder and selected other cases. Is there some way that you could encapsulate a larger group of cases which would require 12 or would you find that very difficult?

Mr Butters: I think it would be incredibly difficult. 145 Mr Quinn: Just when you speak of the other cases where you can have 12, it is open to the defence and indeed the prosecution to apply to the judge to increase from 7 to 12 and certainly we have had experiences in Chambers in my time where the defence has sought to increase the number to 12 and so there has been an argument on that point and the judge makes his own 150 decision on that.

Q101. The Clerk: Could I assist perhaps by saying that maybe behind the Chairman’s question is the idea that you could set a limit where all cases attracting a penalty of five years’ imprisonment or more were dealt with by a 12-man jury. In other words, you move from life 155 imprisonment to a lower category, a more inclusive category, but still very serious cases. Now, I have picked five years out of the blue but you could make it one year, you could make it whatever. But I think it is changing the criterion to decide which automatically attracts a 12- man jury would be possible, would it not?

160 Mr Butters: The problem with that is it is creating a two-tier system and it is saying those particular cases require more particular attention from more people, and shall we say less serious offences do not require that attention.

Q102. The Clerk: But that is already the case; you are just moving the border line from 165 murder and treason and selected serious cases downwards.

Mr Butters: But I think perhaps everybody would accept that murder is the very top category and I do not think it would be sensible to then introduce that system for other offending.

170 Q103. Mr Malarkey: If we can expand and without turning it into a scale of a 7-person and a 9-person and a 12-person, which possibly could work, do you think that it is right that we are having to use juries for say a motoring offence and a seven, which is similar to using a seven- person jury for something that could be a five-year jail sentence coming from it, etc? There is a complete difference between the seriousness of a motoring offence with a jury 175 member – we witnessed one last week – against sitting in with a seven-person jury, a drugs situation for instance, where they might end up in jail for 10 years. It must by easy or relatively easy if the sentence is out there that you could have a jail sentence up to 10 years, that maybe you should be using a 10-person jury or a 12, rather than a 7-person jury which is the same as somebody with a motoring offence. 180 The Clerk: There are, for example, a range of offences which attract a maximum of life imprisonment – rape for example, which in England would be tried by a very senior member of the judiciary, quite possibly a high court judge.

185 Mr Butters: Not necessarily.

The Clerk: Certainly someone with a ticket to do that.

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Mr Butters: A class 2 ticket, yes.

190 Q104. The Clerk: But a very senior judge (Mr Butters: Yes.) of a circuit judge or above (Mr Butters: Yes.) and there are already categories of crime dealt with across, which are done differently. Is there an in-principle objection to dealing with particularly serious offences with a 12-man jury, perhaps defining it by offences which potentially involve a life sentence or serious sexual offences or whatever? Is that a difficulty? 195 Mr Butters: I do not see the necessity to differentiate between offences. I think there has to be a policy to either have 7 or 12 whatever the offence. That would be my submission.

Q105. Mr Karran: But don’t you find the situation is they can go from a magistrates’ court up 200 to the High Bailiff’s court, we have that system now anyway, because of course if it is seen as a more serious case, it gets pushed further up the court system, to be fair?

Mr Butters: Yes.

205 Q106. The Chairman: I am struggling with your understanding of ‘serious’ and ours. I think yours, with the greatest respect, appears – and I am challenging you on purpose on this one – to be serious because it is treason or murder, but if you take a situation where somebody is charged with an offence which can deliver them say a 12-year prison sentence and that person is, an old fashioned word, but the breadwinner in a family, and that sentence effectively can 210 have the result of destroying a family circumstance. (Mr Butters: Yes.) Why is that not very serious?

Mr Butters: Well it is.

215 The Chairman: So how do you define the difference between that and treason which the state might well consider to be very serious? To the person standing in the dock, can it get more serious than that? The answer is no, it cannot, so do you not think that your concept of serious is too simplistic?

220 Mr Butters: I think what I am submitting to the Committee is that whatever the serious nature of the offence – and it is difficult to define ‘seriousness’, it is a matter of degree – could be safely dealt with in any event with a seven-person jury.

Q107. The Chairman: This is slightly unfair, but have you majored in suggesting in the UK that 225 there should be seven-person juries in a 12-person system? At any stage has it ever crossed your –?

Mr Butters: Have I?

230 The Chairman: Yes.

Mr Butters: Well, no.

Q108. Mr Karran: Can I ask; obviously you have not experienced a trial by jury yet on the Isle 235 of Man, have you?

Mr Butters: No, I have not.

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Q109. Mr Karran: That is fair enough, sir. So how many trials have you dealt with across, as 240 far as by jury is concerned? Was it a regular thing? What level of –?

Mr Butters: Week in, week out, for 20 years.

Mr Karran: Of trial by jury. 245 Mr Butters: Oh yes.

Q110. Mr Karran: And what sort of level of grade of prosecution were you in the UK?

250 Mr Butters: Everything, right up to manslaughter. I was prosecuting and defending.

Q111. Mr Karran: Don’t they have up to Queen’s Bench, Queen’s Counsel?

Mr Butters: Well, I wasn’t Queen’s Counsel but I was Senior Junior Counsel. And I was able 255 then to conduct any hearing.

Mr Quinn: Just by way of guidance, I think your last case was a rape case, just before you came to the Island? (Mr Butters: Yes.) A serious rape case.

260 Mr Butters: Serious rape, child abuse. So I have done the most serious cases.

Q112. Mr Karran: Because I believe if it is Queen’s Counsel, they can do anything to the level of further down the level?

265 Mr Butters: How it works is if you have a certain experience or wish to become Queen’s Counsel, you make an application. You then lead juniors in extremely long or very complicated trials. But I am bound to say, because of the legal aid system over in England, the use of Queen’s Counsel is becoming less and less. 270 Q113. Mr Karran: I can appreciate that. So your experience as far as the Isle of Man is none, but in the UK you have done trial by jury for –

Mr Butters: Well, I have been a lawyer for 25 years. 275 Q114. Mr Karran: So would you do a couple of hundred a year or …?

Mr Butters: Every week, just week in week out, so I would start a rape trial for instance on a Monday. If that is sorted by Thursday, I would get another one Thursday night to sort out for 280 Monday. It was just continual regurgitation of criminal trials.

Q115. The Clerk: Could I just ask the Attorney General, as the person overall responsible for prosecution: there are occasions when people can apply for a 12-man jury – in your experience, is it the case that somebody accussed of rape would normally apply for a 12 man jury? In what 285 cases are these applications made?

Mr Quinn: I would have to come back to you on that. I did check with my prosecution team and there are only two instances that have come to their mind in the last five years.

290 Q116. The Clerk: And what cases were they?

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Mr Quinn: I would have to check that.

Q117. The Clerk: What were the crimes charged?

295 Mr Quinn: I would have to –

The Clerk: Oh I see, I beg your pardon.

Mr Quinn: I just asked statistically, tell me the times … 300 The Clerk: Well we do not exactly live in a high crime area, thank goodness, so we are looking at a very small sample!

Mr Quinn: Just on the point that Mr Karran makes, just to put things in context again, in the 305 last 12 months we have had 10 jury trials on the Island. That puts it into context. The number we are talking about and that is sort of 10 or 15 a year would be about the sum total. And that is a range –

Q118. Mr Karran: Can I ask you, sir, Mr Quinn, obviously in your life before being the Acting 310 Attorney General, did you have much experience of juries, with jury trials, or were you more on the commercial side?

Mr Quinn: I was in the commercial side. When I started practice I was more a criminal hack and did all of the lower courts and sort of progressed to a jury trial and that was it. I then went 315 to the commercial court.

Q119. Mr Karran: I just asked that question, Chairman, because it is about experience in the courts and there is an awful lot of members in the Manx bar who have never seen a jury trial.

320 The Chairman: Thanks Peter.

Mr Quinn: I was a court lawyer in my specific practice. What I hope came across in the note, I clearly in the last three years have had superintendence of the prosecutions on the Island, and I have a very experienced team and they have advised me really as to the answers that I have 325 provided to the paper which was submitted.

Q120. Mr Malarkey: Could I just ask Mr Butters, following on from the Chairman’s question before about your experiences: he did ask you had you at any time proposed smaller ones. Can you remember any of your colleagues or anybody at any time – I know there was a Ministry of 330 Justice that looked into the whole jury system and we have got a copy of that here. (Mr Butters: Yes.) But did you come across colleagues from time to time who said 12 is too big or we should really be looking for smaller juries; or is it just taken as written, it is 12 and we are happy with what we have got?

335 Mr Butters: I was a barrister within the system, so we worked within the system that was. So it was really was not for us to suggest anything other than what was occurring, so we worked within the system.

Q121. Mr Malarkey: You must have colleagues within the … where you sat down at night and 340 said, ‘I don’t know why we have got a 12-person jury.’

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Mr Butters: It was not discussed, but what was always discussed was that the jury system worked.

345 Mr Malarkey: That is what I was getting at then.

Q122. Mr Karran: Obviously the situation you have gone from being a small fish to a very big fish in the Isle of Man, (Mr Butters: Bigger.) (Laughter) and the situation is you would not really be in the formulation of policy decisions, the likes of fundamental things like that. (Mr Butters: 350 Quite.) But could I just ask, Mr Quinn, you said there were 15 or 17 jury cases … ?

Mr Quinn: In the last 12 months there have been 10 (Mr Karran: Ten, sorry.) trials before a jury. 355 Q123. Mr Karran: Right. Could you just tell me how many have had to be appealed? It would just highlight if there is a concern about the unsafe verdict of a jury.

Mr Butters: I do not think that is on that document. 360 Mr Quinn: I have not got that information.

Mr Karran: That is okay, sir, if you can circulate it to us that would be great.

365 Mr Quinn: It is very difficult, as I am sure you will appreciate, from my point of view because as prosecution, we present the case in the public interest. I do not take delight in the result or whether it wins or fails, we just do our job. But of those 10 there was only one acquittal following trial and there certainly were no split trials – none of them collapsed as a result of the jury. 370 Q124. Mr Karran: So there have been no appeals against a jury’s court in the last 12 months or the last two to three years?

Mr Quinn: I am not aware of any in the last 12 months. There may have been appeals against 375 sentence, but not against the actual conviction.

Q125. Mr Karran: That would help the Committee to know whether there is a problem. Because if there were appeals on the basis that the verdict was unsafe, it would be handy if we could have it over the last say two or three years to see if there is a problem with the present 380 system.

Mr Quinn: Yes, I can certainly let you have a note over the last three years of any appeals, but I do urge you to look at the basis of the appeal because the majority will be on the sentence.

385 Mr Karran: But that is a different issue, yes, certainly sir.

Q126. Mr Malarkey: I find only 10 last year and it is probably a figure we can get from the Registrar, but we were given a list of up and coming cases that we were given at the beginning of December and I am just reading there is one pre-trial, pre-trial, trial, trial, trial. There are 390 about four cases come up in the last month so for it to be 10 in a year, with four in just over five weeks – are we going into a busy period?

Mr Butters: Must be! (Laughter)

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Q127. Mr Malarkey: It would be helpful – maybe if we can make a note just to find out from 395 the Registrar going back a few years, how many there have actually been over the last few years.

Mr Quinn: It is all a question of how the statistics are extracted and presented because there will clearly … we will have a long list of matters where the not-guilty plea may have been entered, but fortunately the majority of those are’ cracked’ – that’s our expression – on the 400 steps of the court, before the trial. I am talking about the number of matters that have actually gone to a jury trial in the last 12 months.

Q128. The Chairman: Yes. So that concludes are initial questions on the size of the jury. But 405 as I think you will recall, I said that we wanted to tie that concept in with majority verdicts and the potential impact on social media. In your submission, you did deal with these three but you kept them quite separate and we are struggling to do that in the same way as you did. I think nobody would argue with the comment that you made somewhere in your written 410 submission that there can be no argument that juries display good faith. (Mr Butters: Yes.) and we concur with that absolutely. But in one section when you are talking about juries of 12 you say, if I may read this out to remind you of it:

In my view dispensing the unanimity of a jury’s decision clearly diminishes verdict reliability, because looking at it sensibly non-unanimous juries can simply just stubbornly refuse to agree.

Doesn’t that concept of just suddenly disagreeing contradict with the concept that you have put forward that juries display good faith? Aren’t those two comments contradictory? Is that 415 what you think happens that you get an element of stubbornly refusing to agree?

Mr Quinn: That is a risk, Mr Chairman, but the reality is when you go through the statistics and the evidence, and I am only going back on what I have found in the last 12 years, there have been three cases where the jury has been unable to reach a decision. We do not know what 420 goes in a jury room and we ought not to, but what we are addressing here is the risk that there could be a stubborn person within the seven, as it is here on the Island at the moment, but the fact of the matter is the outcome by whatever means is that they have been able to reach a unanimous decision in all bar three cases over the last 12 years.

425 Q129. The Chairman: And, Mr Butters, what is the evidence in terms of, first of all, why did the UK bring majority verdicts in and when? What was the reasoning behind it and how do you think it has worked?

Mr Butters: Taking those separately I do not know. I will have to let the Committee know in 430 writing in due course when and why majority verdicts were brought in. I do not know those precise dates. In relation to how it is working, again it is difficult to say. For my part, I have a difficulty with majority verdicts. I have a difficulty with people being brought to a panel to deliberate on a trial to consider the evidence, sometimes for very many hours indeed and then simply to be 435 dispensed with if the majority come to a decision different to one or two people on that panel. I find that a difficult concept to appreciate, for a number of reasons but the biggest reason is that we are dealing with, as we have said before, people’s lives, people potentially going to prison for double-figure years, and for two people or one person, if we are talking about a panel of 12 to walk out of that court room shaking their head thinking, ‘Well, what on earth has gone 440 on there? I personally think that person is not guilty but he is going to prison for 10 years.’ And yet we have dispensed with their view, and that seems wrong to me when we are looking at a

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very high burden of proof so that we must be sure. There can be no doubt before anybody is sent to prison and yet we are dispensing with two views who do have –

445 The Chairman: Up to two views?

Mr Butters: One or two views who do have question marks.

Q130. The Chairman: Right, I think we do have to examine this more, so if you could come 450 back to us with when did majority verdicts come in, why did they come in and the third question I would ask you to write back to us on is to somehow give us some indication as to how often majority verdicts as a percentage, I do not know, in a given area for example, result in convictions as opposed to them, presumably the majority which are unanimous in their conclusions. Is that clear enough? 455 Mr Butters: I will do my very best.

The Chairman: We need to understand this more because you yourself are not able to answer that question why they came in, and I think we have got to look into that more. 460 Q131. Mr Malarkey: Mr Chairman, without making it too difficult for Mr Butters, if you went back to the area you were practising in and probably just ask them to summarise in that one area, it would give us a bit of a picture. Asking him to do the whole UK, it is …

465 The Chairman: No, no, just a snapshot.

Mr Quinn: Mr Chairman, could I possibly just interject for a moment? In my reading this morning I came across a report which I think may be of great assistance to your Committee. And I do not actually know whether it has been superseded which is why I am a 470 little bit nervous in directing you to it, but I found it extremely helpful, and it is a Review of the Criminal Courts of England and Wales report in October 2001 by Lord Justice Auld – I do not know if you have come across that. I would urge your Committee, if you have the opportunity to consider what it says in chapter 5, which is quite long, on juries. Just to give you a taster, it says on page 142, paragraph 17:

We take for granted that a criminal jury should consist of twelve people. This is a matter of tradition rather than logic. There have been some – not many – proposals for change, mostly for a reduction in size to achieve economies and to reduce the general burden of jury service. Though those matters are relevant, they are not, in my view, of sufficient weight or merit to justify changing an institution that draws much of its public support from the number of decision makers that it brings to the task of determining guilt. Traditions of jury size vary from country to country, both in common law as well as civil law jurisdictions. For example, in Scotland, the number is 15.

475 And it goes on and I did find it extremely helpful. He makes recommendations which I think may be of some assistance to you, but I do suggest that you might wish to consider that.

Q132. The Chairman: If I can come back to you on that, my comments are a little contentious really, but the point made there – and we would appreciate seeing that. 480 Mr Quinn: If you do not have it, I can copy it.

The Chairman: The move perhaps toward smaller juries was linked to economy and convenience and nevertheless it would be thought that we would think that the prosecution 485 service would be concerned with issues of economy or convenience, so that is why we need to

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examine the ethical, moral dynamics of this rather than just simply saying, ‘Well, actually maybe it is just more convenient the way it is and we have just ended up here by accident as it happens.’

490 Mr Quinn: Yes, and this deals with social media, it deals with all of those aspects in which you quite properly addressing. It deals with the complicated fraud trials as to whether there ought perhaps to be some thought given to a different type of jury system for that. It is there. But as you quite rightly say, Chairman, it is not for me as prosecutor to promote change of that nature. Our task is to prosecute. The burden of proof that is often on our shoulders is high 495 and we have got to deal with the jury as it is constituted. That is our function.

Q133. The Clerk: Mr Butters, is your view about majority verdicts, which I think must have been in place during all of your period of practice, is that view shared by a lot of your colleagues? 500 Mr Butters: It is. It is a frustration. If I can just give an example: if you are for instance, defending in a serious case, we will say rape, child abuse and the defendant is facing 16 years at least in custody, so the pressure is on as an advocate and for the defendant. If I can put it colloquially, the defendant has had a good 505 run. The evidence has gone well, there has been some good argument and the trial has lasted for five days. Speeches went well, summing up unbiased down the line and the jury are out for three days. They send a note back to the judge saying that ‘We are split, we cannot come to a decision unanimously.’ We do not know the numbers. The judge cannot tell us numbers, they are not allowed to. 510 Q134. The Chairman: Does he know them?

Mr Butters: He knows, or she. The judge then calls us into court. He says that he has had a note. The jury are having problems and at that point the judge would then give a majority 515 direction along the lines, ‘I am now able, members of the jury, to take a verdict upon which at least 10 of you are agreed.’ They then go out and generally within half an hour, they come back with a verdict. And if that verdict is guilty, the defence always feel hard done by. They always have that lurking feeling of ‘Well, what has gone on there?’ There is at least one person who thinks that that person should 520 not be going down the steps for 18 years. And, of course, if it was a unanimous situation, which in my view it always should be, that situation would not occur. There may be a retrial but at least then you would know that whenever you got a verdict, whether it be guilty or not guilty, it was a unanimous decision from those people on the panel, so that they are sure that that person is either guilty or not guilty. 525 So there is always that sinking feeling when the judge gives a majority direction.

Q135. Mr Malarkey: So, could I ask then would you be in favour of a 10-person jury across the board?

530 Mr Butters: A ten? (Mr Malarkey: A ten.) I do not proffer any specific number as being appropriate. What I do proffer and submit is that the jury or the jury panels take their role very seriously and that even a panel of seven is appropriate to administer justice.

Q136. The Chairman: I think we have got to, as a Committee, understand in a lot more detail 535 as to what was in the minds of the system when it went to majority verdicts. Why was that decision taken? There must have been some significant evidence or view that it was necessary, otherwise I cannot imagine in the light of the strength of your argument –

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Mr Butters: I am sure it was probably a government doting to the public to get more convictions. 540 The Chairman: You think so?

Mr Butters: Yes, I feel confident about that.

545 Q137. The Chairman: Okay. So what I would like to do now is to roll the third element of this issue and that is social media, which is a fast-changing situation. I have to say, I was quite surprised with the comfort that you expressed in your submission to us about this, when one considers what has been said by the Lord Chief Justice, as recently as I think it was 2010 initially and then subsequently there have been changes in the law, significant comments made by the 550 Secretary of State for Justice, and there is a series, I think of three Bills. So that seems to fly in the face of what you said, that, ‘Well, actually this is a done deal’. Forgive me for paraphrasing it, maybe you think my paraphrasing is unfair, but ‘it is a done deal and actually it is cool, it is not the issue that you think it is.’ Could you come back to me on that – either/or? 555 Mr Quinn: Just to step in very quickly. I do not think we are saying it is not the issue you believe it might be. We actually identified that it is a real issue. It is part of the real world, where we cannot escape the impact that social media is going to have on the panel of jurors that is actually dealing with the trial. It is a fact of life. 560 What we are saying is that the processes that are in place now – and I will defer to Mr Butters in a moment, he can help us on what actually happens on the ground – is that the courts, the judges are alive to this issue and they are taking appropriate steps. So that is what we are saying. We cannot escape social media. It is there. So then on the steps that are taken now? 565 Mr Butters: Well, it is down to the judiciary. Within the judge’s guidance because of social media and the problems that come with it – Facebook, Twitter and everything else – and the internet, there have been problems in the past where jurors have made their own investigations of, for instance, the evidence where the offences took place or the alleged offences took place, 570 of the judge, of the barristers, but more particularly of the defendant or the defendants in the dock, to establish if they have got any previous convictions etc. Now there is a specific offence that is in place in England, to the extent that if a jury member does their own investigations, then it is a criminal offence and the judge highlights that at the beginning, at the middle and the end and throughout the entire trial, highlighting the 575 importance that a juror must decide the case on the evidence when the jury panel are together; and when the jury panel are not together, they must cease their deliberations. It is impressed upon them the significance of only deciding the case on the evidence. The problem is that social media, as Mr Quinn says, is there – that cannot be stopped.

580 Q138. The Chairman: Traditionally, once a court case engages and it becomes sub judice, the whole argument was nothing must appear on the radio, quite rightly, or in the press. But there are whole cohorts, towards the younger end I might say, of the population who are disinterested now in the radio, in newspapers, probably do not buy one from one month to the next, but communicate constantly and instantaneously on social media. You mentioned Twitter, Facebook 585 and whatever. The jury go in, they are told their phones should be switched off, but when they go home, how are we to know that there is not a significant flow of opinion, as it were, moving around the system that the judge, the court as a whole is completely unaware of? Isn’t that where this

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move towards new Acts coming in occurred in the UK, and do you not think that we should as 590 legislators be deliberating on the very same thing ourselves? But particularly on the Isle of Man, and this is with the greatest respect where you will not have yet had much experience at all, and that is we are such a small community, it is not as if you are conducting a court case in Leeds, where the accused lives 70, 80, 100 miles away and the judge has come from somewhere … Actually this is a small community where – it is a bit of a 595 cliché – we sort of know each other. So there could be a flow of information relating to an individual occurring below the cognisance of the court, which might very well influence a jury in a quite passive way. I have heard the judge say, ‘Don’t go on to the internet.’ Well of course, they do not need to go on to the internet, it can be just be there in front of them an hour after they have left the 600 court that the general consensus is, ‘Well, actually this person is a bit of a …’ whatever … I think I have expressed my anxiety in that area.

Mr Butters: I do not see how legislation could be brought in to overcome that. The problem, it seems to me, can only be overcome by warnings by the judge and directions 605 by the judge to the jury.

Q139. Mr Malarkey: Can I ask Mr Quinn, from what Mr Butters has said, new legislation has been brought in to cover this in the UK, are you happy that we have enough legislation to stop this or to penalise those that do? And expanding on what the Chairman says, this is a small 610 island, it is a small community, the newspapers report on a cat going missing, so if there is somebody with any type of a record, there has been a newspaper article about it somewhere down the line, all you have got to do when the jury knows there is a person in is Google the person’s name and get, ‘Oh yes, he was done for this last year and that the year before’. Do we have enough …? 615 This can make a whole trial collapse, which can be costly. Are you happy we have enough in place to stop this happening?

Mr Quinn: Mr Malarkey, I am never happy that we –

620 Mr Malarkey: You are never happy, Mr Quinn? I am sorry to hear that! Is that ever since you got the job as Acting … ? (Laughter)

The Chairman: That is on Hansard, Mr Quinn, we have got you! (Laughter)

625 Mr Quinn: My difficulty is that we do have the offences there to cover that situation but we should not be, in my view, and I do not mind being on Hansard saying this, delving into an old criminal code to try and put an interpretation on something now that does not fit the world we live in. I would like to see it enacted, in clear, unequivocal terms, clearly what the mischief is and the offence that will result. 630 If you wanted me to quote section 347 of the Criminal Code –

Mr Butters: Section 347, yes.

Mr Quinn: – we are talking about acts – we had better quote it. 635 Mr Butters: It is acts against public justice in reality – contempt

Mr Karran: And that is under what, the 1872 Act, is it? What Act is it under?

640 Mr Quinn: This is the Criminal Code Act 1872:

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Whosoever shall do any other act or thing (not hereinbefore or in any other unrepealed Act of Tynwald or bye-law made by authority of any Act of Tynwald, specified or referred to, or otherwise provided for by law), in contempt of God or religion, or in contempt of the Queen’s Government, or against public justice, or against public trade, or against the public health, or to the disturbance of the public peace, or injurious to public morals, or outraging decency, shall be guilty of a misdemeanour.

Now, try and translate that into social media today, and I have difficulty.

Q140. Mr Malarkey: Sorry, Chairman, what I am asking then – that is an 1872 Act and they might have been out for public flogging in those days – are you happy that you have the powers 645 to say you are entitled to five years’ imprisonment for corrupting a trial like that, or interrupting it because of your actions?

Mr Quinn: I do not actually know if you can get five years, but I am satisfied that we have structurally in legislation – (Interjection) I am sorry, it is two years – I have just pointed out. 650 Mr Malarkey: It is two years then?

Mr Quinn: Yes.

655 Q141. Mr Karran: Chairman, so the point is that a legal precedence has been set in the UK. I would take it that that legal precedent will be followed up through our court procedures and we will need a change in primary law to bring it about?

Mr Quinn: We would have to change primary legislation. 660 Q142. Mr Karran: So you have got your answer there as far as that is concerned.

Mr Quinn: But we do have the charge there, we have the ability, but I just think that it needs – 665 The Chairman: To be articulated in a clear fashion.

Mr Quinn: To be articulated and updated.

670 Mr Malarkey: That is a recommendation.

Q143. The Chairman: That is clear. I was interested in your written submission where we are talking about social media and it talks about how it is addressed, but then it says in your penultimate paragraph in this section it 675 says:

To disobey these directions from the judge would of course, and a jury are told this, be a contempt of court and many jurors in England and Wales after such very specific directions from the judiciary have been so imprisoned for contempt over the years.

So that suggests actually it is happening quite a lot then? (Mr Butters: No.) Well, that is what it says. That is what you have put!

Mr Butters: That might be the impression from that wording, but it does not happen very 680 often. It is a pretty unique situation when a juror is sent to prison.

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Q144. The Chairman: ‘And many jurors in England and Wales’, it says, ‘after such very specific directions … have been so imprisoned’. So you have perhaps overemphasised that. (Mr Butters: Perhaps.) 685 I will delete the word ‘many’. (Laughter)

Mr Butters: Jurors have been sent to prison.

Q145. The Chairman: That is fair enough. 690 What I want to do is bring some of these things together and relate it to our specific circumstances here, where we have small juries. By definition, small juries the size that we have must be unanimous. (Mr Butters: Yes.) I do not think any of us would feel that you could go for a majority verdict on seven. (Mr Butters: No.) We are saying effectively that there is a potential – I am not asking you to agree with this, 695 this is just an argument I am putting forward – there is an element of concern about the impact of social media; but because we have small juries, we have unanimous verdicts, we have the potential threat from social media and if we had a situation – and I have put this in other evidence sessions to those before us – where we had a drugs gang working out of Liverpool, for example, and they began to appreciate that all they needed to do through social media was 700 target one juror, because we have small juries and therefore we have unanimous verdicts, they only have to bring down one juror, unbeknown to the court, and that court case falls. There is no evidence that we know of that this has happened, but is it not unreasonable to think that as the potential impact of social media raises its head increasingly that that is a possibility that we could run into quite unwittingly? Do you think that is an unreasonable 705 statement?

Mr Butters: I think it is a reasonable statement to make.

The Chairman: Thank you. 710 Mr Quinn: It is clearly a risk.

Q146. The Chairman: Because the capacity for that – I am picking a drugs gang, it could be anything else – in our circumstances here, where there is such a small community and 715 ‘everybody knows everybody else’, it will not be that difficult. It will be easier in our circumstances for that group to target an individual than in much larger jurisdictions, I would say, because we are such a small community.

Mr Quinn: And I think that a reasoned conclusion – but the same would apply to two out of 720 12, because we are such a small place.

The Chairman: Well, perhaps, but let me just test you on that one. If it was majority verdicts, two out of 12, then you have got to target two and the risk to the people trying to impress their view on a particular juror becomes ever more difficult and the 725 greater the risk then develops of them being discovered, if you like.

Q147. Mr Malarkey: I was going to expand on a similar question that went to Mr Montgomerie when he was sitting where you are last week. His view at this time was that the type of drugs charges etc that are coming through are only the runners not the actual big boys. 730 But of course, again technology is working on the side of the police as much as it is working on the side of the criminal, where more and more they are getting closer to the big boys through sharing of information. So this type of trial is not that far away, as far as I am concerned, looking forward. My preferred jury would be a 10 with a one. I forget which jurisdiction – because we

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were read out last week all the different jurisdictions – one jurisdiction does actually allow a 10 735 person jury with a 9-1 majority verdict. That to me would eliminate this possibility of happening and level off my worries with concerns of one person being nobbled on a seven-person jury, which makes the whole trial collapse. Is that reasonable or …?

Mr Butters: On that point, I have done some big cases, I have never known a jury being, if we 740 use the word ‘nobbled’ – it is not the best of phrases, but we know what we are talking about! I have never known that situation and it would be pretty unique if it ever occurred.

Q148. Mr Karran: Can I just say; obviously you would not know who in the jury would be voting against it anyway, or would you know that? (Mr Butters: Against?) On that assertion 745 would you know how the voting went, which Members would have voted for guilty or not guilty?

Mr Butters: No, you would not know that.

750 Q149. Mr Karran: Yes, that is a fair point. That is one issue. I just think we need to be clarified about that. Can I just ask: you made an important point about the fact that we need to change primary legislation, because the 1872 Criminal Code does not really reflect modern times. Are there any moves as far as the Government to bring in the issue of the primary law that has been changed 755 in the UK to do with jurors getting involved with the internet and that, like the case there was recently?

Mr Quinn: Not to my knowledge.

760 Q150. Mr Karran: So really it would have to be a recommendation of the Committee if they want that.

Mr Quinn: Yes, I believe so.

765 Q151. Mr Malarkey: Can I come back to our word of the day which is the ‘nobbled’ juror, if you don’t mind? (Laughter) You were saying you have no experience of this in your time, but you deal with a 12-person jury where you can have a majority of 10-2. So in your situations, your trials, you would have to nobble three to effectively turn that jury. We are talking here, we only have to move on one of 770 seven, which is a completely different experience from what you have had. That is why you have probably never come across it.

Mr Butters: I have never come across it because I do not think it is ever happened to be blunt, because I do trust the integrity of the jury system – you have perhaps gathered that from 775 my submissions. I do trust them. They are under oath and another direction that the judge gives them is that ‘If anything occurs during the course of this trial that is of any concern to you whatsoever, such as the influencing, then you must tell me.’

Q152. Mr Malarkey: I totally appreciate what you are saying, but can I again reverse it – I am 780 the criminal. I am on trial or one of my people is on trial. In my mind, how am I going to influence that jury? I am going to have to try and influence three members of that jury to turn that around. One of them is likely to talk and tell the jury or the courts what is going on, because my trial is in England. Now, I am in the same situation in the Isle of Man with a seven-person jury. I have only got to 785 influence, lean on, one member enough, and I have got that trial completely gone the other

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way. It is two entirely different scenarios, if you like, with what we have here and what happens in England.

Mr Butters: It is, because of the smaller number of jurors – 790 Mr Malarkey: And no majority verdicts.

Mr Butters: And no majority verdicts and a smaller island. But all the argument is built on the premise, ‘is there going to be any nobbling, any influencing?’ and I do not think that is 795 something that will occur very often, if at all.

The Chairman: Okay. Peter, did you want a final one? We will move on after this

Q153. Mr Karran: One that I was just interested in, maybe we could have a look at the 800 statistical information. Obviously with the case of the jury where they could not get a verdict, maybe we should look over the last say two or three years to see whether there have been other cases where they could not get a unanimous verdict. Would the court records show that there was one, two or three people in the jury … ?

805 Mr Butters: No.

Mr Karran: They would not know that?

Mr Butters: No. 810 Q154. Mr Karran: But the only thing we could take then is that maybe look at the statistical information over the last three or four years, to see whether in any jury trials how many there have been that have not –

815 Mr Quinn: Are you talking about the Isle of Man?

Mr Karran: Yes, the Isle of Man.

Mr Quinn: We know the number of hung juries in the last – 820 Mr Karran: There are two this year, and when was the last time it was a problem?

Mr Quinn: There have been three cases in the last 12 years.

825 Mr Karran: Three in the last 12 years, okay. This puts us into some sort of idea of whether the problem is there, here now.

Q155. The Chairman: We will move on now, keep going. Peremptory challenges: there is a sort of a consensus growing across the board here, and 830 your words in your kind written submission say:

I have concluded that I believe peremptory challenges are now outdated as a concept as there ought to be transparent and equal rights concerning jury selection process. I consider if either the prosecution or the accussed makes a challenge to a juror that it should be on the basis of there being a good and sufficient cause for that challenge to be made.

We would find difficulty in disagreeing with that statement, but do you want to elaborate upon it any further?

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Mr Quinn: It would certainly require primary legislation, for one. Secondly – and I may again defer to Mr Butters here – we have again been giving some further consideration to this, on the 835 premise that if we just dispensed with the rights for either prosecution or defence to have the right of peremptory challenge, whether there were any other safeguards that were required. Mr Butters has helpfully referred me to a procedure in the UK, which I will ask him to advise you about in a moment, which I believe ought to be considered.

840 The Chairman: Thank you.

Mr Butters: Thank you. What this relates to, again, are very specific and very serious cases and relate to cases that involve national security, which we could have one in this particular jurisdiction, and security and terrorist cases. 845 So in those exceptional circumstances, the Chief Constable can make representations to the Director of Prosecutions that further checks would need to be made on the panel, because of the sensitive nature of that particular trial. The Director of Prosecutions would then make reference to the Attorney General and make representations by way of an application that those authorised checks should take place, so they 850 are in effect enhanced security checks. With the consent of the Attorney General, those checks are then carried out and if anything comes back that is of a worrying nature that the Attorney General took the view that that particular jury member or panel should not sit on that particular trial, then the Attorney General has the power in the UK to then write to the trial judge and indicate that a particular jury 855 member or the panel as a whole should stand by.

The Chairman: Stand down?

Mr Butters: Stand down, stand by, yes. 860 So that is a hybrid situation but it is with the authority of the Attorney General, under very specific circumstances. I am hoping that those circumstances will never occur in these shores, but it is a situation that we would say is important.

Q156. The Chairman: So that exception obviously is already built into UK legislation (Mr 865 Butters: Yes.) and could just as easily be built into a new piece of legislation here.

Mr Quinn: I just wanted to bring that to the Committee’s attention.

Mr Malarkey: We do not have that at the moment. I am trying to remember – 870 Mr Quinn: At the moment, you see, we have the peremptory challenge, so we could just make it without cause. We could just simply challenge the jury.

Q157. The Chairman: Could Mr Butters explain to us the timescale that the Attorney General 875 in the UK has to work to in those circumstances? Because there is a time run-in, isn’t there, to the process of calling a jury forward? How does that work, out of interest?

Mr Butters: There is. Within the actual guidelines themselves, there is no time limit. I can only assume that is because the guideline does not want to constrain the investigations, given 880 the serious nature of the potential case. So there is no time limit.

The Chairman: Oh I see. I am confused here, so it puts the onus on the judge to adjourn a trial, or how does it work?

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If the authorities have concerns – real concerns, as you indicated – they have got to pick up 885 on that. There has got to be a process that they are going to pick up on a jury, (Mr Butters: Yes.) they are going to have to be quite fleet of foot, aren’t they, to – ?

Mr Butters: Oh, absolutely, yes.

890 The Chairman: Okay.

Mr Quinn: As an Attorney usually is … ! (Laughter)

Q158. The Chairman: Would we dare to question that! 895 Are there any other concerns that you would have about us moving into legislation to adjust that, any comments at this stage? Early doors obviously, but …

Mr Quinn: No, I think this is in the public interest.

900 Mr Malarkey: We are quite unanimous, I think, with that moving forward.

Q159. The Chairman: So, then if we can move on to exemptions from juries. Interesting submission: again, there is a sort of a consensus growing around this that we are not in a good place. I think I recall from our last evidence session that we have, incredibly, about 20,000 905 people missing who could be on the list and who are not. We are seriously deliberating on separating the electoral roll from the jury roll, if you like, if that is the way of putting it.

Mr Quinn: If you were to substantially curtail the exemptions, you may not need to consider that because of course if you go to the qualification of being on the electoral roll – I will come 910 back to that in a moment – and you do not give the electorate the opportunity in that process to claim exemption, then you are certainly creating the larger pool.

Q160. Mr Malarkey: But the very fact that, maybe, I do not know what the percentage was of people who are not on the electoral roll are sliding their responsibilities and you are now 915 penalising those who have gone to the trouble of going on the electoral roll, and we do not consider that to be fair for everybody. Because people are not going on the electoral roll, purely and simply so they do not go on jury service.

Mr Quinn: Mr Malarkey, I entirely agree with that. Of course, they are acting in breach of 920 their statutory obligations. (Mr Malarkey: Exactly.) All that I can say is that I am aware that the Electoral Registration Officer is certainly looking at this very seriously and that we are instructed, or I am instructed, to look seriously at prosecutions and that investigations will be undertaken if people do not do as they are required under the legislation and return their electoral roll. 925 Mr Malarkey: I do hope the Acting Attorney General puts a press release out to that effect, as they are collecting voters at the moment.

Q161. The Chairman: It is sort of reverse of where we should be, really in the end. We are 930 almost encouraging people not to do their civic duty, and that has not got to be the right way of doing it; but neither is it the right way to force people in. It should be a default position that they have a duty to do it and it is only then deselected by certain very specific categories of people for very good reason should not serve.

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935 Mr Quinn: Clearly that is a policy decision. The law as it stands it is part of a person’s statutory duty to return the form and to be a jury member if so called upon, unless you are exempt.

The Chairman: Yes. Do you want to make any comment about where you think … further 940 than that which you already have, about exemptions. We had very articulate and impassioned pleas from Deemster Montgomerie that judges should indeed be excluded, and we were profoundly impressed by that, but –

Mr Quinn: You might find in this document I am going to share with you a contrary view: that 945 judges ought to be able and it might be educational for them, but perhaps in a different way, obviously –

The Chairman: We will receive that evidence with interest!

950 Mr Malarkey: And that goes back to my original argument of dominant member of the panel of seven being able to influence the whole jury!

The Chairman: So no further comments then on exemptions?

955 Q162. Mr Karran: Yes, I have some. Obviously we think that the majority of people do not go on a voters list because of jury service. It could be because they do not want to vote for the Members of Tynwald. What would be the legal constraints for us to maybe take the tax records of individuals, and just simply use the tax records as an aide-mémoire towards putting people on the jury – I know 960 there are an awful lot of wealthy people who do not pay tax – but that would be one way of getting an awful lot more people on the voters’ … ?

Mr Quinn: You would have to create the vires, again primary legislation. At the moment, the structure is the electoral roll and out of that process comes the jury list. You would have to 965 change the –

The Clerk: In fact pretty much any reform to juries is going to require primary legislation because it is all set out largely in the Jury Act.

970 Mr Quinn: Yes.

Mr Karran: So there are ways forward if the politicians want to address this issue of people not being on the voters’ list.

975 Mr Quinn: If people are not complying with their statutory obligation, what is the choice? They are either held to account under the Act and prosecuted, if that is suitable, or alternatively the law is changed and a different process designed. It is the same thing –

Q163. Mr Karran: What I am talking about is just the names and addresses of individuals. It is 980 crazy, you can down one street with 120 houses in a council estate – the council must know who is living in their council houses. So there is a way of addressing this issue.

Mr Quinn: Yes, well there is a way at the moment because what is going to happen is that if people do not return their return that has been sent to them, and the matter is referred for 985 investigation, then it becomes a criminal investigation, and those gateways are open.

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Mr Karran: Well, I am very glad to hear that. Because it amazed me, we used to have three in the old assessment board when I first came here and we had not spend hundreds of millions of pounds on computers then. I think that is more likely … There needs to be a political will in order 990 that people are on the voters’ list.

Q164. The Chairman: If we can then move on. Thank you very much for that contribution. We seem to have produced – on the advice of the jury issue – a big stick in a hornet’s nest and every time we bring this up, it buzzes loudly. I think your submission is quite clear in that 995 regard, but I think I particularly want to – apart from on any points my colleagues may have and yourselves you might wish to further elaborate – I was interested in your commentary, I think it is here somewhere, about counselling and supporting jury members. Do you think that is something of an omission at the moment? (Mr Quinn: Oh, yes.) Could you elaborate, sir?

1000 Mr Quinn: If I can just again … Mr Butters has experience of some pretty awful cases and certainly – I will not speak for him, he can speak for himself – there are often going to be cases where the jury members are going to be faced with great difficulty in coping with the evidence that they hear and counselling should be available to them.

1005 Q165. The Chairman: Could we go to Mr Butters, sir.

Mr Butters: I can say no more than that. The amount of really horrendous trials I have done and the jury hear the most dreadful facts, that they would never dream of hearing in their normal day-to-day life, and then they are asked – 1010 The Chairman: Never before, in fact.

Mr Butters: Ever, quite. They are then asked to sit and listen to quite disgraceful evidence, make a decision upon it 1015 and then in effect are said by the system, ‘Thank you very much, off you go.’

Q166. The Chairman: How does counselling work in the UK then?

Mr Butters: It does not occur. 1020 The Chairman: It does not occur?

Mr Butters: No, no.

1025 Q167. The Clerk: Sorry to break in, but there is a legal difficulty about this, isn’t there? Because they are not allowed to talk about their deliberations and it is a bit difficult to talk about the case and the impact it has had on some of the jury members without breaking that prohibition.

1030 Mr Butters: Well, the prohibition of course is not to discuss the case during the course of the proceedings.

Q168. The Clerk: But they also cannot talk about the way in which they reached the deliberations and that … 1035 I realise that it comes at the end of the horrible evidence, but it is part of the whole experience that may well require some treatment that at the moment the law does not provide any exemption for.

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Mr Butters: There would be no objection, as far as I could see, for a juror to be spoken to by 1040 a counsellor as to the impact and the effect that that trial has had upon them without divulging the specifics of the discussions that have occurred in the jury room. So it is the impact upon that individual that requires help and nothing more. I do not think that would affront any legal obligation that that juror had.

1045 Q169. Mr Malarkey: I would have thought that there was a confidentiality issue there with the counsellor that they could not divulge anyway afterwards what they were discussing with a client, just like a doctor’s confidentiality.

The Clerk: That is a slightly different issue, with respect. I think – 1050 Mr Butters: They do not need to divulge any specific facts because, at the end of the day, a criminal court is in the public arena. The facts of the evidence, the facts of the case, members of the public could sit from start to finish, so the facts are not in debate. What is in debate is what occurs in the jury room and what is discussed. 1055 So there would be nothing wrong at all in a juror going to a counsellor and saying, ‘I have been sitting on this most horrendous child abuse case. There were four complainants, this is what happened to them, and I just cannot get it out of my mind.’ That would not be a problem, because that would be simply addressing what the public would know anyway.

1060 Q170. The Clerk: But there would be a problem if there was an acquittal and the particular jury member was uneasy about it and wanted to talk through the process of reaching a decision. I am just sort of … there is a problem where you would need to create a statutory exemption perhaps for jurors to be able to talk to somebody, in confidence, and under similar sort of prohibitions about speaking and divulging this, but where they could actually unburden 1065 themselves without any sense of having to watch what they said. Because it is a moment where you need to be able to speak from the heart, rather than stop, I think.

Mr Butters: That is an interesting point.

1070 Mr Quinn: We could certainly look at that.

The Clerk: I realise it is on the margins slightly, but you can see where I am driving.

Mr Butters: Absolutely, I think it is an important point. 1075 Q171. The Chairman: If you would be kind enough to think about that and maybe drop us another line with your further thought to help perhaps guide us from your perspective on that one.

1080 Mr Quinn: Yes, I can, and will, sir, of course.

Q172. The Chairman: With that, and thank you very much for that, we will move on to the next item – and to some extent we have touched on it with the electoral roll. We were quite fascinated as to the machinations of compiling the jury and the clear thought came to us, why 1085 do we need to bother with sheadings and the like now? Why not have one roll, whatever that roll is. What is the advantage at all of having it by sheadings?

Mr Quinn: In my view, none at all, and we are suggesting –

1090 A Member: Historical.

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The Chairman: I do not know whether he said hysterical or historical there! Historical.

Mr Quinn: Effectively because we will have a larger – on our suggestion – a larger pot and the random selection, possibly by computer or something of that nature, it is going to be from all 1095 over the Island so why ought it to be just simply …?

Q173. The Chairman: There is nothing significant about the way it works at all, it is just tradition?

1100 Mr Quinn: It is tradition.

Q174. The Chairman: Okay, fine. So if we can then move on to jury payments. I am much amused by this statement:

I consider this contains adequate provision for remuneration which need not be disturbed.

Can we disturb you then? It is not the view that we are beginning to construct. Let’s throw 1105 some of our thoughts to you and see how you react. There are a significant number of employers now who … and bearing in mind that we are making the assumption that we have got a much larger number of people that we can draw a jury from, in the first instance, so the likelihood of an employer finding one of his or her members of staff actually on a jury recedes in direct correlation to the greater number of people 1110 you have on the jurors. So given that, and given that most large employers would not turn around to their employee in this day and age and say, ‘I am not paying you because you are on jury service’. They would say, as you have said, ‘This is part of our civic duty’, and employers just simply have to turn away from that. So you could argue, why provide financial support to those? Conversely, somebody who has recently set up their own business and has just managed to 1115 capture sufficient customers to make their business just about viable and they are close to the edge as it were, but trying to struggle to the surface financially. The provision of funding to them currently is inadequate, we would argue. Why not therefore consider reviewing this, revisiting this whole matter and saying perhaps we as legislators should be saying that employers above a certain size, a number of employees 1120 should be paying their staff who are on jury service, but that we perhaps then want to increase the payments to those where employees are working for very small companies or who are self- employed. So we do not really feel that we are content with ‘need not be disturbed’, and I just wonder whether I have disturbed you at all? 1125 Mr Quinn: You have, Mr Chairman!

The Chairman: I have? Oh, thank you! (Interjections and laughter)

1130 Mr Malarkey: Now he is not only unhappy but he is also disturbed! (Laughter)

The Chairman: We have it on record, Mr Attorney General!

Mr Quinn: It just goes back to … It is a policy issue really. What is jury service seen as? Is it 1135 seen as a public duty to which everybody is required to take their role, to play their role? Because using the example which you kindly explained, how do you then distinguish between somebody who is employed – you have mentioned self-employed people – and the person who is losing a lot of money, because then money features into this? If you remove many of the

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exemptions, you may have doctors, dentists and the like on jury service, and how do you 1140 compensate them, if compensation financially is – ?

Q175. The Chairman: I think as legislators we are constantly facing this issue about proportionality and it tends to be that we in many laws that we tend to say, ‘Well, this will not apply to a self-employed person or a small company with less than five or less than ten.’ I cannot 1145 think of any off the top of my head, but I am sure they are there –

Mr Quinn: What you are then doing is reducing the pool and so you are losing sight of the random selection. If I could perhaps help you of the basis upon which people can apply to be excused, because I 1150 am not suggesting that that is disturbed. You can be excused if you have sat on a previous jury, that obviously follows; you have a pre-arranged medical appointment or operation; you have a mental or physical disability – and I am summarising these; you are a student studying off-Island; you have pre-booked travel arrangements; you are no longer resident in the Island; you are a primary carer for a child under the age of 16; you do not speak English; you are self-employed 1155 and would suffer substantial personal or financial hardship; or any other good and valid reason. Now that would be for –

Q176. Mr Malarkey: Can I just say, Mr Quinn, we were not trying to reduce the pool by saying that these people were not supposed to be in on the jury; we are trying to reverse the 1160 whole situation or suggesting that to make it straight, your employer pays, end of story. Government could pay, banks can pay –

Mr Quinn: Oh right, I am sorry.

1165 Mr Malarkey: – because these people are going forward and then in my mind then, if these people are not employed by an employer, they can then apply – because we have mentioned maybe 10 employees – anybody whose bosses will not be paying them can then apply to be paid. Then we would have more money to pay them more, because they would be losing their earnings. 1170 But what we would have saved on all those Government workers, bank workers etc. we are saying by law you have got to carry on paying those people on the jury, because your company is big enough to cover it. Like you do – I have brought it up many times – local authorities, councils, lots of councillors are still allowed so much time off to go and sit on the council or whatever and still get paid by their employers. Certainly if they work for the Government, it is part of a 1175 statutory right they can go and work in the council or whatever without losing any wages. Really to put the jury on the same sort of footing as that and then we could afford to pay those in a bit more hardship a little more money without it costing us a fortune.

Mr Butters: Well, in the UK the employer is duty bound to pay the salary, so there is no 1180 question about that.

The Chairman and Mr Malarkey: We did not know that.

Mr Butters: Yes, they are duty bound. 1185 The Chairman: All employers?

Mr Butters: Yes. And if there is an employment situation that occurs and the employer does not pay or refuses to pay because the person is on a jury panel, then of course, the individual 1190 can claim constructive dismissal.

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Q177. The Chairman: Oh, isn’t that a little bit … ? Hasn’t the pendulum swung just a little bit too far there? Very small companies burdened by a regulation which potentially damages them, where they have got one or two employees and that person could be on a trial, on a jury service, for a month and it then would constitute constructive dismissal – is that fair? 1195 Mr Karran: It is a matter of employment law, to be fair.

The Clerk: I suppose you could say it is like sick leave, isn’t it? It is a very occasional sort of thing to happen, because you do not get jury service very often, but it would be grounds for 1200 excuse on hardship if it was a month-long trial and the person worked for a three-person company, and really the company would be put into difficulties. Because I think that some of the excuses are not for serving on any jury; it is serving on this jury and this trial, and if it is complex fraud that is quite rare on the Island, you could be excused from that, but be required to serve on a rather shorter trial where you are only talking about 1205 two days off.

Mr Malarkey: But is that not covered by the exceptional hardship by reason of business?

The Clerk: Exactly, yes. 1210 Mr Quinn: You could address this through some new regulations.

The Chairman: Okay.

1215 Q178. Mr Karran: Can we just ask, Chairman, what is the employment law on it on the Isle of Man? I take it there is no statutory obligation for employers to pay for employees, even though we have come a long way in 30 years.

Mr Quinn: Can I come back to you on that? Just to make sure I get that right. 1220 Mr Karran: Yes, if you would.

The Clerk: I do not think there is. I think there have been stories where …

1225 Mr Quinn: If I can just confirm that.

The Clerk: Yes, but I think we are out of kilter with the UK on that.

Q179. The Chairman: That brings us to the end of the list but I think there is one item which I 1230 think has slipped my mind and that is on advice to juries and complex financial trials and whether you feel there is anything we should be deliberating on there. In an age – and I have said this before at other hearings – where the finance industry itself sometimes does not understand its own industry which is why we sometimes get into issues, like derivatives and goodness knows what, which are quite difficult things to get your head around, 1235 do you think there are any circumstances there that we should be considering in order to make sure that a jury is well informed and advised? Let’s be contentious for a second: what about the concept in those circumstances of specialist juries?

1240 Mr Butters: No. (Laughter) Would be my response. There are occasions where I have done complicated financial cases. It is for counsel and for the judge to ensure that the jury understand it, and that is done.

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So, Mr Chairman, I think you need to leave it to the good professional sense of the bar and the judge. 1245 Q180. Mr Malarkey: That is interesting, Mr Butters, because Mr Quinn said very early on in the debate that there could be an argument for specialised … (Mr Quinn: Yes.) We have finally found something that they do not agree on! (Laughter and interjections)

1250 The Clerk: It was mentioned in the old report.

Mr Quinn: I am just going to add that I entirely agree with Mr Butters, save for … We have not experienced this here on the Island yet but where we are talking about a major fraud case, and if you look to the City of London you read of cases going on for 10 months or so, and I 1255 actually mentioned this to Mr Butters on the way here. I can see there could be circumstances in a situation like that where in our small jurisdiction again it would be nigh impossible to actually empanel a jury that could give us 10 months of their time, with the restraints of being a jury member that flow from it. I was exercising my mind whether some consideration ought perhaps be given to a sort of 1260 special type of court for that, where it could be a judge sitting with two experts to take it away from a general jury.

Q181. The Clerk: In some jurisdictions, as I am sure you know, the defence can opt for a trial by judge alone - the advantage of that being that the reasoning is on the record and in certain 1265 circumstances, for example, if you made a calculation if you were charged with a sexual offence of a particular kind, you might think, ‘Actually I want a judge to do this and you could include that perhaps in a reform which might work, which might solve some of these very rare, once-in- 10-year type problems, but when they occur they are terribly important, aren’t they?

1270 Mr Butters: I do not think many defendants would prefer a judge to sit in judgement, over a jury.

The Clerk: Lord Justice Richards did.

1275 Mr Butters: Yes, he did!

The Chairman: Well –

Mr Quinn: If I could just say, Chairman, sorry to interrupt you, there is some commentary in 1280 these papers I am going to leave with you, (The Chairman: Fantastic.) where that was looked at. It has obviously got to be looked at in the context of the Isle of Man, but I could see that there could be difficulties empanelling a jury for a long trial.

The Chairman: We are a finance sector now and it would be wrong of us not to consider 1285 these things. Bearing in mind that Tynwald so rarely looks at the jury system – I mean it is the first time in memory actually that we have done this –

Q182. The Clerk: Sorry, it just occurs to me: there is not part of this that the Moneyval type of scrutiny would need to think about, just to check that locally we are in charge of a robust 1290 system which, rare though they may be, can occur where you have a finance sector, where they might actually want to ask us what we would do in certain circumstances like this?

The Chairman: That is interesting.

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1295 Mr Quinn: Moneyval will look at the effectiveness of the structures that we have in place and they will certainly be questioning Prosecution and me, with reference to those financial crimes that we have prosecuted and looking at the outcome of them. They may well ask the questions –

The Clerk: If you would like time to think about that, because actually this is a very complex 1300 area.

Mr Quinn: They may well ask the question, ‘What would happen if you had such a major fraud case here, either in the making or whatever, and you then had difficulties empanelling your jury?’ 1305 All that we could say at the moment is that the question of juries and the process and procedures are being looked at. We will not need an answer, in other words, but it is certainly a very fair question that they could put that to us.

Q183. Mr Malarkey: Before we finish today; I think there has been a lot of great discussion 1310 on what has gone on in the past and your experiences, for which we thank you. The Chairman has just referred to the fact, I do not know when the last time that a select committee looked into the jury system or the whole system, and I do not know when the next one will be, but we have got to be not looking backwards; we have got to be looking forward. When I gave you the case as of a seven-person jury and somebody tried to nobble them, or this type of thing, we 1315 have got to come up with plans now for the next generation going forward, before the next, so any further views you have got, I would rather them look forward, rather than us looking back. We are going to get more complex trials, every year they are going to get more complex. Crime becomes more complex. We have got to future proof this really, and that is what we are really here today to look at. 1320 Mr Quinn: Thank you, Mr Malarkey. We certainly have had had to try and look forward, which is why we have come and said, peremptory challenges are outdated, outmoded. We need to move on. My view again – and it is the house view – is that we need to look at the electoral roll process, create a bigger pool, deal 1325 with the issues of exemptions which are archaic in reality. So we are looking forward. The challenge that we have is that evidence-based – looking backwards, of course, that is where we get our evidence from – we cannot see anything wrong with our jury system at the moment, because it works. That is the problem that we have in coming here.

1330 Q184. The Clerk: What is interesting, though, is that we are not looking at something that is static because we have become slightly out of kilter, perhaps, with English practice in terms of juries, particularly qualifications, because I think probably during the time of your active service at the bar there was a huge reform in juries, widening the scope of those who could serve to include judges and barristers, whereas before they were exempt. (Mr Butters: They were.) 1335 Have you detected any particular disadvantages to that approach? Has it created any difficulties? I realise taking into account we are a small jurisdiction, and clearly a Deemster here is in a different situation from the equivalent across, but noting that difference, have you any in- principle objections to widening the scope? 1340 Mr Butters: No, prison officers, for instance, very regularly sit on juries. What happens when there is a slightly contentious jury member, as a probation officer or police officer or something of that sort, then the judge is usually notified and then it is canvassed in open court with counsel, as to whether or not we have any specific objection to that individual sitting on the jury 1345 – and generally we don’t.

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Q185. The Clerk: It is known what the occupation of the juror is?

Mr Butters: Yes, but we do not know the actual identity of the juror. We are simply told that 1350 a juror will be sitting on the panel and they are a police officer.

The Clerk: Okay.

Q186. The Chairman: Well, that pretty well brings us to the end. It is left to me to thank you 1355 hugely for your contributions this afternoon. We have enjoyed it very much. Are there any closing remarks you want to make, that you feel that somehow we have omitted?

Mr Quinn: Thank you very much for inviting us here today, Mr Chairman. 1360 Mr Karran: You would go far in politics. (Laughter)

The Chairman: In that case, we close the session and thank you again.

1365 Mr Quinn and Mr Butters: Thank you.

The Committee adjourned at 4.14 p.m.

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4th March 2016 Evidence of Ms V Unsworth, Advocate, Mr J Stanley, Advocate and Ms D Jones, Advocate

99 100

S E L E C T C O M M I T T E E O F T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G E R – L H E H T I N V A A L

P R O C E E D I N G S D A A L T Y N

OPERATION OF THE JURY SYSTEM

HANSARD

Douglas, Friday, 4th March 2016

PP2016/0049 JURY, No. 3

All published Official Reports can be found on the Tynwald website:

www.tynwald.org.im/business/hansard

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2016 101 SELECT COMMITTEE, FRIDAY, 4th MARCH 2016

Members Present:

Chairman: Mr C R Robertshaw MHK Mr P Karran MHK Mr W M Malarkey MHK

Clerk: Mr R I S Phillips

Contents Procedural ...... 61 EVIDENCE OF Ms V Unsworth, Advocate, Mr J Stanley, Advocate, Ms D Jones, Advocate ...... 61 The Committee adjourned at 1.46 p.m...... 98

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Select Committee of Tynwald on the Operation of the Jury System

The Committee sat in public at 11.30 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR ROBERTSHAW in the Chair]

Procedural

The Chairman (Mr Robertshaw): Good morning. Welcome to this oral hearing of the Select Committee on the Operation of the Jury System. Can I welcome you, Ms Vicki Unsworth, Mr Jason Stanley, Ms Dawn Jones. Thank you very much for coming this morning. We very much appreciate it. 5 A bit of housekeeping before we get going: mobile phones, obviously, off. In the unlikely event of the fire alarm going off, please leave the building either the way you came or through that exit there. Could I also please remind everyone that because this is being recorded, I would be very grateful if we did not try to talk over each other during the exchange of views.

EVIDENCE OF Ms V Unsworth, Advocate, Mr J Stanley, Advocate, Ms D Jones, Advocate

10 Q187. The Chairman: Thank you again for coming this morning. I think you are already aware of the areas that we are exploring, so I will not rehearse those again. We will just go straight into it, if you would allow me to do so. The first area we will just cover are a few general points. The jury is essentially unchanged from a century ago, other than allowing women in 1980, I think – somewhere like that – and 15 then the adjustments to the size of the jury in October 1939 in anticipation of the expectation of the war. So what we are looking at here: is the jury still fit for purpose, having not been examined for such a long period? I think, during our various enquiries so far we have noticed that most jurisdictions in the British area have now examined the jury system, the latest being the Republic 20 of Ireland in 2013. We found their conclusions fascinating and interesting. The first point we would most welcome your thoughts on: in some jurisdictions the defendant can elect to be tried not by a jury but by a judge. Would you think that that concept would be something we should be looking at in any circumstances?

25 Ms Jones: Do you want me to go first?

The Chairman: Anybody!

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Ms Jones: I think we need to go back and acknowledge that the Isle of Man was very adventurous in 1989 and, under the Summary Jurisdiction Act, did away with the right, 30 automatically, of election by jury trial in either-way offences. If you want me to explain what any of this is as I go along, let me know. In England, it is still your absolute right, for example, if you are charged with theft, that you can elect trial by jury. In the Isle of Man, you cannot. The decision always lies with the Magistrates’ Court, Deputy High Bailiff or High Bailiff. They will make a decision based on things 35 like the amount involved, and they will take the prosecution's case at its highest and they will decide whether or not their jurisdiction is sufficient. If it is, then your right to jury trial is expunged. You do not have an automatic right in Isle of Man, for either-way offences, to say, ‘I want a jury trial.’ So if we are looking at it from this jurisdiction, I think that looking at different methods of 40 trial is something that needs to be looked at in that context. I personally feel that it is something that should be looked into. I think that there are certain cases where it may be advantageous for a defendant to have the option to look at a different mode of trial. But I would always be on the side that it is the defendant’s choice. It should not be something that is foisted upon them. For example, at the moment – and this is perhaps something that I can be attacked on but it is 45 something that I very much feel at the moment – the social perception of historical sex abuse cases has very much gone the way of the victim.

The Chairman: The pendulum has swung, hasn’t it?

50 Ms Jones: It has. It has swung completely that way. There is a perception that because of Yewtree, ‘I am not going to be’ – as in the jury – ‘the one to say that she is not telling the truth.’ They are particularly difficult cases because they are so historic and they are a type of case that could merit a different type of way of dealing with them, particularly in the current climate in relation to it. 55 So it is something that I think we could be brave about and that we could look at a different alternative, providing that it was always the defendant's choice, because I do not think you can ever get away from the principle that we as a society say that the fairest way to deal with any enquiry into criminal culpability is to be tried by your peers. Whether it be seven or 12 people, who know nothing about the case, who come to it with just their own human experiences, who 60 can assess the evidence and make a decision, I personally believe is the best system. But I can see that there might be cases whereby – very limited – a defendant could have the opportunity to be tried by a different form of trial process. And it is something that I think should be looked into. That is just one example I can think of. I can think of other examples, but it is something I 65 think should be on our minds, discussed and thought about.

The Chairman: Thank you.

Q188. Mr Karran: Can I just ask, Chairman? Could we have a hit list of the things that you 70 would think that should be – with your experience … Not now, but I will let you think about it. If you would circulate that to Members, I would be very pleased if you would Ms Jones.

Ms Jones: Yes, I would be happy to do that as to what I think are particularly out with the norm, that would be helpful to look at it. 75 Mr Karran: I can see the situation, as I say, particularly with these sex offence things … It is highly emotional, highly –

Ms Jones: Yes.

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80 Mr Karran: So maybe it does need to have that choice.

Ms Jones: Okay.

Q189. The Chairman: I hope you are like me, that whenever you are in some sort of meeting, 85 you are exchanging views and you leave, there is always something you wish you had said. Now, could I just make the point that if there is anything, as we go through this morning’s discussions that you feel, ‘I wish I had said that’ or ‘I want to contribute‘ – as Peter said – ‘some further evidence’, we would be delighted to hear from you after this meeting – if I can just make that general point. 90 Does anyone want to add anything onto Ms Jones' comments there or do they represent a …?

Mr Stanley: Well, I would agree with Mrs Jones. I think there are some areas where the subject matter is so emotive that it is very difficult for jury members to act in a dispassionate 95 way and just look at the evidence as evidence. So certainly, in terms of some of the sexual offences, in particular, it is very difficult for jury members to do that exercise.

The Chairman: Thank you.

100 Q190. The Clerk: In your experience, has it occurred that it has been difficult to empanel a jury – in a noteworthy case – because everybody has been reading the papers and people know about it? Is that a problem?

Mr Stanley: There are always … Sorry, after you, Dawn. 105 Ms Jones: There was a perception, I think, back in the 1990s that this was a major issue and it was looked into in relation to it. I think that the problem is very much reduced in this day and age; there is less publicity about a trial when it starts. We get very few cases now where the press are in from day one, constantly reporting. There are some obvious exceptions to that. 110 What tended to happen was that there was a perception in those cases where, if something went wrong in the jury process and we had to empanel another jury, doing that immediately would be difficult because it had only just been in the press. But I think that we have to trust the juries that are picked and sworn in to be good to their oath and to declare if they know anything about the case, and more importantly to stick to the 115 judge's ruling that anything they have heard about the case previously should be expunged from their minds, and that they only deal with it on the basis of the evidence. So whilst it was a problem in the 1990s, I do not have any experience of it in the last 15 years: that press coverage has caused a difficulty in then empanelling a jury.

120 Q191. The Chairman: Okay. If we can turn our thoughts for a few minutes to the concept of complex frauds and commercial trials. Have you any thoughts that you would like to share with us on that with regard to a make-up of a jury; the length of that trial – because it might very well end up being a long one – and the capacity and ability of a randomly selected jury to deal with such complex 125 issues? Would you share your thoughts with us on that, if you have any?

Ms Jones: Everyone keeps looking at me!

Mr Stanley: I will go first, if you like, Dawn. I do not mind. 130 Ms Jones: You go first this time and I will step in.

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The Chairman: Are you the first to jump in?

Mr Stanley: Absolutely. 135 In terms of the question that was raised about complex criminal offences or charges and lengthy trials, to my mind it is the function of the judge and the advocates to try and take the complexity out of those matters, so that in the vast majority of cases you can probably distil what might be viewed as a complex matter overall into probably some fairly straightforward issues. Usually most trials revolve around a key issue, such as dishonesty or intent or knowledge. 140 Those are things which juries are good at deciding. So although you might look at a particular offence on the statute book and think, ‘Oh, this is a horrendously complex area of law’, in reality, I think most of those cases come down to a fairly simple issue: was a person aware of a particular fact; did they have the necessarily dishonest intention when the circumstances arose. So I am not sure that it is necessary that, although you look at a complex offence on the 145 statute books, it necessarily translates into a complex trial that jury members could not understand.

Q192. The Chairman: Does anyone want to add anything to that?

150 Ms Jones: I think Mr Stanley is absolutely right there. I think that in a lot of cases, you look at the amount of paperwork and you think, ‘We are never going to get through this. How are we going to distil it all?’ But we are trained as advocates to do that, and the judge is very much on our toes to make sure we do that and that we make the case as jury-friendly as possible. I think that there have not been that many trials that have gone horrendously long – and to 155 me horrendously long is in excess of two months. That would be the sort of case where you might be thinking, ‘Well, this is unfair to the jury members. They have been at this for so long.’ But those are not the experience in the Isle of Man. I think that there might be a possibility, potentially, in the future where such a trial may happen, but they are going to be very, very few and far between, and they will mostly result, I 160 think, in multiple defendants appearing before the same jury, as opposed to two or three. So whilst on the face of it, to allow the ability for complex fraud trials to be dealt with in another way is attractive, I think that it is probably going to be on my hit list that I have been asked to think about anyway: the defendant having the right to say, ‘Because of x, y and z, I actually reject my right to jury trial and I am happy to be heard by another form of constitution.’ 165 But as I say, I want to make it very clear: always the defendant's choice with no fettering from the prosecution or the judge – completely the defendant’s choice.

The Chairman: Thank you, very much.

170 Mr Stanley: One thing, perhaps, if I could just add on that … There was a trial by jury working group back in about 2009, which I sat on together with Mr Earnshaw, MHK, Mr Braidwood, MHK, Mrs Christian, obviously, President of Tynwald and Mr Mark Solly, which looked in particular at the issue of whether or not juries might be dispensed with in certain types of trial such as long or complex financial offences, financial crimes. I think that – from recollection, 175 casting my mind back – we reported to the Council of Ministers on that. So that might be a matter that the Committee might wish to look into.

The Chairman: Thank you, very much. We have not read it so far, but we will most certainly do so before we complete our duties. 180 Ms Unsworth: If I can just clarify, I am here because I produced the data that you have, and that data was produced for the Criminal Justice Modernisation Project. I am not a criminal lawyer; however, I do do complex commercial litigation. So I echo the views of my colleagues in

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respect of what they have said. Some commercial cases can be fraught with paper, but even in a 185 civil context, when we are before the commercial court, it is our job – and we are specifically trained – to make that information easily understood, not just for the judge, but also in the criminal context for a jury. So even though we might have hundreds of thousands of pieces of paper and many, many transactions to go through – and particularly in the Isle of Man you may have complex structures 190 that you have to work your way through, so people can follow the trail of where the money has gone or what has happened – we are very well trained to do that. Although you need a licence to bring in counsel from England to assist – and clearly there are very specialist barristers in England who work in these areas, you would need a licence from the court to bring one in to appear. Quite often in a case like that it is my experience that – both on the civil side and the 195 criminal side – that guidance would be taken by the advocates in assisting with that process. So I agree with Mrs Jones that perhaps there are certain cases where a defendant might wish to elect not to be heard by a jury in a case that is complex or overly-emotional … It is not beyond the capabilities of the advocate or the judge to make that understandable by a jury.

200 Q193. The Chairman: That is very clear. Thank you very much – and unanimous. Moving on, one feature of the current system is the secrecy surrounding the deliberation of juries, obviously. What would be the problems with allowing controlled research into actual cases on the basis that any results were anonymised? This has been tentatively looked at by a number of jurisdictions trying to examine this. I do not want to dwell too much on the Irish 205 experience but they looked at it and shied away a little bit from it for perhaps obvious reasons, but we would be very pleased to hear your thoughts on that.

Ms Jones: I have already stated that I am a great admirer of the jury system and one of the principles of it is that it all happens behind closed doors. We trust these people to go into that 210 room, having taken the oath or affirmed, to do their job properly. My gut reaction is that, if jury members were aware that they might be under scrutiny at a later point, even covertly, even without being specifically directed, that that may play on their mind when they are deliberating. I just feel that it is something that would be an extra burden for them and might influence 215 how they react when they think, ‘Oh, somebody might come and challenge me at a later point as to why we gave this verdict or why we gave that verdict.’ It is a hard enough thing for a jury to walk back into that courtroom. For people who do not practice criminal law, I do not think they understand that when a jury walk back into it, they have either got to disappoint the complainant or disappoint the defendant. You can see in every 220 single trial that that burden is very heavy on their shoulders. They find it difficult to engage in eye contact with anybody, even though you may have been with that jury for two or three weeks and built a rapport. I do not mean in a talking way, a distance and a rapport within the courtroom. You can see that heavy burden. I think that it is just another burden to place upon them, because they would have to be told that, ‘Well, you might be scrutinised as to why you 225 made this decision.’ Imagine the thought that they have to say, ‘Well, actually we just did not like the complainant. We thought that she was not telling the truth’ or ‘We thought that the police had done an awful enquiry’ or that ‘We could not find a motive and that influenced us.’ All of those questions, and the answers to them, should be kept in the confines of that secure and locked jury room, as far as I am concerned. 230 Q194. The Chairman: Thank you. If we now could move on to the next section, which is the potential impact of social media. I was much amused, when I was reading the other day the Irish Commission’s investigation on juries, that they referred to – I suppose they would, being Irish – an English court case, Queen 235 v Young where there was a hullabaloo because – it was a murder case – the jury used a Ouija

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board to try to contact – have you heard about this? – (Mrs Jones: Yes.) the dead victim. I had to read it twice, because I thought it was windup, but it actually did happen. Excluding Ouija boards from our discussions, how serious is the threat to the integrity of the jury process with regard to social media, as it is expanding and exploding? 240 Please feel free to cast your eyes wide on this one. Please, your views will be welcome.

Ms Jones: Go on; you go first this time.

Mr Stanley: Well, my personal view is that social media is quite a serious threat, if you like, to 245 the process of justice. Juries are given a warning at the end of each day when they go home that they must not carry out any research, not to go to social media and look up about it or talk about it with other people. But, of course, there is just naturally a temptation for people to do that. So I think juries ought to be given very clear guidance certainly not to be looking at social media overnight while they are taking part in a trial. 250 Ms Jones: The judge’s directions in relation to this have developed over the last three years and I am sure you have had evidence of how they have developed, particularly because of this issue, because of social media. And I think that the committee that looks at judge's directions and recommendations, that the directions given by the judges are looked at on a constant basis. 255 I again agree in principle: I think that it is one of the potentially most dangerous areas that could impact on the right – or the fairness – of trials. But I suppose, as a society, we have to say that we trust the Manx public; that when they take that oath and they say that they will decide the case only on what they hear, and they are told on numerous occasions by the judge, ‘Do not speculate; do not go on and do your own research; do not look at social media; do not talk to 260 your family; tell your family you cannot talk about it; if you are going out tonight and somebody asks you what you have been doing, just tell them, “I cannot tell you; the man in the blue chair tells me I cannot talk about it”’, we have to trust the members of the public. But I think that it does need to be constantly under review and every night, every lunch break, ‘Remind you again: do not go on the internet; do not do your own research.’ 265 Q195. The Chairman: I suppose some of the concerns we must consider is the insular nature and small population that we have and therefore the immediacy of social media and its ability to recognise and identify people much more easily than, for example, if we were in a court case in the middle of England, we may know nobody in the court. It just seems to us a bit more 270 immediate and of a greater degree of concern (Ms Jones: It is.) linked with – sorry, if I can just say this – having smaller juries that have to be unanimous. And this is something that other jurisdictions have become really concerned about. But we have small juries, unanimous verdicts and a greater ability – subject to opinion – to more quickly identify a juror, and all we would have to do or somebody would have to do would 275 be to nobble one juror and you can affect an outcome.

Ms Jones: I think that I would like to go a step further back from that and say that one of the dangers, in my view, is the way the police use the social media. I think that the way that they use the social media, pre-trial, is something that should not be encouraged in any way, shape or 280 form. They comment on cases; they seem to pat themselves on the back on a regular occasion, prior to any decision being made in relation to a person's guilt or innocence. They seem to encourage comment from the public and they allow discussion on their forum which could be perceived as more authoritative than just the general postings on anybody else's own social site. 285 I think that we have all experienced cases where the social media discussion prior to trial could potentially affect the outcome of the trial, if somebody has read all that before they go

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into trial. I think that is the danger, not necessarily what is said whilst the trial process is going on. And that is something that I am very, very concerned about. I do not believe that it is the police’s job to do anything of that nature. They disagree with 290 me. They think it is a public … They describe it as it is, ‘just a new neighbourhood in our Island and we need to police it.’ That is fine; I get that. But should you really be putting something on about why somebody is charged; what they have been charged with and then allowing comment on it from the general public? To me, that is totally and utterly inappropriate.

295 The Chairman: Well, this is the first time we have heard this so far in all the hearings and we are very interested to examine that. Bill, did you want to …?

Q196. Mr Malarkey: You have brought in the nobbling of the jury. It is my favourite subject 300 at the moment, so I was going to come in on that one, but certainly what you have just said is quite interesting and something that I think we should take further note of.

Ms Jones: Some of … Most of it is very mundane and most of it is okay, but the occasional thing, you literally – well I do … I accept I am a defence lawyer, therefore, I am biased; therefore, 305 I see things in a way that the general public do not see it, perhaps, because of my job, but I do find some it very … I find some of the social media reporting after conviction as well to be offensive – very offensive –

310 Q197. The Chairman: By whom?

Ms Jones: By the police on their forums. I could even go as far as their media coverage. But that, again, I accept is my personal view of a process which to me should be sacrosanct. It should not be trivialised. It is a very important figure stone of our society. 315 The Clerk: After the verdict and sentence is a very different matter from beforehand, obviously.

Ms Jones: Oh, absolutely; I accept that. 320 The Clerk: The police are entitled, (Ms Jones: Yes.) once someone has been convicted, to –

Mr Karran: But there is an appeals system and that is the problem.

325 Ms Jones: Absolutely, and we have to protect the appeal system as well. (The Clerk: Yes.) It is not as bad as it used to be, but police officers slapping themselves on the back outside the courtroom and saying what a brilliant job they have done is not necessarily, I believe, how we as a society should behave on a conviction. I believe in decorum and that there is an appeal process to go through – even if there is no appeal. 330 But what we are talking about – and I am slightly side-tracked on a pet thing of mine. I go back to what we were talking about and it is the lead up to the trial and what goes on in the social media in the lead up to that trial which, of course, is then always accessible if a jury member chooses to do so, and that is the difficulty. I do not believe there is any evidence at all of trying to get at a jury member once they are 335 sworn in, because I come back to what I say: the jury are told, ‘Anybody try and get in touch with you; anybody make any approach to you, you tell the judge now, because I might be able to put it right. I might not be able to put it right at a later date.’ And I have seen that happen time and time again with jury members, taking that oath very seriously and reporting it and saying,

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‘Somebody tried to talk to me.’ ‘Somebody tried to do this.’ And nine times out of 10, it is 340 nothing, but they take that oath extremely seriously. They do. There is no evidence that I can see – or even a hint … The Manx people, when they are sworn in as juries, totally and utterly take it seriously and would report anything.

Q198. Mr Karran: Can you just clarify the point about the issue of the appeals? How long is 345 the appeals process? A month, is it?

Ms Jones: We have 28 days to lodge an appeal. Then the Staff of Government will try and hear that appeal within three months; normally sooner than that. If that appeal fails, then there is a much more lengthy process to go through to try and get 350 leave to go to the Privy Council. But if you take it on the Island, if no appeal has been lodged in 28 days, the conviction has been accepted or the sentence has been accepted and matters can move on. But normally if an appeal is lodged, I would have expected it to be heard within two months of lodgement, three at the outside.

355 Mr Stanley: Is it 28 days from the sentence as well – not necessarily conviction – or has that changed?

Ms Jones: I am still a great believer in I would rather be safe than sorry and I do it 28 days from conviction. But there is a very strong argument it is 28 days from sentence, but I would not 360 want to be the one who was told by the Staff of Government I had got it wrong.

Q199. The Chairman: Twenty eight days from conviction or sentencing?

Mr Stanley: You could be convicted by the jury on one day and then – 365 Ms Jones: And not sentenced for three or four weeks.

Mr Stanley: The judge will want to have pre-sentence reports and advanced notification of what the mitigating factors are, so the matter would be adjourned for a number of weeks and 370 would then come back before the judge for a sentencing.

The Chairman: So it is 28 days from the sentencing point then, isn’t it? Because –

Mr Stanley: I believe so, but I usually bow to Mrs Jones in terms of her superior knowledge in 375 jury trials.

Ms Jones: I think I would get away with it, but I like to be absolutely certain and I would normally try and lodge it within 28 days of conviction.

380 Ms Unsworth: On this point that we are discussing, can I bring to your attention a speech given by the Attorney General’s Office in England together with the Rt Hon. Dominic Grieve, QC in December 2013. That speech looked at the challenges for the jury, in particular the effects of social media and the advent of more information being available online. There are two issues realistically that you need to consider. You are looking at, specifically, 385 the jury and what the jury are able to view, what they are able to see and how that impacts on their decision-making process. There is then the secondary issue, which is the prejudice generally in the community to information going on social media and information being published elsewhere. If we look at the challenges just for the jury – so those seven good men and women of the 390 Isle of Man who have taken their civic duty seriously, they have sworn an oath and they are sat

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before the court – they are given a very stark warning, continuously throughout the trial, not just to not read the local press or look on social media, but it goes beyond that. They are not to do their own research into the offences; they are not to do their own digging around to see what is going on and what other cases have been around and what juries have found. 395 This speech that was given in December 2013 – which I can provide a copy to you – is very instructive and it looks at this in particular. There was a trial in the Crown Court in Luton in 2011 where a jury member actually did go about doing her own research. She was actually convicted for doing that. There are powers – and the Lord Chief Justice made some very hard-hitting comments – to deal with jurors who go beyond the scope of sitting in court, listening to the 400 evidence and making a finding purely on what they have heard. It is a role for other jury members to report if somebody comes in and says, ‘Well, I found on Facebook last night …’ or ‘I saw on Twitter somebody said this about them’. The other jury members have to report that. That is their duty. They must report it to the court. And, realistically, is it a bigger a problem in terms of social media, or is the bigger problem 405 the reporting issue and what people are saying? I echo my learned friend’s comments in respect of the police’s use of social media, in particular. There were a lot of prejudicial comments surrounding – on social media and various forums – when there was a big trial against Jenny Holt on the Island. There were lots of prejudicial media and commentary made on that. Now that did not impact on the jury so far as we are aware – because that has not been reported – but it did 410 prejudice Miss Holt’s reputation in the Isle of Man. So when you are looking at the advent of social media, it has got a much wider, harder-hitting implication than just what the jury … And the jury are controlled by the judge, whereas the population are not. So perhaps the bigger area is what is reported generally as opposed to the fear of somebody making a comment on a Facebook page. 415 Going on from that, if a jury member were to put something on Facebook or if they were to be nobbled by a comment on Facebook or Twitter, in fact, it would be far easier for a prosecution to be brought, because there is evidence of that. If we go back to the 1950s, when there was not social medical around and if we look at in particular some of the cases of the Kray Brothers, they were renowned for going around trying to nobble juries – and that was all 420 hearsay: ‘He said … She said …’, it was much harder, potentially, to convict somebody for trying to interfere with the jury service then than it is now because you can pull that data. Even once it has been deleted, experts can pull that data back on Facebook and Twitter. So the issue – which I do not believe is there in the Isle of Man – around nobbling juries, in particular, I do not believe it is there via social media. 425 If I can just bring you to the data that we have collated: between 2009 and 2013, there were only four cases in the Isle of Man where there was a hung jury. That means where the jury did not come back with a unanimous verdict.

Q200. The Clerk: Are you counting the Attorney General's case twice? 430 Ms Unsworth: Yes, twice, because it happened twice in his case. So in those four cases, between 2009 and 2013 – two of which were the same case – we have to look at, is there a problem of nobbling the jury? So if we are saying that only one jury member needs to be nobbled in order to get an acquittal, that is wrong. You would get a hung jury and 435 then it can go back for a retrial. They are not acquitted: it is a unanimous acquittal or it is a unanimous guilty. One person, if they come back and say, ‘We cannot reach a verdict’, there is no verdict. So if we are looking at the raw data available in the Isle of Man, is there a problem of nobbling the jury? No, there is not because we have only had four cases. If we look – I have got 440 the General Gaol cases’ statistics for three years, because that is all I could get hold of… So between 2011, 2012, 2013, there were 245 jury trials. In that period of those three years, there were two hung juries. Both of those hung juries happened to be the Attorney General’s case.

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That is 0.03% of all cases tried by jury where a unanimous verdict, whether a not guilty or a guilty was delivered. Therefore, the raw data shows there actually does not appear to be a 445 problem in terms of juries not being able to reach a unanimous verdict or this perceived problem of jury nobbling.

Ms Jones: Can I just ask, Vicki, presumably those include those that pleaded out?

450 Ms Unsworth: No, these are the ones that actually went to trial.

Ms Jones: Actually went to trial?

Ms Unsworth: Yes. 455 Mr Malarkey: Well, we are straying in here, aren’t we?

The Chairman: Let us just hold the social media thing for a little bit longer because you have taken us into an area that we have not examined. 460 Mr Stanley: Could I just make a little comment on what Mrs Unsworth was just saying there. You can use the statistics of hung juries to suggest that in any of those cases there was jury nobbling. I do not think that is what Mrs Unsworth was at all suggesting. I think she was indicating – and this is just to make it clear – that the fact that if you did have a case where one 465 jury member was nobbled, so to speak, that does not get you an acquittal. It gets you a hung jury and then you get a retrial with a different jury.

Q201. Mr Malarkey: So two retrials and you are probably going to get the case thrown out, which seems to be the par, from what I am hearing anyway. 470 Ms Jones: That is the prosecutor’s decision. The prosecutor, technically, can go on and on and on and on, but in practical principles, two and they take the view that, ‘I have tried twice to convince the jury. If I cannot convince a jury after two attempts, I am not carrying on.’

475 Q202. Mr Malarkey: Sticking with the media bit at the moment, I understand – and we have had the Deemsters in here – that they are told time and time again not to look at it; not to be influenced. But if one person in that jury decided that they could not decide whether this person was guilty or not, and decides to go online and Google and comes up with the fact he is a bit of a bad boy or girl and there is a bit of a history there so that, ‘They must be guilty’, and comes back 480 with that conclusion, that is one member of seven – right – who could, because of that bit of Googling … Keeps their mouth shut; does not mention it to other jurors, because they know they are going to get into a lot of trouble, that could then make that a hung jury. It would be a six/one. It would be thrown back out again and there would be a retrial. What we have to look at as the Committee here – this is the first Committee that has looked 485 into this for many, many years – we have got to future-proof this. Now, we know how fast social media is progressing, and going forward how more intense some of the crimes are becoming; how some of the stuff is being hidden through the Internet, etc. Going forward, are going to be more and more big-money crimes on this Island, as far as I am concerned. I have got a quote here – it is not from the Island but it was something that came through, a 490 letter from Mr Montgomerie … It was a quote from the Criminal Justice Act.

In an age of highly organised crime, there is evidence of bribery, intimidation, nobbling of jurors, importing cases involving criminals…

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– big fish. This is going to creep to the Isle of Man eventually.

Ms Unsworth: That quote that Deemster Montgomerie sent you though is from the Hansard of the Criminal Justice Bill (Mr Malarkey: That is right.) from May 1967. It is not a recent quote. 495 Mr Malarkey: But the point being is they were worrying about it then – right? Here we are in 2016 and technology and everything else has moved much further. We are talking really big money people in crimes now.

500 Ms Jones: But can I just ask – not a question – make a statement, which I struggle with? I struggle with majority verdicts for exactly that reason: that there is an ability to get two members of the jury – just two – and you can have a definitive verdict, whether that be guilty or not guilty; whereas when you have unanimous verdicts all you are able to achieve, if that is … Okay. If we accept the premise that there are a group of criminals on the Isle of Man – or 505 perhaps more importantly a group of criminals who are charged with offences in the Isle of Man who are a high-end Manchester gang – right? They are high-end and they are charged over here, whether it be money laundering, drugs, whatever. Therefore, if we accept the possibility that they have the manpower and the wherewithal to get at jury members, then if all they have to do is get at two to then get a majority verdict, that is a lot easier for them isn’t it, than trying to get 510 a hung jury?

Q203. The Clerk: I think there is a misunderstanding, with respect, because certainly in the English system, if you have got 10 people who say you are guilty and two are hanging out because they – for whatever reason: pressure or otherwise or genuine – you are still going to get 515 guilty.

Ms Jones: Yes, that is what I am saying.

The Clerk: So I am not quite sure if you have understood quite the point – 520 Ms Jones: I am looking at it from the other point of view. I am doing it on the basis that these people are guilty and they are going to try and convince … get at a jury –

The Clerk: But they need three people, not two. 525 Ms Jones: Yes, three, in England, whereas here they would have to get at all seven.

Mr Malarkey: No.

530 The Clerk: No, one.

Ms Jones: But that would be a hung jury and they would have to repeat it again in another trial.

535 Q204. The Clerk: You can kick for goal or you can try and score and try. Sometimes you can win a match by kicking a drop goal, if you see what I mean. You can go for a retrial and another retrial on the confident expectation that instead of getting a conviction you get another chance at being acquitted, and because the prosecution has to convict you at least the second time or they will go away and drop it – as a practical assumption, that is a safe one, isn’t it? 540 Ms Jones: But I am failing to understand the increase or decrease in risk, whether you have majority or unanimous. That is what I am understanding: the decrease or increase in risk.

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Q205. The Clerk: Because the reason for introduction of the majority verdicts in England was largely to deal with organised crime in the 1950s and 1960s, of people who were fiddling with 545 juries for this reason, and it was a defence against that. It was something that may have worked, may not have worked, but it certainly was introduced in large part – or possibly even totally – because of the perceived threat of organised crime.

Ms Jones: But do you not think it was also introduced because of the fact that the right to 550 trial in England is still so extensive? If I am accused of stealing a £2.50 magazine from the Co-op, I can elect trial, whereas over here I cannot. Our jury trials are much more restrictive after the 1989 Act.

Q206. The Clerk: I have not read anything to indicate that is the case. I have to say, I am not 555 sure. You cannot prove a negative (Ms Jones: No, you cannot.) but what I have read has largely been that it was a response to a perceived – a very definite threat – from organised crime, largely in London, but not exclusively.

Ms Unsworth: But it was a response to a perceived threat of organised crime. In the Isle of 560 Man, we have got the data that suggests that in fact there is no such threat. We have evidence for a period between 2009 and today that there have been four hung juries. Therefore, do we not have the evidence that in the Isle of Man certainly it is not an issue, because if it was an issue there would be a greater number of hung juries?

565 Q207. The Clerk: I think the thought is, perhaps, that it has not happened yet, but it might. Should you legislate for it –

Ms Unsworth: But do we not then put our trust in the Manx public to abide by their oath and report the fact that they have been approached or nobbled? 570 Mr Malarkey: Well, you do not know that.

Ms Unsworth: Because we are relying upon the Manx public to do a civic duty and thus far we have not had a problem which would indicate that maybe the Manx public should be given a 575 little bit more credit for being able to stand on their own two feet and report these problems.

Q208. The Clerk: Could you perhaps address the question a different way and say is there a rooted objection to majority verdicts being introduced on the Isle of Man, as in England, if you had a 12-man jury system? 580 Ms Unsworth: Personally, I think the unanimous verdict is sacrosanct to our judicial system. It is my personal view. I have no bias. I am not a criminal practitioner. If I was put on trial tomorrow – which, heaven forbid, it will not happen; I can assure you I have not done anything naughty – I would want to know that there has to be a unanimous verdict to convict me. 585 I think the Isle of Man is unique in its approach and I think it is the right approach, because for a criminal conviction you have to find beyond all reasonable doubt that the person is guilty. Now my personal view is, if you have a jury of 12 men and 10 of them say you are guilty and two of them say you are not guilty, that is not beyond all reasonable doubt, because two people are doubtful of the fact that you have committed the crime. 590 Q209. The Chairman: But the corollary of that, surely, is that – and we are straying, because I do want to come back to social media before we leave it – in our current system, you have got seven people who say you are guilty and if you had a larger jury, you have got 10 people saying you are guilty. How is that, in any way, weaker?

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595 Ms Jones: Can I? I think that, again – as I always do go back to my principles – my principles are that a criminal justice system is fair to both the prosecution and the defence. You can either start any discussion on criminal law this way – which is my way: I do not want to see an innocent man go to prison. (Mr Karran: Hear, hear.) Or you can start it on another basis: that I want people who 600 have committed criminal offences to go to prison. My belief is the first is the correct one: that I do not want to see an innocent person go to prison. So if you start every discussion with that at the back of your mind, then that affects your views, in my view. I agree with Ms Unsworth that unanimous verdicts give clarity to both the convicted and the acquitted in that they have had seven people good and true say, ‘You are not guilty’ or ‘You are 605 guilty’. There was no doubt; that they heard the evidence and they have convicted. Once you start bringing in majority verdicts, you are taking away from that. You are taking away from this certainty and absoluteness of the jury system. Whether you decide to have juries of 12 or seven – I think seven, personally, is a good number – but ultimately unanimous verdicts work, I think. 610 Q210. Mr Malarkey: Can I just take you back on some of things that have been said, especially Miss Unsworth saying that there has only been four in the last three years where they have not been able to make a decision –

615 Ms Unsworth: Four since 2009.

Q211. Mr Malarkey: 2009. You have got absolutely no proof that any of them was not because one member of the jury was nobbled, just as much as I do not have the evidence – 620 Ms Unsworth: Nor should we.

Ms Jones: Nor should we.

625 Mr Malarkey: – in the other direction. No.

Ms Jones: What I can tell you is –

Q212. Mr Malarkey: So the point being, we do not know, and if somebody was being 630 nobbled – again, reading an article – it is highly unlikely that somebody is going to come up and say afterwards, ‘Well, I was nobbled’, because they are still going to fear for their family afterwards. (Ms Jones: Absolutely.) That is a very strong possibility. So from an evidence point of view, just like you cannot prove one way, we cannot prove the other way. Can I also go back to the 12 versus seven and the majority verdicts. I go back to nobbling 635 again. It is quite clear, if you want to get a trial thrown out, you nobble one person in a seven person jury – right – and it comes as a six/one; the trial goes to retrial. In a 12-person jury, where you can have a 10/2 majority, you would actually have to nobble three. So it would be, on an Island like this, extremely difficult to nobble three members of the jury and them all keep their mouth shut and fear going forward. Once again, trying to future-proof what could happen 640 in high-net-worth, big trials where if there were only seven people on the jury, one person could very simply be nobbled on two separate trials, and the trial would end up going out of the window.

Ms Jones: Can I just say that in the 30 years I have practiced criminal law in the Isle of Man, I 645 have had two hung juries, both of which have gone to retrial, both of which have been acquitted. So you need to be aware …

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The difficulty we have is that data has not been kept in the 1980s and 1990s and the early 2000s, so we do not have that raw data. We have to go on people's recollections and reminiscence. I cannot even remember what they were other than to tell you, in nearly 30 years 650 of being a qualified advocate, principally dealing with criminal law, two hung juries followed by retrials and acquittals is a very small percentage of what trials I have done over those years.

The Chairman: Peter, did you have a point you wanted to make?

655 Q213. Mr Karran: Yes, I just wanted to ask … Obviously being around for the last 35 years plus in politics, one of the things we have been very keen on is we had a policy of not prosecuting departments of Government who broke the law because they were part of Government – it is to try and make sure we depoliticise stuff. Are there any criteria for any sort of change, as far as if there was a terrorist offence? Would 660 a terrorist offence be classed on the same basis as far as jury selection is concerned? And could I just ask whether you would consider – especially with your experience – where you have got two hung juries – whilst I do not want us lot having any control over the judicial system, which is quite famously remembered in the Home Affairs Department before my demise in the early 1990s – do we need some sort of criteria where, if you have got two hung juries, that 665 right to a third jury court service could be done by a judge? I am deeply concerned about this, but I maybe if you can think about that.

Ms Jones: It is so difficult because it is not actually the law that there are only two trials and then the stumps are pulled up. It is a matter of practice that that is what those who prosecute 670 do. But they have the right, should they choose to, to say, ‘Well, I think something went a bit wrong here and we are going to start from scratch and I am going to ask for a third trial.’ That could occur.

Q214. Mr Karran: So, consequently the prosecution, if they felt there could have been some 675 collusion on that basis, (Ms Jones: Yes.) they could go for that. There is organised crime. It used to one of the problems with a certain society on the Island. With the distress sign, things would be affected.

Ms Jones: But those decisions are made on economic decisions. I am not a prosecutor – 680 although I trained at the Prosecutions, I have not been in the Prosecution Department since 1987. So from that point of view, I can only go and cast my mind back and what I know about decisions that have been made to not go for a third trial is that it is on a cost basis and also, ‘Well we have given our best shot and our best shot, twice, was not good enough.’ Then they decide not to prosecute again which is a very well-known principle in relation to making 685 decisions about prosecution. Terrorism is another area completely, as to how you would deal with any prosecution under the Terrorism Act.

Q215. Mr Karran: Are there different criteria for terrorism? 690 Ms Jones: You are asking me to scratch my memory on something that I was not asked to come and talk about.

Mr Karran: So there will be no difference between ordinary crime – 695 Ms Jones: I know there are terrorism acts that can be put into place and provisions that can be put into place. I think – but I am not the expert on this area – that there is a provision in relation to a serious terrorist attack whereby the normal rules are modified, but whether or not

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that is to a full trial, I cannot honestly tell you, and I would not want to say anything on a Select 700 Committee at this stage.

The Chairman: Thanks, Peter –

Q216. Mr Karran: Just further on that … So the issue is that we have got to try and find a way 705 of not interfering in the judicial system. That is something that some of us have fought for for the last 30 years. But are there any criteria that you feel – with your experience – where you have got two hung juries, as far as an issue, where there is a perception – a very good perception – that somebody is being nobbled, (Ms Jones: No.) that we should change that criteria, under any 710 circumstances?

Ms Jones: I can only say to you that my experience of dealing with juries – I cannot tell you how many over the years – is just how seriously they take it and how engaged they are and how it is an important thing for them to make sure they get it as right as they can. They take that 715 burden very seriously. And it is a burden. It is not a joyous thing to do, is it: to decide somebody’s fate? From that point of view, I can give you no thought – even a glimmer – of any case I have ever dealt where I have been worried that the jury came up with a verdict because somebody has been got at in any way, shape or form.

720 Q217. Mr Malarkey: Moving on from that slightly – again some information that came along – changes to the Criminal Procedure and Investigation Act 1996 provided that where a person had been acquitted of an offence, and someone else was later convicted of interference or intimidation of a jury or a witness, then an acquittal can be set aside by a High Court Judge and a retrial ordered. Do we have the same on the Isle of Man? 725 Ms Jones: Ooh! It was in a Bill not long ago – whether it ever got through. That is obviously the Lawrence case, the classic case of what we are looking at to remedy a misjustice. Can I get back to you on that?

730 Mr Malarkey: That is quite an important one. We should be self-satisfied, a little bit.

Ms Jones: In principle, I think everybody would agree that we should have legislation that, if it turned out that an acquittal was as a result of a criminal activity, then it should be quashed and a retrial ordered. And of course we have the provision now where, even if there has been an 735 acquittal, but there is very strong evidence that was not available at the time, we can bring that man or person back for trial. So if it is not, then it should be. But can I get back to you?

Q218. Mr Karran: Is it not the case that the AG has got a right to review not just sentencing, but also if something comes up, that he has a right to come back? 740 Ms Jones: Again, I will come back to you with the i’s dotted and the t’s crossed, in relation to that. The Attorney General has a right to appeal on sentence but not on acquittal. He does not have any right on acquittal.

745 The Chairman: We have been on a fascinating journey.

Ms Jones: Sorry – I know – but we need to get back to where we were.

Q219. The Chairman: But we have got to go back to social media, for a minute. Because I had 750 concentrated, personally, on the issue of the potential – real or imaginary – impact on jury

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members from social media, once they got past their oath. But you open this issue up quite clearly about what could or may or is happening beforehand. I would just like to examine that a little bit more, because – I will be frank – I had not focused on it. But you talked about the police – and while the conversation has been going on, I have been 755 mulling this over. Should we be asking a jury member, at the point of oath or before, had they actually enquired about somebody prior to the case on social media?

Ms Jones: We do –

760 The Chairman: Because it had not crossed my mind, that.

Ms Jones: We do in a certain way. We ask whether or not they know anything about the case or any of the people involved in the case. But, yes, I think that it is an area where, perhaps, the directions need to be looked at. 765 It is so difficult, isn’t it? We live in this modern age, whether we like it or not – I personally do not like it, as far as social medial is concerned. I am having a whale of a time otherwise, but … (Laughter) But is it any different than the 1950s where everybody went to the football, or drank at the same pubs or everybody met up together? Is it really any different? ‘Ooh! Did you hear that Johnny was charged?’ ‘Ooh! He has always been a bad one, him.’ Is it really any different 770 than that sort of exchange of communal, social chat?

The Chairman: Yes, I think it is.

Ms Jones: I think it is, because it is always there and can always be gone back to and can be … 775 The thing I do not like about it is you can be nasty to somebody on social media; you do not have to face them and you can say whatever you think without ever the consequences arising. I think that is the danger of social media isn’t it? That you can just put anything out. Yes, I do think that it is important but if we say, ‘Have you read anything about this case?’ then that includes, ‘He was arrested’, ‘He was charged’, ‘He was committed’, ‘He got bail last week’. And that would 780 then be … We would have to be quite specific wouldn’t we? We would have to say, ‘Other than what is allowed.’ Well, what is allowed? And that is why I think the responsibility perhaps needs to be on those who run the justice system, to try and ensure that this type of commentary is not taking place before trial. And it is difficult, because we do not want to rule out people sitting on juries – which we will 785 come to later, about the need to expand the people who are able to sit on juries, rather than contract. So it would need to be very, very carefully worded and I do not know how you would do that.

Q220. The Chairman: It was a, sort of, rhetorical question: is it any different? I am personally 790 of the view that it is very, very different, because the ability to … Completely unknown to you, you can focus in on something in a way that was unimaginable 10, 15, 20 years ago.

Ms Jones: It is not like Johnny saying, after a few pints down the rugby club, ‘I heard that so and so was arrested’, is it? Then we all know, by Friday it is all around Port Erin. 795 Q221. Mr Malarkey: There is a considerable difference. (Ms Jones: Yes.) If somebody says, ‘Johnny has been into trouble’, then you obviously know Johnny so you should not be sitting on the jury. But the difference being, if that gentleman sitting over there, who I have never known, has suddenly got a name – 800 Ms Jones: Yes, has been on the police forum.

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Mr Malarkey: I could probably give him his history by lunchtime just by going on Google. (Ms Jones: Yes.) And that is the frightening part of it. 805 Ms Jones: If you wanted to you could – having been summonsed to go to the jury on 13th November this year – at some point you can go on the Isle of Man forum or Manx forums and you could probably work out whose trial it was and you could probably look at all the comments that the police have made – and various members of the public – about this case and that case 810 and what they think, if you chose to do so.

Mr Malarkey: Yes, you do not need to go on the forums because you can go onto the courts; find out what trials are coming up; what day you are going in and just Google who the defendant is. 815 Ms Jones: I would come back to what –

Mr Malarkey: That is how quick and easy it can be done and within half an hour you could know a lot about his history and everything before you get to trial. 820 Q222. The Chairman: Okay. Well, let us close it – this section of social medial – with one final question and that is that a number of jurisdictions have, by their actions, brought Acts in specifically targeting this. Do you think we should deliberate on that or are you –

825 Ms Jones: Absolutely, 100%.

The Chairman: Yes, thank you. Fine.

Ms Jones: In more context than the jury. We do not have sufficient legislation to monitor 830 trolls. We do not have sufficient legislation to deal with people who habitually make comments on social media which are upsetting. We are trying to adapt legislation to fit it whereas if we were brave and we said, ‘Let us get together; let us sit down and let us create a Criminal Act which makes these offences specifically criminal’. We are trying to use the Harassment Act; we are trying to use the Telecommunication Act, 835 which are not fit for purpose in relation to the type of bullying that is going on on social media. We need to sit and do it, and we need to sit and do it urgently, because there are people being bullied, upset, mental health issues, all centring around something that the police do not have the power to legislate properly and we need to get on with it quickly.

840 Q223. The Chairman: Well, I am glad I asked you that question. (Laughter) Thank you. So we have toyed with the issue about size of jury. And I think because we have touched on it already, we will link size of jury and majority verdicts together. Your response in this area has been quite passionate and determined, but we are flying in the face, if you like, of a whole range of other jurisdictions who are quite comfortable with majority 845 verdicts and bigger and bigger juries. Why this passion for where we are now? Scotland lives with 15 jurors and a crude majority.

Ms Jones: But Scotland, I admire for the ‘not proven’. I like a not proven verdict. I would love to have that. I would be quite happy with that. 850 But each jurisdiction is different isn’t it? And it is uniquely Manx, almost, now, isn’t it?

The Chairman: Yes, but it is Manx by accident, because it was just something that happened in 1939 to get around the fact that there were no lads here – because it was male in those days –

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855 Ms Jones: But if you go back to – I am really, really now scratching my head, but my understanding was that we had a seven person jury: it was the Deemster and the six sheadings. We started off from … The juries in the Isle of Man were the Deemster and six members of the public and they were the six sheadings. They sat and decided the fate of anybody who was charged with a criminal offence in this jurisdiction. 860 Why do we fence the court? We fence the court, because many, many hundreds of years ago at Tynwald you fenced the court – was it with a blown pig’s bladder on a stick? Do not quote me on that, but that is my recollection of my history lessons in relation to Manx constitutional law. So there is the fact that there is this connection. I appreciate that then we became very English, very anglicised, as we progressed through. But the actually nature and the origin of the jury trial 865 stems from that: the six sheadings and the Deemster.

Q224. The Clerk: And yet there is scope for 12 people on a jury (Ms Jones: Yes.) in murder and serious cases. Is there any reason, do you think, to expand the scope of serious cases to include 12 people? And, if seven people – I am sorry to give you more than one question at a 870 time, whereas that is not a good idea – are so good, why do you have the safeguard of 12 in murder and serious cases?

Ms Jones: I do not know the answer, historically, to that question –

875 Q225. The Clerk: Well, we live now. What is the practical reason now?

Ms Jones: The practical reason is because it is perceived as so serious that the only sentence is life. Therefore, from that point of view, if you are going to be taking somebody's life away … You have to remember that it is not that long ago we did away with the death penalty, and 880 we have never really modernised our law much in the last 30 years, to be honest with you – and I will hopefully be able to touch on that as a way forward in other areas of the criminal law before I leave. I have seen somebody sentenced to death in my career – and that is not a thing I am proud to say: that we did do that within my professional career; that somebody was sentenced to death in this jurisdiction. So we never really caught up with the fact that we 885 abolished the death penalty, so for murder you would be sentenced to death. Hence the fact that my belief was that is why we had 12 people. If you are asking me should that be extended, it is so difficult. Personally, anything that involves a loss of life, whether or not that is charged with an offence capable of life or not … I think, where there is a case where loss of life is part of the factual matrix, then potentially. 890 Q226. The Clerk: Should it be extended to all crimes that carry the maximum sentence of life imprisonment, since it is not just murder, is it?

Ms Jones: No. I have thought long and hard about rape. I thought very long and hard about 895 whether or not rape cases – I would hate to say, it is one of my specialities. But again, the vast majority of rape cases are issues off consent: boyfriend/girlfriend or acquaintances meeting up, alcohol normally involved. Did she or didn’t she consent? Now, do they need juries of 12? With all the cost implications that brings – and it is a massive cost implication. In my 30 years, I have represented one person who I would describe as what 900 most members of the public would perceive as a rape, which is a violent dragging down a lane, and gagged and viciously raped. I have dealt with one in 30 years. The vast majority are issues of consent.

The Clerk: But if convicted, they will go to prison. If convicted they will be on a list for life. 905 Their lives are blighted.

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Ms Jones: Yes, I agree. If I – no I will not say that. Rape is a serious allegation. Then you look at GBH with intent and should all cases of GBH with intent be 12-people juries? Because, again you are potentially looking at very lengthy 910 sentences if you are convicted of grievous bodily harm with intent. There is such a wide spectrum that is dealt with in each of these types of offences, you cannot say, for example, if you are likely to receive more than five years. I do not know until I have had trial! I do not know what is going to come out; how the evidence is going to pan out. But it is a tricky, tricky, tricky area. 915 The Clerk: Sorry, to interrupt. You do know, on the basis of what the prosecution’s case will be. If they prove everything –

Ms Jones: Worst case scenario. 920 The Clerk: – the worst case, from your point of view is, ‘We are going to get more than five …’ You know what the tariff will be (Ms Jones: Yes.) and the judge will know too. So you can actually say, this is a very, very serious case, potentially – whatever it pans out as.

925 Ms Jones: And historical abuse cases, the sentences there are getting very high indeed now.

Q227. The Clerk: One of the strange things here is that we still have the 12 in serious cases and yet you are very clear that seven is good enough.

930 Ms Jones: I can only go on my experience. I can only say to you how I feel. I cannot say to you how I would have felt if I had always had a 12 person jury. I suppose, from a defence point of view, you would say, ‘Well it is more people to convince’ but it is more people to convince both ways, isn’t it?

935 Q228. The Clerk: Which would you …? Say you were advising somebody who is facing life in prison. Would they be better off – this is kind of an impossible question in one way, but really this is what we are talking about – with seven people, unanimous or 12 people, ten of whom after the usual safeguards of delay, might convict them? Which is better for them?

940 Ms Jones: I would go for seven, if I had the choice. Seven unanimous; unanimous all the way along down the line. All the time. If I had the choice to try and – not influence but – to advise a client and they had the choice: either a 12-man jury but the prosecution can get a majority or a seven person jury and unanimous, I would go for seven and unanimous.

945 Q229. The Clerk: Would you get rid of the 12-man jury? I know it is unanimous, but would you get rid of it?

Ms Jones: I have not really thought about it, because it has happened so rarely. I have tried to argue a 12-man jury for serious offences because those are my client’s instructions – because 950 there is the ability to do it in the law. But I suppose from a point of view it is marking that murder is the most serious offence – we have obviously never had a treason trial. But murder is the most serious thing that you can be charged with and therefore 12 men or 12 persons should sit. I suppose it gives it some gravitas. Whether or not you extend that gravitas to other very serious allegations is another matter. 955 Q230. Mr Malarkey: We are having all these discussions about seven persons or 12 persons, there are lots of numbers in between. Is there anything that would be ... like 10 with a nine/one

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majority? We keep discussing this: seven or 12? Lots of other jurisdictions … Some use 10; some use 12; some use 15. 960 Ms Jones: Just do not make it 13! (Laughter)

Q231. Mr Malarkey: But the majority issue is something … I think we are getting the feedback that you do not like majority verdicts. But something like a 10-person jury where a 965 nine/one would be acceptable, (a) I think would overcome the nobbling side of it, because you would have to nobble two, not just one member of the jury, and you are reducing down your size from 12 to 10.

Ms Jones: In principle, there is no difficulty with that. How you arrive at the figure of your 970 numbers of juries is –

Mr Malarkey: Seven is very low.

Ms Jones: I can only go on my understanding as to how it came about. 975 The Chairman: Okay. Well, time is moving on.

Ms Jones: It is.

980 Mr Stanley: Could I just make a couple of comments? I have tried to interject but without talking over, and unsuccessfully. (Laughter) So perhaps if I could make a couple of comments. I personally would have great concerns about having majority verdicts on juries on a principle, because the burden of proof is – as Miss Unsworth said – to prove the case ‘beyond reasonable doubt’. That is the burden for the prosecution. The way that it is explained to a jury 985 is that they are told that they must be ‘sure’. That is what it is really about. Are they sure that the person is guilty? Now, if you have a majority verdict, what you are saying is, ‘Well some of you cannot be sure about it. That is okay.’ And that causes me great concerns, because then we are at the position of saying, ‘Well what percentage of sure is acceptable in order to convict a person of an offence?’ If it is ten out of 12, okay, about 83% sure. I have great concerns about 990 that. If a person is guilty and the test is to make sure that, to satisfy a jury that they are sure that the person is guilty, then they should all be sure. If they are not all sure then, to my mind, it shows an element of doubt. Now, if the ability to have majority verdicts was brought in in England to cover the possibility of attempts to nobble a jury, I am not sure that we have the same issues over here. The type of 995 people who are likely to try to nobble a jury must be a minuscule fraction, I would suggest, of the population as a whole. Now, in England, that will equate to a reasonable number of actual people who might try and nobble a jury. In a small jurisdiction such as the Isle of Man, I would be very surprised if we had any – and if we did, many – of the type of people that would in fact try to nobble a jury. So I do not think that we have the same issues that they have in England. In 1000 England you may have 0.001% of the population who might be inclined to do that. Over here, that translates to zero. I think looking at England and looking at the Isle of Man, you are looking at chalk and cheese. We do not have the same problems that they have in England. Now, I think in my career I have had one hung jury, and my experience on that one was that it did not then go onto a second trial because the prosecution looked at the evidence as it had 1005 actually come out at the trial and they decided that, ‘Well, actually, having seen the witnesses; having heard all the evidence, it looks a little bit different to how it looked on paper at the start of the case.’ They then decided, ‘What is in the best interests of the public? Is it in the best interests of the public to go ahead with a second trial or is it in the best interests to make the decision not to go ahead with the further trial?’

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1010 Now, if you had a situation where there was a nobbling of a jury, so that you got a hung jury, the prosecutor would look at that and say, ‘Right, we have had the benefit now of seeing all these witnesses; we have heard the evidence; we have seen how it has all come out. We cannot understand how we got a hung jury on this.’ If they suspected that there was nobbling of the jury, no doubt the prosecution would then look to have a further trial. If there were a second 1015 hung jury, they would do the same process again, because they look at it and decide what is in the public interest: to go ahead with a further trial or not. My view is that, if there were a feeling at that stage that yes there is jury nobbling going on here, then rather than look to get rid of the protection that we have by having unanimous juries, the better way to address that would be to have ways in which you can protect the jury 1020 members. So sequestering of juries: they cannot go home at the end of the trial; they go to a hotel; they are kept away from social media; their identities are protected. Things such as that would be a far better way, in my view, of protecting against the potential of nobbling of juries.

Mr Malarkey: I think protecting the jury is one thing, but protecting the juror’s family is 1025 something totally different.

Mr Stanley: But if you protect the identity of the jury members, then that assists to protect their family. It is to prevent the jury members being nobbled. So if they are kept incommunicado, if you had a … If it is a terrorist offence or something involving, perhaps, the 1030 worst drug gang in the UK or something of that sort, I am sure it must be possible to put in place provisions that would protect the jury and that is a much better way of –

The Clerk: Well, okay, but their names are announced to the court.

1035 Mr Stanley: They are, but we could change that system.

The Clerk: Okay.

Q232. The Chairman: That is fine. 1040 I would be interested to hear how you guys feel about peremptory challenges.

Ms Jones: It seems to work.

The Chairman: Seems to work? Ooh! You will have to explain that. (Laughter) 1045 The Clerk: What are they for? What is the purpose of them?

Ms Jones: I get three challenges as the defence, without any reason whatsoever. So I can look at somebody who has been called – number seven – and decide, for no reason at all, I do not like 1050 the look of him or her and say ‘challenged’ and I am never, ever questioned on it. I tend to use them extremely rarely. The way that I deal with it – and most practising advocates for the defence do – is that we get the jury list on the morning of the trial, about half an hour before we are due in. So unless you have got a corrupt member of the court who is willing to give it to a defendant ahead of your trial, your potential nobbling has got to result of 1055 me and him or her going through the list at 9.30 a.m. on Monday morning ahead of trial starting at 10.15 a.m. I will go through that list with my client and if there is, for example, a matrimonial client of mine or an old school friend or a next-door neighbour of mine, I will declare them to the prosecution and they will use their challenges to get rid of … Similarly, if my client says, ‘Actually, 1060 I went to school with them’ or ‘They lived down the road from me’ or ‘We play on the same football team –

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Q233. The Chairman: Excuse me, can I just stop you? That is reasoned challenges. We are talking about without reason.

1065 Ms Jones: Yes, but the way that I am telling, on a practical point, how we deal with jury exemptions at this stage is that there is a discussion between the defence and prosecution, which results in the prosecution using their unlimited challenges to get rid of anybody that I have declared to have an interest in, or my client has. My three non-reasons are there if I just do not feel that they are the right sort of person to sit 1070 on this trial. I have learned over the years that you cannot judge a book by its cover.

The Chairman: Okay, well let us turn it the other way –

Ms Jones: That is why I personally do not use them very often. But if I saw somebody who – 1075 and I hate to say it – looked a bit doddery, I might just think, ‘Oh, I will just use one of my challenges.’

Q234. The Chairman: Okay. I am sorry I interrupted you there. But how do you feel about peremptory challenges, unlimited, on the prosecution side? 1080 Ms Jones: I do not particularly like it.

The Chairman: Fine. Thank you. Any other comment? 1085 Ms Jones: I feel that it can be abused, but –

Q235. The Chairman: Mr Stanley, we do not want to miss you out this time.

1090 Mr Stanley: Thank you very much. I agree pretty much with what Mrs Jones has said. It is a practice that the defence advocate will identify people that they know or the defendant knows and will mention this to the prosecutor, and the prosecutor will use some of their unlimited challenges to take those people out of the equation. 1095 From my perspective, the defence’s three challenges without having to give cause to the Deemster enable me as a defence advocate … and I have to say, I have stopped doing criminal work now, so it is 2013 was my last trial. The way that I always dealt with that was to try making sure that a jury was balanced. So I would not want to see a jury which was entirely male or a jury which was entirely female or one that was entirely people at retirement age, or entirely people 1100 that were just out of school. I would like to see a balanced jury. Because we only choose seven, sometimes you can get five or six people who are all of a similar description, if you like.

The Chairman: You are not talking against small juries there are you, by any chance?

1105 Mr Stanley: No. Well the right to challenge somebody without having to explain, ‘Your Honour, I just felt we were getting too many men on the jury’ or ‘I thought we were getting too many old people on the jury’, it is an important thing to try and get a balance.

Q236. Mr Malarkey: Couldn’t you work that to your advantage? Because you might want an 1110 all-male jury for some particular reason, because the males are going to be more sympathetic towards your client.

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Mr Stanley: And the prosecutor would be thinking, ‘This is an all-male jury. I do not want an all-male jury, so I am going to challenge some of the males until we end up with some females.’ 1115 The Clerk: Except, as Mrs Jones has just said, you cannot judge a book by its cover.

Mr Stanley: No, absolutely.

1120 The Clerk: There is no science behind this at all, is there?

Ms Jones: No, there is not. It is gut reaction.

Q237. The Clerk: Is it not the case, really, that if you did not have it, you would not want it, 1125 because you would not even think of it? You would have your challenges for cause: ‘I happen to know this person’ but it would not occur to you just to not like the look of one person and challenge them.

Mr Stanley: Well actually, not quite. One of the things that I would look for is the person 1130 being called up as a potential jury member giving dirty looks at the defendant in the dock or dirty looks at the prosecutor. Do they look as though they are going to be fair-minded and balanced or do they look as though they have come in with preconceived ideas about things? It is very much a personal feeling.

1135 Ms Jones: The difficulty in trying to do that with a jury, to be brutally honest, is that of course you have to do your challenge before they have then read out the names of the people and whether or not they have got a conflict, so you find that you have used your challenges. But two of the first-selected jury have been excused and then you end up with somebody that you really do not want on the jury. So that is the downside of it, which is why I use it very sparingly, 1140 because if you have used your challenges and then there is really somebody who, you know … This is theft of war medals, and the gentlemen has got his blazer on, with his buttons brightly shining and his war medals on, he might not be quite the sort of person I want on a jury of this particular theft. Okay, all I am saying is it is not going to be a cornerstone of my life, whichever way jury 1145 challenges go. There are fors and againsts on both sides.

Q238. The Chairman: Regardless of the various thoughts on this though, are you willing to defend the idea of this imbalance between peremptory challenges? Are any of you volunteering a defence on that one? 1150 Mr Stanley: No. I think it is useful that the defence can identify to the prosecutor, prior to the jury selection process, people who are likely to have some sort of connection and therefore – because the defence have limited peremptory challenges; we do not necessarily want to use those up – they would use those. But for the prosecution to have unlimited challenges, does 1155 seem a little bit unbalanced. There could be a middle ground.

Q239. The Clerk: Agreed challenges?

Mr Stanley: Yes, agreed challenges and then each have three. 1160 Ms Jones: And then argue with the judge whether it is reasonable or not, and whether you have got grounds to – is, I think, personally, a better way. If there are grounds to challenge then we leave it to the judge to decide. I am a great believer in judge’s discretion.

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1165 Q240. Mr Malarkey: You would be happy, then, if you were doing a challenge that you had to give a reason why that challenge was there, not because, ‘I do not like the look of that …’

Q241. Mr Karran: Would you have to do it in front of the individual juror or not?

1170 Ms Jones: No.

Mr Stanley: I think it would better outside the –

Ms Jones: There would be a mechanism to do it. 1175 The Clerk: Yes, if it was by agreement, you could do it very discreetly. You might know somebody was too deaf or whatever.

Ms Jones: We should not be excluding people for disability, but that is because we do not 1180 have court houses that are fit for purpose. But there you go; that is another issue.

Q242. The Chairman: You mentioned there, a couple of minute ago, something which interested me and that is that you find out – I think you said – at nine o'clock …?

1185 Ms Jones: I can collect the list at 9 a.m. on the Monday morning, if my trial is starting at 10.15 a.m. on Monday. The day of my trial, I go up and I arrive at reception and that is the first time I will see the jury list.

Q243. The Chairman: But your work is mainly – if we have understood you correctly – been 1190 more on the defence side, so do the prosecution and the defence see it at the same time?

Ms Jones: No, the prosecution has had it for at least a week if not two weeks before. So the prosecution has it for an unlimited period of time. So what I am saying to you, from a practical point of view, if a defendant wants to nobble the 1195 jury ahead of panel, they would have to have a corrupt police officer, because the court gives it to the AG’s, the AG’s give it to the police, the police carry out their criminal checks to see if anybody on the jury has convictions. So the only way you are going to get that jury list ahead of the day of the trial is a corrupt court official, corrupt official in AG’s or a corrupt policeman.

1200 Q244. The Clerk: Can I just ask, is the only purpose of giving the prosecution the list in advance to check that people are in fact eligible to serve?

Ms Jones: That is my understanding.

1205 Q245. The Clerk: So if you had a system – I do not wish to anticipate the line of questioning that the Chairman is keen on – whereby automatically you had, not the voting list, but a separate list of people who … And the list would tell you whether they were eligible or not, then the prosecution would not need to have the list that far in advance.

1210 Ms Jones: The difficulty with that – and I am playing devil's advocate here – is that our criminal conviction list is not the speediest at being kept up to date. They do make horrendous mistakes in the way that they record previous conviction, sometimes. I have had cases of that. The argument that has been given to me by the Attorney General's Chambers as to why they get it ahead of me – which seems unfair – is that they need the police to treble check at the 1215 very last moment, whether anybody who is empanelled to come to that jury trial has a conviction.

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Q246. The Clerk: But were you to have – in an ideal world – a move to a list which you could trust, then that objection would go?

1220 Ms Jones: Yes.

The Clerk: Okay.

Ms Jones: But that is what they have said to me. 1225 Q247. Mr Karran: Can you just clarify the point about there being the Rehabilitation of Offenders Bill? If you have got spent convictions, will there still be and will you still be –

Ms Jones: I do not see them. It is only the prosecution. If you are asking me whether I suspect 1230 that the prosecution object to potential members of juries when they have a shoplifting offence when they were 15 as a juvenile, I would suspect they do. But I cannot give you any evidence of that. That has to come from a question to a prosecutor as to what they use this information for in relation to somebody’s convictions.

1235 Q248. Mr Karran: So the situation is the prosecution can see stuff that would be classed as spent, as far as …? But you would not?

Ms Jones: I will not see any potential juror’s convictions at all. I will have no idea whether or not Mr Smith has a conviction for attempting to pervert the course of justice. 1240 Q249. The Chairman: So you are blind to those peremptory challenges? (Ms Jones: Yes.) Is the prosecution partially blind to the advice they are receiving from the police, in terms of the whys and the wherefores as to that person or this person should not –

1245 Mr Stanley: I do not believe it is the police who decide if somebody is exempt or not. They just give the previous convictions for the people who are on the jury list. I have done prosecuting on behalf of the Attorney General’s in the past, so I have seen the previous convictions lists that come with the jury list to the prosecutors. There are a number of factors that might be taken into account. Not every criminal 1250 conviction prevents you from sitting on a jury but there may well be particular convictions that may make it undesirable for that particular juror or that particular person to sit as a juror on a particular case. So it is not a case where the AG’s could simply be given a list of exemptions based upon previous convictions, because there is an element of considering things which do not exclude 1255 you from a jury service, but which might be relevant to whether you should be on that particular jury.

Q250. The Chairman: That is clear. Thank you. So we will move on, if we may, to the electoral roll. We have an electoral roll at the moment 1260 which is something like 20,000 short of the potential number of people who could be on it. Have you got any views that you would like to share with us on this?

Mr Stanley: The benefit of choosing the jury by using the electoral register is that they are people who are chosen at random from the majority of the population, and it is a list simply 1265 because you are living in the Isle of Man and you are eligible to vote in the Isle of Man. If you chose to have some other sort of list, then the question would arise as to who decides who goes on that list. The important thing about having the electoral register as the list is that it can be

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anybody; as long as you are registered to vote in the Isle of Man, then subject to the exemptions from jury service, you are up for being a member of a jury. 1270 The Chairman: Well, no, because if you choose to opt out of the electoral roll, you choose to opt out of jury service.

Mr Stanley: Well, I think you are supposed to fill out the forms to go on the electoral register. 1275 Q251. The Chairman: Well, we are 20,000 short, aren’t we?

The Clerk: The estimate we have received is that there are about 20,000 who should be on the register who are not. 1280 Mr Stanley: Well if people do not wish to be on the electoral register, are they the people that you would particularly want to have on your jury?

Q252. Mr Malarkey: Well, is that fair? 1285 Mr Stanley: Well, the question is, what would the other options be? And the other options would be some other type of list and then you have the question as to … Well somebody has to decide who goes on that list, so that brings into question, is the Government body who decides what the list is or who goes on it, are they going to do it randomly or are they going to put a 1290 selection process in?

Mr Malarkey: It must be fairer to have a list where you opt out rather than what we have at the moment is a list where you are opting in, because if you do not go on the voters’ list – and people do not go on the voters’ list because they do not want to sit on juries. I hear that so often 1295 when I am putting forms out for the electoral roll, ‘Oh, no. I do not want to sit on the jury. I do not want to sit on the jury.’

Ms Unsworth: But it is a criminal offence not to fill out your electoral card and register –

1300 Q253. Mr Malarkey: And when was the last prosecution for that?

Ms Unsworth: But that is Government’s problem. Government need to prosecute people who do not fill out their electoral card. You must fill it out. That is what the law says. So if people are not doing it, then that is a separate issue, isn’t it? 1305 Q254. The Clerk: But if it were possible to create a list of citizens from other sources: Income Tax being a primary one, of course, but other … So that you could get closer to a list of all the residents on the Island and, from that, you would know how to populate the list with details of those who are eligible to serve. So it would be still a random list; there is no group of people 1310 gathering and making a choice, it is just an automatic operation of law. That, I think, is what the Committee is looking at. It is a list modernised. It is the same idea, but it is actually one that is a bit more effective, because it is a bit 19th century, perhaps, to use the electoral roll.

Mr Stanley: I suppose you might still have the problem, though. If people are prepared to 1315 give up their right to vote in the Isle of Man for fear of being called up to do jury service, are they going to not want to fill in their Income Tax forms correctly for fear of the same thing? Given that people probably do not want to pay Income Tax in the first place.

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Q255. The Clerk: Most people are PAYE. Most people do want to be able to go and see the 1320 doctor. Most people have things from the state that they want to be able to claim. So if you are on a doctor’s list and you pay tax, that is most people, isn’t it?

Mr Stanley: I think, from my perspective, the key thing would be to ensure that it was a list that was entirely random. So that there was not a selection process or ineligibility criteria that 1325 somebody in Government was deciding.

The Clerk: There is no suggestion –

Ms Jones: Can I just ask, just one point on that – I am again with Mr Stanley that I am not 1330 married to the electoral roll, if you can come up with a system that gives the ability for a list to be produced to the coroner to then summons. I do not have an issue with that. I think one of the good things about the way that it is done is the fact that it is split into six sheadings, so that we ensure that we get a certain amount of people from each area of the Island. I quite like that idea. I quite like the fact that I know that I am not going to be all Middle. I 1335 am going to have some from Ayre; some from Garff; some from Lezayre; some from here and it is done specifically number-wise at the moment. I think I would like to retain that ability to not cherry-pick but to ensure, throughout the Island, there was a wide spread of where people come from.

1340 Q256. Mr Malarkey: Just wondering: a lottery, basically, of everybody would be a much fairer way forward?

Ms Jones: Well, no. What I am saying is the fact that we know that we get some from the north; some from the south; some from the east; some from the west; some from the middle, I 1345 quite like. That is all I am saying.

Q257. The Chairman: Is it not the case, at the moment, it is not random enough; that actually there is a tendency to march through the alphabetical list and we end up with a whole load of Quines or Kellys or something? 1350 Ms Jones: Yes. It is better than it was but –

Q258. The Chairman: That is a bit daft, isn’t it?

1355 Ms Jones: You used to, when you got to the Ks – especially, if you hit Middle and Glenfaba and you were both in the Ks, then it was a little bit confusing.

Q259. The Clerk: How does that work? Because not all the sheadings are equally well- populated. 1360 Ms Jones: They do not all get equal amounts of numbers; Middle is the main one. But the problem you have – and I do not mean to be disrespectful but – a lot of my crime is based on particular estates. Therefore, we hit the problem of, ‘Yes, well, you know, they used to live in the road next to us.’ So, if you have that spread across the Island that is built in, I think it is quite 1365 useful. That is all I am saying.

Q260. The Chairman: Would you not think – I am being a little bit mischievous here, again – that it gives you a greater spread with 12 rather than seven?

1370 Ms Jones: Depends …

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The Chairman: Let us move on, shall we? (Interjections)

Ms Jones: You would be summonsing more people from Garff and from Lezayre and Glenfaba and the Middle, wouldn’t you? I am just pointing that out: that if you are looking at a 1375 different way of doing the list, make sure that it is the even spread along the Island, I think is important.

The Chairman: Forgive me, I was being mischievous.

1380 Mr Stanley: Avoiding the alphabetical production of lists as well, because that does produce problems if you have 10 people from the same extended family all summonsed for one jury service, that entire family might be not suitable. They might be known to one of the defendants or something, and that is a big chunk of your potential jury taken out automatically.

1385 The Clerk: A modern list can be … There are algorithms for having rank and selection in there.

Q261. The Chairman: Okay. Moving onto exemption from service. We have a colossal amount of exemptions from jury service compared to most jurisdictions and we are mindful to look at this and examine it carefully. We would welcome your thoughts on the current 1390 exemptions, which are significant. Are you comfortable with them?

Ms Jones: I know it is a separate question, but I am going to deal with legally trained people, because I think that is important. I looked at this question from the point of view of myself sitting on a jury. I think that if I were 1395 the prosecutor, I would be very uncomfortable with Mrs Jones sitting on a jury. I think that I would be thinking to myself, ‘Well, the potential is that juries are going to say to Mrs Jones, “What do you think?” and when Mrs Jones expresses her views, that those views are going to take priority over and above the rest of the six.’ Then I looked at it from the point of view of myself. This is a very small jurisdiction and as 1400 much as we try to be professional, I might have an OIC – an officer in charge – who is the OIC in this case who I thought, on previous occasions, had not been particularly honest with me, who had tried to pull the wool over my eyes. Would I be capable, absolutely, categorically, of ensuring that that particular personal bias did not go into the jury room? I might have a prosecutor who I cannot stand. Would I be capable of making sure that did not go into the jury 1405 room? I do not think I could. I think it is because it is such a small jurisdiction and we all know each other so intimately, professionally, that I think that is our difficulty in allowing the legal profession to come in.

Q262. The Clerk: Those are all reasoned grounds. (Ms Jones: Yes.) You are saying to the 1410 selection, ‘I am Dawn Jones. I probably know the defendant; I certainly know the police, all the police in the case. Please excuse me.’ And they would say, ‘Yes, of course.’ But when Mrs Unsworth, who is sitting next to you, who does civil claims, says the same thing, they would say, ‘But you do not do crime. Why would you be in difficulty?’

1415 Ms Jones: But you have not got the first issue, which is the difficulty of the jury, the other six or 11, saying, ‘The lawyer must know best.’

Q263. The Clerk: But then you could say they would say the same thing about a doctor or anybody who has got a university degree. You could say that about anybody. If you have got a 1420 random selection and you actually move to trying to get the community represented as it actually is and have few exemptions, that there will be this split in the jury. It is the same, isn’t it? They might not necessarily –

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Mr Stanley: In my view on that: it is not quite the same to say that a jury might be particularly swayed if one of the members was a doctor. Whilst obviously there is an issue that 1425 certain professions might hold higher regard for people – and hopefully doctors do – if you have somebody who is legally qualified, such as an advocate, or even worse a judge, sitting as a member of a jury, the perception is not only going to be, ‘Well, is that particular profession held in high regard – and I am not quite sure advocates necessarily are these days so much – but more that people are going to think, ‘Well, they know what they are doing’ in terms of what our 1430 job is. So whilst a jury member might say, ‘Oh, yes, Doctor So and So, yes, he is a nice chap, I respect his opinion’ they are not going to say, ‘Oh, yes, Advocate So and So is legally qualified. He must know what the correct result is going to be, because he is a lawyer.’ How many times have I heard people saying, ‘Oh well, you are the lawyer’ in response to any sort of question. People do assume that lawyers know every single bit about every single law regardless of what 1435 type of law they do.

Q264. Mr Malarkey: That really nicely leads me into what I have been saying on most of the enquiries we have had here about one dominant member of a seven-person jury. It is very easy, in my opinion, for one dominant member to – and you are backing it up here – to sway that jury. 1440 If it was a 12-person or a 10-person jury, it would be much harder for that one dominant person to sway. So another argument as to why the jury is too small: because it can be swayed by – it may not necessarily be a lawyer, it could just be a very clever businessman who has been put on there, who is an up and coming politician, who knows how to manipulate people, if you like, and he can manipulate the whole jury, because there are only six members to do that to. Not quite 1445 the same if there were 10 or 12 there, for him to manipulate. So you have just really backed my case up for a bigger jury.

Mr Stanley: I do not have a great issue with an increase in the number of jurors, I would have a great issue if it was a majority verdict of that increased number. 1450 Mr Malarkey: That is interesting.

The Chairman: Okay, I must commend you as excellent advocates for arguing so strongly as to why you should not be on the – 1455 Mr Stanley: If you would also like me to argue that spouses should not be on it. (Laughter)

Q265. The Chairman: You have not disappointed. But before we move on, can we go beyond you guys just a little bit. Are there any other 1460 areas?

Ms Jones: Judges: definitely not. Police officers: definitely not. With the greatest respect, their training, from day one, is to get a conviction if they possibly can. I am sure that they … But I think that any defendant who had a police officer on the jury would feel aggrieved. They 1465 investigate. It is this idea that, ‘Yes, we want everybody to serve on a jury’ but from the point of view of a defendant – I know what you are going to say: that is reasonable cause to object to – but it is the profession that they are in. Those people, the defendants have been in a police station; subject to interrogation by the police officers; nine times out of 10, they have had a horrific experience in that police station and I just think that we should keep police officers 1470 exempt.

Q266. The Clerk: I was going to ask, does it extend to retired officers?

Ms Jones: I still think that once a police officer, always a police officer.

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1475 Mr Stanley: One of my concerns is public perceptions –

Ms Jones: With some exceptions, Mr Russell.

The Chairman: Noted. 1480 Mr Stanley: One of my great concerns is public perception, because the justice system needs not only to be fair in practice, but it also needs to be seen to be fair. (Mr Karran: Hear, hear.) It has to be demonstrably fair, so that people will have confidence in that system. If you have anything which might undermine the confidence and the independence of the judicial system, 1485 then that is certainly a no-no, from my perspective.

Q267. Mr Malarkey: Can we, then, rephrase this? Are there any occupations that are on the list at the moment that you think are totally unnecessary? It might be a better way round, because – 1490 Ms Unsworth: I think, realistically, you are looking at Group E of the Act. You have got medical practitioners, dentists, nurses, midwives. We all understand why they are on the list, because they might be required to deal with emergencies or health problems that are going on. There are, however, people on this list that I personally do not understand why they are the list. 1495 So, for example, pharmaceutical chemists. Are they really needed to be on the list? The Chief Financial Officer of the Treasury; the Chief Executive of the Department of Health and Social Care. Why is he exempt? What has he got to do with it? If you go through the list, there are people on here who I do not understand why they are exempt. All others groups of the Act, I understand, there are people on this list, I do not understand. 1500 The Clerk: Even the Clerk of Tynwald!

Q268. Mr Karran: Can I ask that you have the reflection and maybe we do a list of people that you think should be exempt and people that should not, as you are on the coalface. I think 1505 asking just on the top, you need the time to think about that, especially as you are representing the Law Society.

Ms Jones: Right.

1510 Q269. Mr Malarkey: Can we take that one further, do you think age is a discrimination? Sixty- five, the cut off, does that mean that everybody, when we get to 65, we are not capable of making a decision?

The Chairman: I am 60-odd, so be careful. 1515 Ms Jones: Tricky one! I am 54 and I struggle – not struggle … I know the difference between 54 and 44, as to how much a jury takes out of me. I think that you have to recognise that sitting on a jury, even though the vast majority of the time you appear to just be sitting on your bottom listening, is actually extremely tough-going. 1520 Mr Malarkey: You want to try sitting in Tynwald! (Laughter)

Ms Jones: I am sure it is. We then add into that the fact that our courtrooms are not ideal. I suffer from old age and as 1525 a result of that I cannot sit in the chairs any more in the court; they cripple me. They have no ability for anybody who is hard of hearing to hear what is going on. We have no ability within

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our courtrooms to have anybody who is disabled sitting on a jury – which I think is a travesty, an absolute travesty; to alienate that part of our community in this day and age is unacceptable. So you need to look at it in that context. I do not believe in any way that people of 65 cannot make 1530 reasoned decisions and bring their –

The Chairman: That is a relief.

Ms Jones: – expertise and their life knowledge. This life knowledge is vital in many respects 1535 to the jury system. That is what we want of people: your different aspects of life; your experiences, to give a balanced decision. But it is difficult because when do you get to the point of saying, ‘Right, well now, 75 is fine, but you are going to have to produce a medical note that you can hear okay, that you are not doddery, that you are not going to fall asleep, you are not going to need 15 loo breaks this afternoon’? Sorry to be that blunt, but those are the issues that 1540 we have got to look at. But in principle, no – although I would not encourage an extension for judges until 75. I think that is about right now. But in principle, I have no objection to it, but we need to look at the wider context of it and maybe concentrate on a few more areas to increase our numbers at this point. Why should somebody who is hard of hearing, who is perfectly fit and able, not sit on a 1545 jury if they want to?

Q270. Mr Karran: Could I ask: maybe the facility of people being able to exempt themselves if they feel they are over 65 and they are hard of hearing or whatever, to be able to give them that unilateral ability to exempt themselves. Sometimes you do not want to look at reality that 1550 you are getting older, but that would be one way of maybe giving some flexibility, if we were to raise the age to 70, say.

Ms Jones: But if we make a decision, if we as a society make a decision that people up to the age of 75 can sit on a jury, we have to alter the system to fit them, not to then say, ‘But we will 1555 only take a few of you.’ That is discrimination, isn’t it? That is the one thing we do not want to be is discriminating. ‘You can sit if you are 75, but only if you are not hard of hearing, you have not got incontinence problems, you are not a bit doddery on your feet and you are unlikely to fall asleep half way through the afternoon session.’ That is not right.

1560 Q271. The Chairman: Yes, but what you have done is, with respect … We have an arbitrary age of 65 and you have chosen 75. There are lots of other ways to cut the cake.

Ms Jones: Absolutely, and I started this discussion by saying, ‘In principle, I do not have any difficulty with it.’ But I am just saying you need to look at the practicalities of the situation of 1565 doing that. If you are looking to increase your numbers of availability, there are other areas you can look at as well.

Q272. Mr Malarkey: I think it would be quite easy for a doctor’s note to be sent in that (Ms Jones: Yes, absolutely.) ‘This gentleman is not capable of sitting there.’ 1570 Ms Jones: But that is relying on the potential jury to do it. You might have somebody who is that age who is determined to do it and will not have a medical note. And you have taken away my peremptory exemptions, so I cannot do anything about that. (Laughter)

1575 The Chairman: We are enjoying ourselves immensely, but it is 1.20 p.m. and we have got to keep pushing on.

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Ms Unsworth: Just on the age factor, I think we do need to bear in mind that people in the Isle of Man are given the responsibility of voting at the age 16. They cannot sit on a jury until 1580 they are 18; they are not tried in a criminal court when they are 16. So we have potentially got two years of voters there who could sit on a jury because they are between the age of 16 and 18, but they are not tried as adults and they are not able to sit on a jury. So, perhaps, another way of looking at expanding the pool of jurors is to look at that anomaly within our legislation. I am not saying I am in favour of 16 years olds sitting on a jury; I am not saying that I am not in 1585 favour of 16 years olds sitting on a jury, but Tynwald have given them the responsibility that they can vote on what happens on this Island –

Mr Malarkey: I think that is a much bigger debate, for another day. They are not allowed to buy cigarettes; they are not allowed to drink alcohol, so I think that is a much wider issue. 1590 Q273. The Chairman: The impact a 16-year-old – one voter – can have on the future wellbeing of a parliament does not really compare to the incredible impact a 16-year-old could have on a small jury of seven. But we will leave it there. We must go on. Payment for service: any thoughts on that for us? Are you comfortable with 1595 the way it works at the moment? Do you think there are any adjustments of changes we might want to deliberate on?

Ms Jones: I meant to look up – and forgot – when there was last an increase in payments. No doubt Miss Unsworth is always good on these things. I think it was some time ago. There has not 1600 been any significant increase in relation to the allowances given to jury members for some time. That is a Treasury decision.

Q274. The Clerk: It is probably fairly common ground among everyone in the room, it is extremely low. 1605 Ms Jones: It is pathetically low.

The Clerk: Nobody is going to advance any idea that it is not.

1610 Ms Jones: But that is a Treasury matter; that those matters are capable of being increased in relation to the fees they do get, but they are derisory really. The difficulty I have with the way that you are questioning it is: my understanding is that if you are in employment, you carry on getting your wage anyway. You are not deducted. The difficulty you have is self-employed, housewives, people who are reliant on other types of 1615 income who are not able to claim it because they are on jury service. So if you are employed with the Isle of Man Bank – I do not mean that; just any bank – then you will continue to get your wages.

Q275. Mr Malarkey: But there is no obligation under law for them to do that and we are 1620 looking at possibly making it compulsory for larger companies, that they do have to pay and then not pay them any money because they are being paid by work which would then leave us a pool of money to pay the self-employed or the ones … a little bit more.

Ms Jones: But that is the difficulty you have, isn’t it? If you do not have it by way of a fixed 1625 reasonable fee, then how do you assess what their loss of income is? You are getting into very difficult means-tested assessments.

Mr Malarkey: We were not thinking about getting that complicated, I do not think, really.

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1630 The Clerk: There is not going to be a perfect solution.

Ms Jones: No there is not, but if you said – maybe to switch it on its head – that every jury member will receive this amount of money, but that you make it that, if you are in employment, then you expect your employers to pay you and they then rebate the payment for the jury 1635 service. It is almost like how the sick pay works. There is no ideal solution, but if you are asking me what I think about them, they are derisory.

The Chairman: Any other – 1640 Ms Unsworth: The remuneration was last – according to the Act – updated in 2003, which is quite a long time ago.

Q276. The Chairman: The amount? 1645 Ms Unsworth: Yes. According to the Act anyway … I have only printed this this morning. It is 2003, so it is somewhat out of date. My concern is, if you are saying that larger employers have to pay people sitting on a jury, how do you define what a larger employer is? Are we doing it by way of number of employees? 1650 Are we doing it by way of turnover? Because you might have somebody who has a lot of employees (Interjection by Mr Karran) who actually is not very profitable, you are taking a key member of their staff away from them; they are going to have to replace that member of staff if they are sitting on jury for two months. There are many, many issues there that cause difficulty.

1655 Q277. Mr Malarkey: Again, it is easier to opt out than to opt in, so if you made it across the board that all employers had to pay but if, as the employer, you felt that your company could not do that, you could not afford to that, you could write to the court and say, ‘I cannot afford to do it, end of.’ But the majority of companies, especially if a trial is only going on for two days or three days, it is no more than in the – 1660 Ms Unsworth: There is one aspect that I disagree with wholeheartedly in here, which is that jury members have to pay for their own refreshments. I think that if they are sitting on a jury they should be at least be given hospitality where tea, coffee, water are provided to them. They are given a subsistence allowance for lunch, but it is not a lot of money. It would buy a sandwich 1665 a bottle of pop or whatever. But whilst they are in the jury room deliberating, they are having to pay their 50p each time they want a cup of coffee (Mr Karran: That is ridiculous.) and pay for that, and realistically I think that needs to change.

The Chairman: You disappoint me because I was recalling something I read about many years 1670 ago where judges used to refuse to feed or give juries water until they –

Ms Unsworth: They did – until they reached a decision.

The Chairman: Can’t we go back to that? (Laughter) 1675 Ms Jones: The difficulty most jury members will have is the Deemster does not give them long enough to get the 50p in the coffee machine anyway. (Laughter)

Q278. The Chairman: Right. 1680 So if we could then just conclude – apart from any closing remarks that you may have, which we would be very pleased to hear, two areas which I think we will get a fairly strong reaction on,

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and that is – and I have put them together because time is going on. It is jury training and support for jury by way of advice. Are we pretty well in the right place at the moment on those two things? 1685 Ms Jones: I think so. I think that, as I stated, the idea that the jury – whatever number you decide – is in that room bringing their experiences with no fear of anything interfering with their decision-making is where we should be. I think the video the jury is shown before they come in for balloting is quite good and 1690 balanced. I think that the directions and the opening from the Deemster are quite good. It seems to put them at ease and that they seem to understand what is required of them. I am afraid I do not understand what potential secretarial service they may need. The whole idea is that they do not take their phones in; they are switched off. They are isolated from the world while they deliberate and that they should not be influenced by anything or anybody at 1695 all. I just cannot see how that would help. I think any defendant would find it very difficult to understand why somebody else was going into that room, who was not under oath, who was not part of the jury, who may have heard other things go on in the trial. You have to understand that a lot of things happen that the jury do not know about and, for every good reason. They only hear the evidence. They do not hear the legal arguments; they do not hear the spats 1700 between advocates and that is the sacrosanct of the jury. They have only heard the evidence when they go in.

Q279. The Chairman: Do you think that it should be compulsory for a judge to provide in writing to the jury before they retire, a specific list of the clear points that the prosecution make, 1705 a specific list of the points that, say, in this case the defence make and also the points of law that the judge has identified as crucial to any decision making process?

Ms Jones: Pathways? Hmm, I am not a great lover of them. I have used them; we have used them in this jurisdiction: the pathways or whatever this month’s phrase that I am supposed to 1710 refer to them as. We used them in the recent murder trial and the difficulty with those, in all honesty, is that you can then criticise the decisions made in relation to the wording, because the fear is that they take priority to what was said; they become their bible; their absolute. ‘This is what we have got to do and we have got to follow this very rigidly’ and you are doing away with all the other side of it which is, ‘You might reject what I say; you might find other things 1715 important. I might not refer to evidence that you think is important.’ You are restricting them. They can be a useful tool, but I think to make them used in every case would be dangerous. The vast majority of trials should go as they are. There are exceptions. We used them as well in the death in custody for the jury in the Inquest and they found those very useful to have the clear pathways. ‘These are the steps that 1720 you have to take.’

Q280. The Chairman: Sorry, can I just explore that? Why would it be appropriate in that particular instance – because Miss Unsworth was nodding vigorously there. Why that particular one? 1725 Ms Jones: The jury, first of all, had to decide whether or not the defendant committed the acts. They then had to go on and consider whether or not there was any lack of intent which would defeat a murder charge. They then had to go on and decide whether or not there was any element of self-defence, which would defeat a murder charge. They then had to go on and 1730 decide whether or not there was any element of provocation and what the elements of provocation were, which would reduce it to manslaughter. Then, if they still had not reached a not guilty, they had to go on and decide whether or not diminished responsibility was a potential defence to murder to reduce it to manslaughter.

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So the difficulty – and it is something I am very passionate about: the fact that we are still 1735 prosecuting under an 1872 code. We have not modernised, really. The options available to that jury were so complex and were not clear on the face of the information they just had: was he guilty of murder, yes or no. But the reality of that case was that there were multiple steps: lack of intent; self-defence; all of these things took it to a different type of area where there were different considerations. There were so many directions the jury had to be given. 1740 Similarly with the death in custody: so many interested parties who may nor may not be contributory to the death.

The Chairman: Thank you.

1745 Mr Stanley: In terms of the suggestion of having a legally qualified secretary or somebody similar in the jury room to assist and advise juries, again I think that is an important issue in terms of perception and justice being seen to be fair and independent. If you have somebody who is a government employee and who is effectively an extra government member of the jury – which is what they would be become if they are giving advice to a jury – then you take away 1750 the independence altogether. So I think, from a perception point of view – even with the best will in the world and the best person doing it in the world – perception-wise, it would not be acceptable. And practically, as well, because the whole concept of the jury is that they listen to the evidence which takes place in the courtroom and, unless you are going to have this legally qualified secretary sitting with 1755 the jury in the courtroom and coming in and out with the jury in the courtroom as effectively a de facto extra jury member, that person is not going to have the full picture or they may have a wider picture that they should not have.

Ms Unsworth: It is dangerous because it goes back to what Mr Malarkey was saying before: 1760 you have got a legally qualified secretary, they could potentially – they are not on the jury; they have no decision making power – foist their views upon the jury. They could potentially be nobbled from the outside and then be used as a mechanism to get the jury to go one way or the other. That is far more dangerous than the system that we have the moment.

1765 Q281. Mr Malarkey: Moving on slightly, do you think or have you had experience with regard to, after a jury has finished, whether they should be offered counselling after very serious cases? Some of the evidence they might have seen that might stay with them for years … We have learned that there is absolutely nothing there. It is like, ‘Thank you, much and off you go and there are your pennies.’ 1770 Ms Jones: We do it in a more subtle way in that we have learned over the years to monitor the way that we deliver evidence to the jury. For example, in the murder case, they did not see any actual photographs. They were all on a mannequin and they were done in a way which is less … manageable. They are told that, ‘Unfortunately, you are going to have to look at these 1775 things.’ But you are right, in the bad old days, we just used to say, ‘There is a dead body – deal with it’ and nothing.

Q282. Mr Malarkey: What about rape cases?

1780 The Chairman: Child molestation or abuse issues –

Ms Jones: Sorry?

The Chairman: Child abuse issues must be very – 1785

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Ms Jones: Yes. They are obviously told that, We are all going to be very professional; we are just going to deal with it as it is; we are going to leave our emotions aside; we have to get through this; that we have to deal with it; you are going to hear things that are not very happy.’ It is an area that – how do you deal with it, other than …? 1790 I remember there was a period when the police became very aware of it and at the end of a 14-hour interview with my client on very serious sexual offences, I had this very young junior officer come and offer me counselling because I had gone through a terrifying experience. I did tell him where to go! (Laughter) How do you deal with it? Each jury member is different, but all I can assure you is that those 1795 who deal with criminal law are very aware of the need to present very difficult evidence in a way that is as less shocking as possible, but still being fair to both sides. I suppose there is a way of doing it, but how you do it, I cannot think of.

The Chairman: Is there anything, as we close, you are bursting to – ? 1800 Mr Karran: I am sorry, I just have one or two questions, please.

The Chairman: Sorry, go ahead.

1805 Q283. Mr Karran: The issue about mental health: when you are selecting a jury, if people have a long-term mental health issue – obviously you do not want to embarrass people – but if there is somebody who gets on a jury that has a mental health issue, is there anything that is done as far as people are given that exemption if they feel they have got a mental health issue that they want – 1810 Ms Jones: That will mostly be done with the Chief Registrar before we even get to the day of the trial. That will be done through medical certificates and representations. There are the odd few who will get through, who do not tell their doctor that they have been summonsed, who, because of their own mental health issues, will actually want to be on the jury. That has 1815 occurred. We have, between the court staff, the lawyers, the judge, spotted that quite early, in fact, before empanelment took place and we dealt with it by way of, if that number came out, the prosecution were going to just object without reason.

Q284. Mr Karran: Right, so have they got to say they have got a mental health issue? 1820 Ms Jones: Yes and that is the problem: a lot of people with mental health issues will not admit that they have mental health issues. If that happens then we have to trust our experience to spot it, and we would never, ever embarrass a potential jury member by saying, ‘You have got mental health issues.’ We deal with it in a different way. 1825 Are you asking me whether there is a potential that somebody with mental health issues could be balloted: yes, if they were good at secreting it and knew how to hide it, then of course, but you would hope that the other jury members would say, ‘There is something not quite right here’ and would report it to the Coroner. But potentially it can happen, yes, but –

1830 Q285. Mr Karran: The other issue is of course – which was not brought up; it was brought up by one of my colleagues: a poor understanding of English either by written or by oral.

The Chairman: Reading – oral or written.

1835 Ms Jones: We rely on the jury members themselves to say that, either beforehand to the Coroner or when they are picked out to write a note, because they are told, ‘Any other reason.’

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And I have had at least half a dozen potential jurors passing a note saying, ‘I cannot really understand English,’ ‘I cannot write English.’ And they give that as a reason not to sit on the jury.

1840 Q286. Mr Karran: I was quite surprised to hear you have got to pay for your own coffee, which the jurors have, which is crazy in my opinion. About car parking: are there any facilities?

Ms Unsworth: They get rebated for car parking charges or bus fare or taxis, depending on 1845 how far outside of the area they live. It is rebated.

Ms Jones: They have to find their own parking and that is it.

Q287. The Chairman: Right, well, any closing remarks that you are bursting to say? 1850 Ms Unsworth: Just on Mr Karran’s mental health issue: of course it should not be forgotten there are many people who have mental health difficulties who are more than capable of sitting on a jury. Mental health encompasses a whole vast array of different illnesses. So somebody who may have a mental health difficulty, there is not necessarily a reason why they should not 1855 be on a jury unless it is something that will prevent them from being on a jury. So we cannot say that everybody with mental health illnesses should not be –

Mr Karran: Absolutely! I have spent years fighting for people with mental health issues.

1860 The Chairman: Okay.

Q288. Mr Karran: The other thing that I was going to ask you about, but I do not know where I have put it now. The resounding issue as far as the independence of the jury and the court system away from 1865 political influence: how do we deal with that – where we see lots of small jurisdictions end up in the situation where the criminality has taken over the state? How do we manage to deal with the issue when you deal with … Take the likes of Dutch Antilles and many small jurisdictions. What sort of action can be taken to make sure that the judicial, the legal system stays independent from other aspects as far as the Isle of Man state is concerned? 1870 The Chairman: Well, that is actually beyond the remit –

Ms Unsworth: I could probably talk for hours on that.

1875 The Chairman: It is beyond the remit of this Committee.

Q289. Mr Karran: No, but the point is – it might be, Chairman, what you think – making sure, like we have heard that we want to change the selection of the voters’ list to more proper persons, as far as that. We have heard Mr Stanley talk about keeping that independence of 1880 people. It is very relevant, as far this is concerned, allowing for the fact that often the judicial system is the only thing that is independent, because the executive and parliament have basically stuck together.

Ms Unsworth: Our entire system is built on the separation of powers (The Chairman: 1885 Absolutely.) and from those parts of Hansard that I have read, from my experience sitting in court, everybody in the Isle of Man is fully aware of the separation of powers. Personally, as a practitioner, do I feel that we have an issue? No, I do not. If an advocate was before the court and they felt that there had been a blurring of the separation of powers and perhaps a judge

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had overstepped the mark and was speaking for parliament – which I hasten to add, I have never 1890 seen – we are the gatekeepers of justice too. We are officers of the court and it is for us to speak up about that.

Ms Jones: Which is why what you can do is ensure the independence of the Manx Bar: (Mr Karran: Absolutely.) retain it; do not be pressurised in making rash decisions on a monetary 1895 basis to weaken down the independence of the Manx Bar. Whilst you have a robust and independent Manx Bar who are not being paid by Government to defend, then you have a better chance of ensuring that independence and transparency. So, I know I am blowing our own trumpet, but please protect us.

1900 The Chairman: Thank you. With that – a delightful point to close. On behalf of the Committee, can I thank you enormously for the contribution that you have given us today. It is a lot of food for thought. We shall go away and deliberate further. Finally, if there are any other thoughts that you have for us, do please write; we would be 1905 delighted to hear from you. Once again, thank you so much.

The Committee adjourned at 1.46 p.m.

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11th March 2016 Evidence of Mr Simon Cain, President, Isle of Man Law Society, and evidence of Mr Mark Lewin, Director of Government Technology Services, and Mrs Della Fletcher, Executive Director External Relations, Cabinet Office

141 142

S E L E C T C O M M I T T E E O F T Y N W A L D C O U R T O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L B I N G E R – L H E H T I N V A A L

P R O C E E D I N G S D A A L T Y N

OPERATION OF THE JURY SYSTEM

HANSARD

Douglas, Friday, 11th March 2016

PP2016/0050 JURY, No. 4

All published Official Reports can be found on the Tynwald website:

www.tynwald.org.im/business/hansard

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © High Court of Tynwald, 2016 143 SELECT COMMITTEE, FRIDAY, 11th MARCH 2016

Members Present:

Chairman: Mr C R Robertshaw MHK Mr W M Malarkey MHK

Apologies: Mr P Karran

Clerk: Mr R I S Phillips

Contents Procedural ...... 101 EVIDENCE OF Mr Simon Cain, President, Isle of Man Law Society ...... 101 Mr Lewin and Mrs Fletcher were called at 11.10 a.m...... 114 EVIDENCE OF Mr Mark Lewin, Director of Government Technology Services, and Mrs Della Fletcher, Executive Director External Relations, Cabinet Office ...... 115 The Committee adjourned at 12.07 p.m...... 130

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Select Committee of Tynwald on the Operation of the Jury System

The Committee sat in public at 10.15 a.m in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR ROBERTSHAW in the Chair]

Procedural

The Chairman (Mr Robertshaw): Welcome to this Committee meeting. We are taking evidence today on the operation of the Jury System in the Isle of Man. To my left is Bill Malarkey MHK; and of course you know Roger Phillips, the Clerk of Tynwald. The obvious: if you could just be sure your mobile phone is switched off. And the obvious 5 point, which I am sure you are well aware of, is because it is being recorded we must not talk over each other. And in the highly unlikely event of a fire alarm going off, either of those two doors is fine. I think you are pretty familiar with the trials and tribulations of the Committee and the exchanges we have had so I think the best thing to do is, if I may, go straight into the meat of it. 10 Mr Cain: Yes, please do.

EVIDENCE OF Mr Simon Cain, President, Isle of Man Law Society

Q290. The Chairman: Thank you very much. The first three subjects we would like to talk to you about and hear your views on, are: the potential impact of social media, the size of the jury and majority verdicts. I am quite content 15 when we deal with these three items if you want us to slip backwards and forwards, because there is a significant degree of interrelationship between them. Starting with the impact of social media – and then we will go on afterwards to the other items. So, turning first to social media: how serious do you think the threat to the integrity of the 20 jury system is with regard to social media, bearing in mind the significant focus it has had in a number of jurisdictions, not least of course in England and Wales, in recent years – the introduction of new laws, the comments by the Lord Chief Justice, etc? We would be pleased to hear your thoughts on that, sir.

25 Mr Cain: Just before I answer, I must say that before today I have spoken to quite a lot of members of the society, and a few members have written to me as well, so I am going to give you my view, but it will be coloured very substantially by what I have been talking about with

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other members – because the idea of my coming, I think, was not just to get my personal view but the view of a large part of the membership of the society. 30 So I hope that is okay?

The Chairman: We are grateful for that, thank you.

Mr Cain: I think the message I am getting, and certainly my view, is that while it is a very 35 important issue for us to think about, I do not think there is a view that it actually threatens the system – I think you said is it a threat to the integrity of the jury system. I do not think it is the view that it is such a threat that it actually calls into question the whole system. Clearly, the use of social media is growing and has done incredibly over the last 10 years, and there is a risk that jurors will be looking at their smartphones and reading information that they 40 should not be doing, and they have access to so much information now, whereas in the past they would not have done. And that is a risk. But the system is that the Deemster will instruct the jury on what they should and should not do, and I think we have got to give the Deemsters the benefit of the doubt and say that they are the ones who are in charge: they understand these issues; they are in control of the court; they 45 speak to the jury; they give the jury directions – and that is the protection. I think the general view of the membership and the people I have spoken to is that it is certainly a big issue, but it is an issue that the courts are aware of and deal with in that way.

Q291. The Chairman: That is a very clear position taken with regard to the interaction of 50 social media and jurors whilst, as it were, under the influence of the Deemster within the confines of the court. But one of the issues which came to our attention … I think probably I have to say for the first time, when we heard from some of your colleagues last week, was the potential influence of social media immediately prior to the court case itself, and what may or may not be being said from certain quarters during that period of time. 55 Would you like to comment on that?

Mr Cain: Before the trial? (The Chairman: Yes.) I think that is unavoidable; people do not know if they are going to be called to be on a jury and they may well hear stories. On the Isle of Man it is not just social media, it is just gossip, isn’t 60 it? And that is just as relevant on the Isle of Man, to be honest. But I would have thought that both of those issues – gossip, people talking in such a small community – and people looking at social media and getting information from that, which might prejudice their views of a case. I would have thought that, again, has to be dealt with in the traditional way where a juror is called and they are asked, ‘Do you know anybody involved? Do you have any information about 65 this case?’ And if they say, ‘Oh, yes, I have been following it on social media and I have been talking to my neighbours all about it’, there may be a case for the juror to be excluded. I think it is the same process, perhaps, where you say, ‘Do you know any of these people?’ And it is simply a conversation. And I think the Deemster has to take charge of that process – 70 which I think is what happens now. So, yes it is very serious but I do not think it threatens the whole system. I think it is just something that the courts need to be on top of; but I do not have any reason to think that they are not.

75 Q292. Mr Malarkey: Going back to the gossip and going back to the fact that we are a small Island, would you not agree that when a jury is sworn in and then they are sent home for the night – and at that stage they know who the accused is – (Mr Cain: Yes.) they only need to pick up their laptop or their iPad, or whatever, and google that name and if that person has got a record it will be bang, bang, bang right in front of them for them to read.

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80 And they can make their minds up on that, ‘Oh, that is a bad boy, he must be guilty’ – because multimedia today on a small Island has given them that. You probably would not get quite the same thing in England, with the population size and everything else, the odds are not knowing who somebody was, etc – but certainly on an Island where we are a tight community ... And it is one thing, a bit of gossip and knowing somebody 85 because you have talked about it down the pub, it is another thing being able to go into Google, put somebody’s name in and if they have been in court in the last however many years, their names, headlines and everything else comes up. And that could influence one jury member.

Mr Cain: It could, it is a risk and that risk exists; but how do we deal with it? 90 Do we deal with it by saying we should not have juries any more? I do not think so. I think we deal with it by … as I said, it is down to the Deemster to direct the jurors not to do this. And I do not know really know what other solution there is, other than locking them up in a hotel without any internet connection for the duration of the trial.

95 Q293. Mr Malarkey: But that directly leads into one member of a jury being able to influence a seven-person jury, against one member being able to influence a 12-person jury. There is a marked difference on how much influence one jury member would have, because they have this information, because they have googled it, etc. Without majority verdicts, that one person – who is determined that this person is guilty 100 because of the records they found on the internet – could then be the one person that says, ‘That guy is guilty’, when the other six people say he is not guilty. And then it is a retrial. (Mr Cain: Possibly.) But if it was a majority verdict, or a bigger jury, they would not have the same influence.

105 Mr Cain: Well, yes, that is true. I think that is a different point, about the size of the jury –

Mr Malarkey: But it all goes hand in hand, I think that is why the Chairman wants us to take the three together. 110 Mr Cain: I take the view that this social media risk is a risk which applies all over the world, and it really has got nothing to do with the size of the jury. We do not know what goes on in a jury room, it is a fundamental principle that the jurors talk to each other. And we do not know ... maybe if somebody did that and had looked up something 115 and found some information they thought was relevant, they might well mention it to jurors and they might all know about it. (Interjection by Mr Malarkey) That is an equal risk. There is no answer to this, it is a risk that people will go home –

Q294. Mr Malarkey: Would you not agree that you reduce the risk by increasing the size of 120 the jury, or introducing a majority view?

Mr Cain: Well, ironically, if you increase the size of the jury you increase the risk of them doing it, because there are more of them to do it. If you have got a smaller jury you can be more controlling – and the Deemster can be more explicit, because there are fewer of them to talk to. 125 Mr Malarkey: That is going to lead us on to more questions that are coming anyway, with small juries.

Q295. The Chairman: Do you want us to leave the word ‘controlling’? (Laughter) 130

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Mr Cain: At the end of the day, my view – and it is the view which has been expressed to me by members of the society – is that the core concept of a jury is that it is a group of people who are given the responsibility to make a decision, and we have to trust their intelligence. I mean, if they are mentally unable to act they are not able to sit on a jury, so by definition a 135 juror will be a normal person who will be able to listen to the case and listen to the directions of the Deemster; and we have got to give them credit for being normal, sensible people – that is the principle. At the end of the day the whole system is based around having normal people, who will behave like normal people – that is the whole point.

140 Mr Malarkey: But normal people can be influenced, you know that is life –

Mr Cain: Exactly. But in any jury the dynamics will be determined by the individuals.

Mr Malarkey: That again leads us on to other things that we will come to. 145 Mr Cain: I think that social media is a risk. I think it would be a problem if anyone thought for one moment that it was a risk that people were not aware of; but I think the courts are fully aware of it.

150 Q296. Mr Malarkey: We had a very interesting comment from Dawn Jones and from the other members – and you must have heard it in the press this week – that they consider the influence of social media, and the Police, was very dangerous, and it could be very dangerous towards appeals, etc. What is the society’s view on that? Is that just a comment made by herself or is that 155 something that the Law Society would agree with?

Mr Cain: I do not think that is a position that the society has a position on; that was her view, and that is all I would say on that.

160 Q297. Mr Malarkey: So your society is distancing itself from that comment?

Mr Cain: No, not at all. I am just saying that is a statement that she made, and it is not a statement that I would make because it is something that she felt –

165 Q298. Mr Malarkey: When she made it, her other two colleagues actually backed her up in here at the time, and we ended up with three of them all agreeing with what she was saying. So I find it a little bit surprising that you are saying that the society does not really have any issue with it.

170 Mr Cain: I think I would say, very simply, that the reason I am here is because I am President of the society. I have taken the views of lots of members and I am hoping I will be able to express those. I am not a lawyer who goes to court and I am not personally experienced in trial juries in the way that the members that you met last week are; and in the conversations I have had and the 175 written representations I have had with many members it just was not something that was raised. But that has not in any way diminished what was said by those members – it was just not something that I had heard.

Q299. The Chairman: Mr Cain, if I can just challenge you a little bit, because you came quite 180 strongly challenging the question that I posed about challenging the integrity of the jury. Where I am not clear after that – and I understand what you said there – is the degree of concern that you have got about it. Can I put it in a challenging, but respectful, way that you are

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giving the impression to me on behalf of your members that perhaps there might be a degree of complacency amongst your membership on this subject, insofar as sub judice came in for very 185 good reasons, and professional journalists and the media generally understand and respect it. Those engaged in social media on an individual personal basis may be completely oblivious to the concept of sub judice, and therefore may conduct themselves in a way that is improper, but done innocently. Now, with that background, then, I ask you to consider the difference in circumstances 190 between us here in the Isle of Man and the UK. In the Isle of Man we have small juries, we are a very small community and when a trial comes up there is a reasonable chance that the person may be well known, and the people who are on the jury may be known. So there is a degree of knowledge there which can only be further exaggerated by social media. You compare that to England and Wales, where a case that perhaps emanated originally in 195 Manchester may end up being a court case in Leeds, the trial judge may be in that court for the first time in two years, the jury are drawn from goodness knows where, so there is an anonymity that we do not enjoy here. (Mr Cain: Yes.) And so, for example, if there was a situation where there was a drugs trial over here and the controlling heads and minds were in Manchester or Liverpool, and they understood that all I had 200 to do in a trial in the Isle of Man was to target one person, I would put it to you it would be a lot easier for them to do that in the Isle of Man, than it might be somewhere else. Do you think, given those two points about the purpose and intention of sub judice, and the dangers that people's behaviour with regard to social media, and the localness and the immediacy and the contact that exists on the Isle of Man, when brought together create a 205 greater degree of potential risk than the UK, or England and Wales? And yet it is England and Wales that have taken the trouble to bring new laws in. In those circumstances, can I challenge you: do you not think your views are erring, perhaps, towards complacency?

210 Mr Cain: I do not think I am being complacent. I think that with any jury there is a risk. There is a risk that one of the jurors, or all of the jurors, do not do a good job for whatever reason – maybe they are biased because of information they have got on social media; maybe one of them has got a particular reason to disrupt the proceedings, for whatever reason; maybe there is a connection with a defendant or 215 with a party that is not disclosed. There is a risk of all that. There is a risk of a juror being influenced illegally. There are all these risks – and there always have been. On the Isle of Man the jury system, by definition, operates within a very small community; so I think it would be complacent to ignore those risks and pretend that they are not there. But I do not think there is a magic solution to this – we are a small community. 220 Mr Malarkey: Well, that really leads on to jury size, then I think, Chairman, to a degree?

The Chairman: Yes, go ahead.

225 Q300. Mr Malarkey: The very fact that we are a small community and that it could be influenced because of the size: would you not agree with a larger jury there would be less chance of being influenced by these matters?

Mr Cain: Are you talking about the risk of an individual juror being influenced to act 230 improperly?

Q301. Mr Malarkey: If I could just expand: my feelings, going back through some of the original Select Committee meetings we had, I mentioned cases where a dominant member of a jury could influence the other seven members. (Mr Cain: Yes.)

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235 And then we spoke last week to Dawn Jones and we were discussing who should be on a jury, and at the time they said, ‘We do not believe lawyers should be on, because a lawyer could influence the other six members of the jury.’ (Mr Cain: Yes.) But just as easily a dominant person – male or female – could also take control of the jury, especially if it is a small jury. There is less chance of that happening with a larger jury. 240 Would you agree with that?

Mr Cain: Yes.

Q302. Mr Malarkey: You would? 245 It goes a little bit further, because then the conversation goes on to jury nobbling, or nobbling one particular person in the jury.

Mr Cain: Yes, my view is the whole point about a juror system is that you select a group … well, it is almost a random selection. But a group of people are brought together, and however 250 many there are is not the point. The point is that we get a group of individual people and we give them the authority to make this decision. And you can look at all sorts of studies on the way in which groups, and the dynamics of groups, operate and often there will be a natural leader who will emerge from any group, in any setting. And in any setting in a jury there may be one individual who is the natural 255 spokesperson and that may be for a number of reasons. I think that whether you have 12 members on a jury – or 10, or seven as we have here, or 15 as I think it is in Scotland – however many you have, the same issues are always going to be there. You could have one or a number of people inappropriately influenced by outside influences such as social media; you could have one person dominating – and if there is a 260 dominant character they could dominate a roomful of 50 people. So I think that you are talking about issues which are … the whole point about a jury is that you have got a group of individuals and we just let them get on with it. And if it turns out that somebody is dominant, well that is the imperfection of the system because the only other way of getting to the facts … I mean, a jury is there to decide questions of fact and the reason why 265 we use the jury is because we cannot go back in time, sit next to the defendant at the time the alleged incident took place and see what happened. We cannot do that. So we have come up with this system over many years of getting a group of people and saying, ‘Well, hear the evidence and tell us what you think. And your decision will be treated as a fact in law.’ 270 It is all about getting a group of people together and giving them the authority to go off and do that. And I think it is part and parcel of the process that you will have different characters, some will not be interested is, some may fall asleep in the proceedings, some may be absolutely determined on one particular point. It is an imperfect system, but nobody has ever come up with a better system. 275 I mean, sorry, there are other systems, there are systems where you do not have juries, where a judge makes the decision of fact. The classic example of that was in Northern Ireland with the Diplock trials where they abandoned juries because of the problems during the troubles, where they found it was just too difficult to get a jury together and give them that authority. So a judge sat and made the decision on fact, which was quite a revolutionary concept 280 – but they did not have any choice. So there are other systems, but most countries think that the best way is to get a group of people, give them the evidence and let them get on with it.

Q303. The Chairman: I just want to take you back to the point you made about being relaxed 285 – I think that is a fair interpretation of your comments – about the jury being dominated by one person; and here I am going to link the size of the jury with the majority verdict.

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And it is this: if you had a situation where you had a large jury and an awareness on the part of the jury as a whole that actually there was an opportunity to express a different view, do you not think that people would be more inclined to hold their corner and allow a jury to examine a 290 thing more carefully than if there was a small jury and one person was dominating? Because it might be a willingness and the determination on the part of juror number 11 and/or 12 to fight the corner that ultimately might result in the jury thinking differently; rather than from – and if I have misunderstood you, forgive me – the idea that it is okay for a jury of seven that must be unanimous being dominated by an individual? 295 After all, if a small jury is dominated by an individual what is the point of an individual fighting their corner, because clearly they are going to lose the case – they are going to be pressured by the rest to take the line of the other six?

Mr Cain: Yes. First of all, when you described my view as ‘relaxed’, what I am saying is it is not 300 okay for one person to dominate, it is better if that does not happen. The idea is that every single member has an equal say and has an equal part. I have never been in a jury room and I do not know how it works, but I can imagine that there will be situations where there are characters who are more eloquent or more forceful in the way they express their views, and maybe you could say they are dominating. 305 All I am saying is that the idea is you have a group of randomly-selected people and when you get a group of randomly-selected people you will have different characters – and I am saying that is okay. You cannot select them on the basis that there is nobody in there who was a strong character because the whole point is they are randomly selected. That is what I meant by that. I want to just go off and make a slightly different point actually, which is that the comments I 310 have heard from people in the Law Society have been very strongly of the view, actually, that the system works in terms of the idea of having seven members. It is a totally random number as is 12, or 15 – whatever number you come to there are going to be people saying, ‘Where did that come from?’ And there is not an answer, it is just a historic thing where the Isle of Man ended up with 315 seven-people juries before the Second World War. So if one tries to find the perfect number, I do not think that is going to be possible. We have had seven-member juries for many years and the message I have been given is that nobody thinks there is anything wrong with it, it seems to have worked for many years. However, there is not a massively strong argument I have heard that says it must be a majority. I 320 think the message I am getting is that why change the system? By definition any jury system is not going to be perfect, although I think on the Isle of Man there have not ever been any serious miscarriages of justice and that is the most important thing to judge it by. So, the general view is that the system works and, yes, seven is a bit of a random number, but – 325 The Chairman: When we moved originally, there was a practicality –

Mr Cain: Yes, so I understand.

330 Q304. The Chairman: But even then, there was a hesitation wasn’t there, that actually for something serious – like treason or murder – they would retain 12? So even when they did it, not only did they say it was a temporary emergency measure, but they retained it for what they classed as serious. So what you are saying is in the view of your colleagues within the Law Society there is now a 335 view that seven is adequate for really serious cases as well. Is that a fair interpretation?

Mr Cain: No, I suppose it is just a natural conservatism. I am sure that when the jury size was reduced to seven, and they kept the number 12 for treason and murder … that was just a

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conservatism. Those were very serious charges and we must keep the current system – and that 340 is understandable. I think the point I want to make is that there is no magic answer to this; but the question I would ask is why change something that is working fine as it is?

Q305. Mr Malarkey: That leads lovely into my argument against that, which is that was 60 345 years ago when it was changed, and there has been no review into the jury service that I know of for some considerable time. (Mr Cain: No.) And types of crimes have changed absolutely considerably. The Island has not dealt with any major crimes, but in recent years there are more of those creeping in with money laundering and fraud crimes, we are getting bigger drugs busts, we are 350 getting closer to doing trials on the actual big boys in drugs; so it is our job here in this Committee to future-proof juries, not look backwards – but to look forward. So what we have to look at is, could a seven-person jury – and I keep going back to this nobbling bit – be influenced far more easily than with a 10 or 12, with majority verdicts? In the UK if you wanted to nobble a 12-person jury, to go for a retrial, you would have to nobble three 355 of the jurors – you would have to take it back to nine. And at the moment with the seven that we have, you only have to have nobble one, (Mr Cain: Yes.) and then you have got a retrial. Two retrials – and I know it is up to the Deemster – but with two retrials it is normally thrown out. So I am looking forward, not backwards. 360 Mr Cain: No, I appreciate that. I think, first of all, the Law Society is very pleased that Tynwald is looking at any aspect of the criminal justice system; it is very healthy to think about these and discuss the issues about juries. I just think there are so many different ways of looking at it. 365 I mean, first of all, if a jury cannot reach a majority verdict on a trial, normally it is because the defendant is innocent. The assumption that it is because something has gone wrong is missing the whole point. In terms of the issue –

370 Q306. Mr Malarkey: I am sorry, are you meaning a majority verdict or a unanimous verdict?

Mr Cain: Well at the moment, in our system here, if you cannot persuade seven members of the jury to all agree that somebody should be convicted, then that is an indication that the person is innocent. 375 Q307. The Clerk: Sorry to interrupt, Mr Cain, but how do you know that? You know that the prosecution case is not good enough, but you do not know that they are innocent. You just know that some people on the jury think he is guilty and some people do not.

380 Mr Cain: Yes, but the whole point about the juror system is that they come to a finding of fact, because there is no other way of doing it.

Q308. The Clerk: All I am challenging is the assumption that the failure to agree indicates really that the person did not do it; which, of course, we cannot say, can we? 385 Mr Cain: No, but you have got to prove something beyond all reasonable doubt, and if it is not possible to do that then they are innocent in law.

The Clerk: In law, yes, okay. 390

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Mr Cain: That is what we are talking about!

Q309. The Clerk: Yes, okay, but it does not mean that they did not do it!

395 Mr Cain: That is not the point, we are talking about if somebody is convicted of an offence and that is why we have a juror system, isn’t it? (The Chairman: Okay.) The point about nobbling is a really serious one and I do not want to give the impression that I do not think it is very serious, of course it is; but I do not know if there is any evidence that that has ever happened on the Isle of Man. 400 Mr Malarkey: That was very much why in Northern Ireland they moved over to a judge making decisions, because they could not get jury members to actually sit on the juries, if I remember correctly, because they were frightened for their well-being after the cases.

405 Mr Cain: Yes, of course, but there was a war going on so that was a different situation.

Q310. The Chairman: Alright, thank you for your comments on those three items which were all linked. There are a few other issues we would like to charge through and get your thoughts, if we could? 410 Peremptory challenges?

Mr Cain: Yes, the comments I have received on this are that the current system actually seems to be working, although nobody seems to be able to explain why the prosecution have an unlimited number of challenges for which they do not need to give any reason. 415 The general consensus seems to be that probably that is a change that could certainly be justified, that any challenge to a juror by either side – the prosecution or defence – should be, obviously, perfectly allowed, but it should be with a reason.

Q311. The Chairman: A reasoned one? 420 Mr Cain: With cause.

The Chairman: Shall we move on?

425 Mr Malarkey: We agree on that then!

Q312. The Chairman: Well, we are deliberating on it, but we agree. The electoral roll?

430 Mr Cain: I do not think anybody has any particularly strong views on this, other than you need to have a list of people and that is one which already exists, so why go to the trouble of creating a new one? And everybody knows that if you do not fill in the form where you have to write your name and say that you are eligible to vote, well then you are not on the list – and that is an obvious 435 way of avoiding jury service. I cannot believe many people put themselves off the electoral register to avoid jury service.

Mr Malarkey: You would be surprised!

440 Mr Cain: But maybe I am wrong!

Mr Malarkey: You would be really surprised!

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Mr Cain: Well maybe I am wrong!

445 The Clerk: I think, to be fair to you, Mr Cain, we have had evidence – which you have not had the opportunity to read – which indicates that quite a substantial number of people are off the roll who ought to be on it.

Mr Cain: For that reason alone? 450 The Clerk: Well, who knows? But certainly the point is that there are a large number of people who should be serving on a jury and should also of course be voting, but who do not – so they are citizens who are not living up to their full obligations to play a part.

455 Mr Cain: Yes, I mean, if there is a better system, by all means it should be looked at.

Q313. The Chairman: We will move on to exemption from service and circumstances in which people may decline to serve. And I am sure you are aware that some years ago – I do not know how many years ago it was 460 – the UK reviewed it and said, ‘No, this is far too restrictive’, and they broadened it out very significantly. (Mr Cain: Yes.) Do you have any strong views amongst your members about that?

Mr Cain: What I would say is that there seem to be two categories of people on the list at the 465 moment who are not allowed to serve on a jury, and one category seems to be people who might get in the way of the whole system – interfere in a way, not intentionally. So with lawyers and police officers, and so on, I think I can understand why they are not on the list – and I will come back to whether that is a good thing or a bad thing. And then there are other people who are not on the list for a totally different reason which 470 seems to be that their jobs are important. We do not want to take a surgeon out of the operating theatre to sit on a jury, because it is going to harm the healthcare system. That is a totally different reason and I do think that there is a bit of confusion there. And I noticed, for example, clergy are excluded and I do not know why that is the case – I would have thought having a clergyman on the jury would be a very good thing, because the 475 whole point is you get all walks of life and I would have thought they would be very good jurors. But for some reason they are excluded and I do not know actually why that is. So I do think that list needs to be looked at again. In terms of the category that I would say are excluded because they might interfere with the system, I do think that the English system is not right on that – 480 Q314. The Chairman: Oh, right – could you expand on that?

Mr Cain: Yes, I am talking about lawyers actually. I know English solicitors can sit on juries and the irony is all the advocates I have spoken to would love to sit on juries – I have never sat 485 on a jury and I would find it fascinating. And I do not consider myself exempt, I consider myself almost prohibited. It is not something I really do not want to do and I want to get out of, it is something I would quite like to do, but I am being told I cannot. And that is a very important point, because I think that if you had an advocate on a jury the other jurors, within a very short period of time, would all be saying, ‘That guy is an advocate!’ 490 and they would perhaps give undue weight to what he had to say. (Mr Malarkey: Exactly.) And that is unfortunate, and it may be completely unintentional on the part of the advocate, he might want to do the complete opposite from influencing the others.

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But if you have got somebody there who is an advocate I just think the others would be influenced – and it is unfortunate. And it is the same with a police officer, or a judge – I just think 495 it is wrong for them to be there because they would contaminate the process. So my view is that advocates should not be allowed to serve; and it is not because we want to get out of it, I think most of us would really enjoy the experience and find it very interesting. But I am sure it would interfere with the whole purpose of it, which is you have got a group of people who should all be treated equally and should all be allowed to get on with their decision, 500 without giving undue influence to any individual people there.

Q315. Mr Malarkey: It comes back to the dominant member of the jury again, especially when it is the seven-person jury.

505 Mr Cain: I would say again, I do not think it has got anything to do with the number of jurors. I think if you have got a dominant personality it is unfortunate. I think the whole point about a jury is they are a group of individual people and you will have all sorts of characters – and that is fine, we cannot do anything about that. But what we can do is say we are not having any advocates on there because they will get in the way of people’s thinking, because people will – 510 rightly or probably wrongly – think that they know more about the process than the other members. And, as I said, police officers and people involved in the court process.

Q316. Mr Malarkey: There are obvious people who should not be on it, like prison officers because they might end up having the people in there … (Mr Cain: Yes.) 515 But what about doctors and nurses? Why are they being – ?

Mr Cain: Well, I personally think they should all be able to sit as jurors, and then they may be exempt – not because they are on a list of people, but simply because they say, ‘I can’t do it because I have got to go to work, and if I do not go to work my patient might die.’ 520 That is a totally different point though, and we have already got the system in place that if people have got a very good reason why they should not be there, then they may be able to get excused.

Q317. The Clerk: In other words, turn to another system which is not based on automatic 525 status-based exclusion, but exclusion for reason?

Mr Cain: Exactly, yes, because there may be doctors who may actually be available.

Mr Malarkey: But there are many types of doctors who might not actually be practising 530 doctors or surgeons. (Mr Cain: Exactly.) There are lots of other doctors.

Mr Cain: My view would be that the people who should not be allowed to sit as jurors would be advocates and people involved in the criminal justice system.

535 Q318. The Clerk: Do you not think that an advocate such as yourself, who is not active in the courts and therefore is not going to be personally embarrassed … Mrs Jones, clearly, would be because she might well know the defendant, she might know the witnesses, she would know all the police officers –

540 Mr Cain: Yes, and she would know the process.

Q319. The Clerk: And she would know the process, and so therefore she would say, ‘I am a criminal advocate, and it is not appropriate’. And the courts would say, ‘Fine, we agree’ – and, probably, defence and prosecution would challenge her for cause.

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545 But you, on the other hand, being an advocate, would know the importance of the jury and actually you would not seek to dominate, would you?

Mr Cain: No, I would not at all. Maybe I am an example of somebody … I am not somebody who has experience of the 550 criminal courts – well, not for many years – and I think I would be a great juror! But the trouble is, would the fact that there is an advocate there cause the other members of the jury to defer to that person? And that is a risk, because you would want to do all you can to keep it equal; as I said, subject to the inevitable fact that you have got a group of different characters – some of whom will be 555 strong characters some will be quiet, etc. I do not have very strong feelings about it, but my sense is that putting in advocates, police officers, and people involved in the system –

Mr Malarkey: There are certain groups. 560 Mr Cain: There is a risk of disrupting the whole concept, which is that you have got a group of people who should all be treated equally.

Q320. Mr Malarkey: Especially on a small Island. 565 Could we just move you on? What is the society’s view that over 65s are not allowed on a jury?

Mr Cain: I do not think there are any strong views on that; but it seems a bit out of date.

570 Q321. Mr Malarkey: There has been nothing coming back from the society?

Mr Cain: No, no strong feelings on that. I think there is an age limit now for Deemsters, isn’t there? (The Chairman: There is.) Which is 70 – is that right? 575 Mr Malarkey: Yes.

The Clerk: We are all of an age where we feel 65 is quite young, actually!

580 Mr Cain: Yes, absolutely. I do not think there is a strong feeling about that; but if somebody is infirm and unable to, they would probably not be able to sit anyway – but not because of their age.

Q322. The Chairman: Was your expression of view with regard to exemptions – particularly 585 advocates etc. – and your concern about the UK’s position, based upon your assessment and that of your colleagues, or was it perhaps based on actual cases in the UK that you have observed and been concerned about?

Mr Cain: No, just my feeling ... well, maybe it is different in England, actually, on reflection. 590 On the Isle of Man it is such a small community ... there are not that many advocates in England, there are hundreds of thousands of solicitors, and maybe it would not be such an issue there. I think what I mean by that is it would be a mistake to follow that particular lead.

Q323.The Chairman: If you had a larger jury perhaps it would be very interesting to have two 595 solicitors with different views on the same jury?

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Mr Cain: Yes, but again it would be a problem there, because everybody else would sit back and listen to these two people debating.

600 Q324. The Chairman: Alright. We are running out of time and so I must push this on, although it is fascinating to hear your views. But there are two points which I will put together – and it sort of comes out of this. Is there a case for having specialist jurors to sit on complex fraud cases, particularly with us being a finance sector? People understanding the concept of messing about with derivatives and 605 things like, it that can get very complicated.

Mr Cain: I think the views I have heard on this are that there are actually differences of opinion amongst members, and I would not pretend that there is one view on this. Certainly, everybody agrees that it is wrong to have a mixture of specialists, or experts, and 610 ordinary members, because they would feel intimidated. And there is also a view that actually we do not need to worry about it because we do not have any complicated trials.

The Chairman: We hope! (Laughter) 615 Mr Cain: But in fact, one of our members, specifically – and it is somebody who has a lot of experience in trials – was of the view that it would be a good thing for highly-complex financial cases to have a specialist jury of people who are involved in the industry. So there is not any one view on that; but, as I said, the one thing on which there is definitely 620 a view held by virtually everybody is that it is wrong to have a mix of specialists and normal people. But the only thing I would say as well on this, is that I do think that the legislation – if it is to be changed – that it could just create more flexibility. I do not think we need to be prescriptive on this – we can give the courts a lot of discretion on this. And if you have a case which is very 625 complex, maybe you could have a procedure where one party could apply to the Deemsters, to actually ask for a specialist jury and then the courts are given entirely the discretion to decide on how to do it. I think that is maybe an option, because I do not think we need to be prescriptive.

630 Q325. The Chairman: Thank you very much. We will move on to payment for service. Do your members have any particular views with regard to that?

Mr Cain: Not really, other than it is a really difficult question. I think at the moment you get, 635 is it £56 a day – is that it?

The Clerk: It is slightly less, I think it is forty-something. It is a trivial amount, everyone agrees.

640 Mr Cain: Is it? Yes. I think that one thing to be avoided, would be where you have got people sitting around and some are being paid x and others are being paid less.

Q326. The Chairman: Why? 645 Mr Cain: Because say, for example, they are just paid what they are earning in their day job, I think that might cause difficulty.

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Q327. The Chairman: Well let me put this scenario to you: suppose it became increasingly 650 custom or practice for businesses – and particularly where you had a larger number of people available for jury service, the potential hit on any given business would be diminished pro rata, the risk of losing a member of staff to a jury. If it became custom or practice for most businesses to recognise that they should continue to pay their staff, wouldn't that leave the system in a better position to focus more money on 655 those who would be really stressed by being on a jury such as, for example, somebody who had recently started a business up? (Mr Cain: Yes.) And if they were paid significantly more and the rest carried – because they would not be paid if they were not working – they are a different kettle of fish to those people who are already paid – 660 Mr Cain: I think there is a lot to be said for having a system which has much more flexibility where there is discretion for certain jurors to be paid discretionary amounts. It is tricky, there are lots of different views on this. I think having a discretionary payment system might be a good thing because otherwise the 665 reality is, if you have got somebody who runs their own business on their own – tradesmen for example – they are going to be distracted. They are going to be sitting there thinking, ‘I shouldn’t be here, I should be doing my job.’ And it is not helpful to the whole system. And yet we do want to have people from all walks of life on juries. So maybe we do need to look at having a much more flexible system? 670 The Chairman: You might be tempted to believe that that person could take the view, ‘For goodness’ sake, let’s get to a verdict quickly here; I'll go with the majority.’ I am being unfair, but it is possible!

675 Mr Cain: Yes, you are right – it is a risk.

Q328. The Chairman: Right, time is ticking on. Thank you very much for taking the time to talk to us this morning. Have you any closing remarks that you would like to make, before we move on? 680 Mr Cain: No, I think I have said everything I thought I would need to say.

The Chairman: Mr Cain, can I say thank you very much on behalf of us for being here this morning, we appreciate your time. 685 Mr Cain: Thank you, you’re welcome.

Mr Lewin and Mrs Fletcher were called at 11.10 a.m.

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EVIDENCE OF Mr Mark Lewin, Director of Government Technology Services, and Mrs Della Fletcher, Executive Director External Relations, Cabinet Office

Q329. The Chairman: Good morning and thank you for attending this morning. You know Bill Malarkey and Mr Phillips. 690 So Mr Mark Lewin and Mrs Della Fletcher, thank you very much for attending. I am sorry we have kept you waiting, but we did try to get through the first session as quickly as we reasonably could. I tried to help as much as I could for this morning’s session by sending you an email, Mark, on 5th March and perhaps what we could do is use that as a critique for you to expand on your 695 questions and thoughts that we have put before you. But before we do that, because we have got Della – Mrs Fletcher – here this morning, I just want to ask a couple of questions with regard to the electoral roll as you see it at the moment, Mrs Fletcher. Perhaps you would like to enlighten us about your current views?

700 Mrs Fletcher: Okay, first of all can I just thank the Committee for allowing Mark and I to defer from coming last week, due to my personal issue – I appreciate that, and I just wanted to start with that.

The Chairman: No, not a problem. 705 Mrs Fletcher: The electoral registration system was transferred to Cabinet Office on 9th June 2014 and it came with a lot of unusual aspects to it. And I think in summary, to answer your question, Mr Chairman, it is outdated legislation, it is not functioning as it should be, and we have been doing quite a bit of work around that. Our experience to link the electoral register to 710 the Jury Service has been that people are unwilling to register because they are trying to avoid jury service and they do not want to vote. We have tried to update as best we can within the existing legislative provision at this time, we have tried persuasion, encouragement, spoken to people and invited people to register. This time round we have actually been a little bit more hard in stressing the fact that you are 715 required to provide that information – so it is the threat of having to provide it which is eliciting quite a good response rate; but people when they call us, or they come in, they say, ‘But I don’t want to vote and I don’t want to do jury service.’ The most forceful factor for encouraging people to go on, up until this recent round on 1st January, has been because Experian and credit reference agencies utilise the electoral registers 720 for evidence of proof of address – so people are not being able to get mortgages, personal loans or mobile phone contracts unless they can prove that they live at that address; and one of the strongest criteria, certainly Experian and one of the other credit agencies, is the use of the electoral register. So from our perspective we welcome the work that the Committee is doing on jury service 725 because we do see indirectly a link through the role of the Jury Service Committee with how we could actually improve the value of the electoral register.

Q330. The Chairman: Can I explore a little bit the strength of that comment that you have just made concerning, ‘I don't want to be on the electoral register because I don't want to be a 730 juror’? How strong is that?

Mrs Fletcher: I think it is stronger, maybe, from the younger people who do not think about it and from others who are concerned about actually having to participate. On the occasions that

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735 we have spoken to people about it – and we have had conversations, press releases out, and we have talked to staff – we have explained, ‘Well it is your civic duty, it is part of the fabric of our society, as is the right to vote – and, actually, if everybody felt like that it could mean that our system of courts and justice would not operate.’ I do not know, we have no evidence, Mr Chairman, to say that people are just using that as a 740 sop because they are being pressurised into fulfilling that information, so they push back at us sometimes with a little bit of upset when we say, ‘You have to provide this information; the law is quite clear that you have to provide that information.’ And first of all they will perhaps say, ‘Well, I don’t want to vote; I’m not interested in voting.’ And we talk about jury service, and then those who feel particularly upset with us, say, ‘Well, 745 I don’t want to do that, either. What use would I be? I haven’t got the time for that.’ So, I am not sure how much credibility the comments should be given, but I share it with you about some of the reasons that have been given to us in the last 18 months of why people will not go on the register.

750 Mr Malarkey: I would certainly give it credibility, having knocked on several doors over several years.

Mrs Fletcher: But I have not got anything to back it up, so I need to share it with you and it is anecdotal, and I am not keen on anecdotes, but these are people who are calling or are coming 755 in to see us.

Q331. The Chairman: I appreciate that. Before we move on to the issue of data, Mrs Fletcher, is there anything else you would want to add to what you have just said there, about our work? 760 Mrs Fletcher: I think from the perspective of the work that we are doing on electoral registration – and we have started looking at it now – our aim is to make the register be effective; and one of the areas we have looked at is the value of having the jury service linked to the electoral register. Initially we thought about whether it should be separate and would it 765 make sure that the register was more effective. The only way to make the jury list effective then would be to make it a requirement under law, punishable with a sanction. And I think that might sit better with juries, than forcing people to register. But actually it opened up our discussion much more broadly – and you may have been there already – that if we were to separate the two out, we would then have yet another bureaucratic 770 chain and lists, and a database of people who are eligible for jury service. And it took us back – and we have not done much work around this – to thinking, and looking at perhaps the Jersey model, the Citizens database address; why are we averse to having one database instead of 10 or 15 databases for 10 or 15 different topics? All of us provide that data, so if we had an overarching citizens database – and I use that term 775 loosely – then NI records would fall from it, child benefit, education ... all the provisions of Government service could fall out of it and we would have a legislative-acceptable gateway into it, so that we would know that everybody on that database lived at that address and we could just simply send polling cards out at election time. So that is where we are ... I just share that with you. 780 Q332. Mr Malarkey: Yes, before we move on to solving the problem, going back to what we have, and the little boxes when people do fill these forms out and it says, ‘Are you exempt?’ – and I do know people who have ticked ‘Yes’ in the box. Who is checking that these people are actually exempt? 785

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Mrs Fletcher: I would not wish to mislead in any way – nobody. It is based on the honesty of the individual and the fact that they have signed that form off as true and accurate.

Q333. Mr Malarkey: Obviously, it is probably a criminal offence, just like it is not to return 790 the form, but we never take that any further with prosecutions; so, again, the system is totally flawed. Would you agree?

Mrs Fletcher: It may come to light because, of course, now the plan after ... the new register 795 is due out on 1st April, it closes off on 18th March and we are working with Chambers on providing the information of people we think exist who have not returned that information. So those prosecutions, Mr Malarkey, may identify some people who claim to be exempt from jury. But in broad principles there is no check, we depend on the honesty of the individual that they live there, that is their date of birth and that those people live in the house – but I suppose 800 that is not anything different to when you sign your tax forms, or your car licence, and all of that. It would be nice to have the time to check 50,000 households, but it is –

Mr Malarkey: It is just not possible to do –

805 Mrs Fletcher: It is not possible. So if people want to put down that they are exempt, we accept that at face value.

Q334. Mr Malarkey: It is good to hear you today confirming what the Attorney General said when we had him in, that prosecutions are going to come forward. 810 So I will make a point of turning to the member of the press who is sitting here at the moment, that prosecutions are forthcoming for people who have not returned the form – and maybe that message needs to be getting out and about a little bit more than it is, that it is an offence not to return the form.

815 Mrs Fletcher: This week we are writing to people to say, ‘We are taking you off because you have not returned it and we do not think that you live there.’ So we are just checking that part, and there are about 1,300 of those. But for the remaining several thousand, that will be sent to the Attorney General’s Chambers to deal with as a possible prosecution in accordance with how Chambers operates. 820 Mr Malarkey: Thank you.

Q335. The Chairman: Mrs Fletcher, thank you very much. I have to say that the sentiment of the Committee thus far is very much in tune, and it 825 resonates with the views you have already expressed – this thing about having so many different databases, and the cost and the bureaucracy associated with that. With that in mind, we were most grateful to you, Mr Lewin, for submitting your first paper to us; and I hope that our response on 5th March helped you to understand where we were coming from, or trying to come from. 830 So I think what I would like to do is ask you to comment on our email to you and whether you are comfortable with our thoughts, or whether you considered them unreasonable, or inoperable, or overambitious? The floor is yours.

835 Mr Lewin: Thank you, Mr Chairman. I guess, just in starting, to echo some of what has been said before, I think the timing of the questions are really opportune. As part of the work we were doing last year asking the public,

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asking stakeholders around the Digital Strategy, the idea of that we asked for the same information in lots of different places, and we often miss things in terms of connecting pieces of 840 information, and the idea of looking at how other jurisdictions tackle some of these challenges came out as part of that; and we committed to doing a piece of work around what might a names and addresses register look like. It is very early days, so the request from the Committee came in at the right point in time over that. In answering the original question around: is there a more appropriate source of information 845 that could be used to base jury selection upon? We tried to look at some of the challenges with the electoral roll, which Mrs Fletcher has talked about. And whatever the reasons may be, but when you look at the stark numbers of what we believe in terms of economic estimates, or what we believe in terms of looking at GP registrations of people that are resident on the Isle of Man that would be eligible, versus what are actually on the register – there is clearly a significant 850 disparity. So there is something there that is causing that disconnect. If you look, then, at other jurisdictions – and we have listed Jersey, Guernsey, with the local authority of Camden, and further afield – and all have, or are moving towards, this concept of that simple basic citizen register. And I think we have to be very alive to some of the valid 855 concerns about a big data warehouse that has all this information in, that is available inappropriately to different areas. A simple register of basic name, address, date of birth, date of residency that then drives other services, that looks at eligibility for other things to be included in that, that looks at citizenship and some of the mandatory functions that flow from that – of which jury service is 860 one, and voting is another – but there are others as well. Clearly, other jurisdictions are down that route. That is just me saying that, and again I welcome the questions; I think the timing is really appropriate and I think that whilst the Committee … and you make the point that some of the stuff we talk about is much broader than your remit, I do think when we start looking at how we 865 might move it forward then we should take a broader view – because jury service is not the only one that has this kind of issue, if we look at the electoral roll as being the source of information. But then returning to your response on 5th March, Mr Chairman. What I said is that, technically, often the system is the easy bit when we know what we need to do and what are our policy outcomes and what is our scope and what are our rules around how we are going to 870 do this, then we can look at how we technically deliver it. I guess my conclusion in the submission and to what you have now responded, is that there are some big questions to discuss about how you would construct such a register and how you would maintain it, what sits in that space and what rules apply to that. So the question is, on your first point about eligibility we talked about ages so, for example, 875 the electoral register today has one set of age ranges, the jury service has another set – and that is just one. We talked before about occupation and exemptions, and what rigour goes around that; and the more complexity we put at the front door for the register, I guess, the more difficult it would be to make sure that is accurate. And one of my questions is whether that top register should be, as in other jurisdictions, a 880 very simple record of name, address, date of birth, residency; but then the rules that other services might wish to use like occupation, or particular illness at a particular point in time, or other reasons that may exempt people from jury service, would be done at that point of test rather than sitting at the high level.

885 Q336. The Chairman: So, this was really what I was trying to get at, the concept of a subordinate dataset – this one might be electoral roll, this one might be jury service, and so on and so forth. That was my thinking. Am I far removed from where you are trying to get to on that?

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890 Mr Lewin: No, I think that is absolutely valid, that is how Jersey do it and that is how other jurisdictions do it.

Q337. The Chairman: So, when you get to things like eligibility and the like, what we are saying here is that it might be, from time to time, necessary to adjust a sub-dataset because, for 895 example, the age has changed – one day somebody might decide that jury service should go on to 70, or it might be longer. What one is looking for here is a system which would allow that degree of flexibility in a sub- dataset to occur. That is not unreasonable, is it? 900 Mr Lewin: Not at all, no.(The Chairman: Okay.) My starting point, though, was how do you construct that? Is it something that, again, like the electoral register today requires a compulsion on the citizen to tell, to fill a form in, to reply somewhere – whether it be quarterly or a frequency to be determined. Or is it something that is 905 constructed from existing sources and based in a clear legal framework? Some other jurisdictions take that approach.

Q338. The Chairman: I think our thinking was that the less work you had to do on all these subordinate datasets, the more efficient the system would be; and there should be a capacity 910 within those subordinate datasets to inform other sub-datasets where it is appropriate so to do. I could not think of another word, but I think I used the ‘primary personal codes’. I do not know what thoughts you have attached to the senior outline list. But if that changes then it would automatically adjust the sub-datasets as it went along, and nobody would have to do anything. It would occur. 915 Is that again reasonable?

Mr Lewin: I believe so, Mr Chairman, and I think as I said in the note that the idea of having a single register that contains some of that basic information that is used for important services, civic services, mandatory services like this would also be hugely valuable in policy-making, would 920 be valuable in terms of other critical public services that Government provides. And at the moment there is a gap there.

Q339. Mr Malarkey: Would it be possible to get the information you are looking for from a census? 925 Mr Lewin: A census, in the absence of that register, is exactly the way Economic Affairs and a variety of different surveys pull together the estimates – but it is an estimate.

Q340. Mr Malarkey: But you are going to get the age, you are going to get the households, 930 you are going to get the addresses and everything.

Mr Lewin: And historically, the accuracy on a census is believed to be very good.

Q341. Mr Malarkey: And it is a legal requirement to fill in the census, so really would you not 935 just need a change in legislation that allows you to extract that information from the next census, basically?

Mr Lewin: That is one way and again from my perspective it is not for me to comment on the policies and the approach to how you do it, but technically – 940

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Q342. Mr Malarkey: I am thinking of cost, because you have got something you are doing anyway and you have got the information at the end of the day.

Mrs Fletcher: Could I perhaps pick up that point for you, Mr Malarkey? 945 The census is really good but it is only valid at a snapshot in time – and that is the problem. So, on 27th April, it is brilliant and maybe on 1st April – but by June or July, are those people still there? Who has died; who has had new births into the house; who has moved on? I think Guernsey has constructed a census –

950 Mr Lewin: Guernsey has looked at their existing primary records, whether that be medical, education, welfare, infrastructure in terms of driving licences, etc., and they bring that data together on a monthly basis matching the individuals – and they have replaced the names with pseudonyms so avoiding personal data issues. But then they are able to bring these high-value datasets together and know from one month to the next the demographics of the population ... 955 this is what is happening in our society, these are the contributors, these are the consumers of different services. It is slightly different in terms of the ability to have a specific name and a register that they could drive operationally other services, but that is what they are now looking at. Jersey went the other way round and they are a real-time basis, not every five years under 960 the census model, but they maintain that register so when anybody has arrived in Jersey the minute they take up residency, whether it be renting a property or purchasing a property, they need to go and register in one place simply name, address, date of residency, date of birth, etc. So Jersey are moving to that driving the electoral roll, to make sure that everyone who is entitled to be on has been given the opportunity to do so. 965 Q343. The Chairman: So it is a real-time exercise?

Mr Lewin: Yes, it is done at the point where the individual may change their address, or may arrive on the Island or may depart from the Island – rather than, as Mrs Fletcher said, every five 970 years. It is a step forward, but it is not really –

Q344. Mr Malarkey: I was looking for starting point and I thought probably that would be a good starting point, obviously it is going to have to be real time after that, and updated. 975 Mrs Fletcher: I am not sure if you know, but did Jersey actually call theirs some sort of Citizens’ Name and Address Act, where everybody was just required to do that? Or did they draw down – ?

980 Mr Lewin: They already have legislation from a housing perspective, when somebody becomes resident they have to register. What they have done is expand that legislation under the States Assembly to say that, ‘We can use the register for health screening, so let’s make sure if we are trying to do a programme of checking certain age groups, that they have been for screening, we are going back to the core register to check we have got everyone.’ 985 And they are talking about, again through the parliament, making sure that they use that as the basis for the electoral roll. Again, when we look at the questions that the Committee came with, we looked at the different sources – GP registrations, driving licences, National Insurance, etc and Economic Affairs estimates – and the gap between the electoral roll of what is believed to be there and 990 what is actually there, is quite significant. So the simple answer to the Committee’s first question of whether the electoral roll is a valid basis for building of the things around, you have to question the veracity of that.

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Q345. Mr Malarkey: And I think that for the sake of Hansard, some of the figures you came back with were quite frightening when you estimated for ages 16 years to 65 years, there were 995 30% missing off that list – that was for voting purposes – and for those eligible for jury service you go up to 40% missing between the age of 18 and 65.

Mrs Fletcher: Just to help Mr Lewin out, we provided him with those figures in order to try and assist the Committee. ‘Estimated’ is a very good word, but it may help the Committee to 1000 know that the register will be closed off on 18th March and we will have a new register on 1st April, and we would happily give what we hope will be less of an estimate and a much more accurate figure. We can provide those for you on 1st April and try and break it down around jury exemptions and ages, if that would help? 1005 Q346. Mr Malarkey: That would be helpful, because this was quite frightening when we saw those figures coming through!

Mrs Fletcher: And also, we were still in the process of amending systems and re-driving 1010 people on, so we offered it to the Committee but I wanted to caveat it for you that it was an estimate and that was our information that we asked Mr Lewin to pass on, not something that he had drawn upon. But we will come back to you close to 1st April.

1015 Mr Lewin: Yes, and it will be revised, but there will be a gap.

Mrs Fletcher: There will be a gap, yes, definitely.

Mr Lewin: That is the point to what we were trying to say. 1020 Q347. The Chairman: In your experience of these various developments that you have been talking about – and it is fascinating to hear it – are they generally migrating towards the concept of using aggregated, anonymised information to lead policy development in a variety of areas? Is that actually happening in both Jersey and Guernsey? 1025 Mr Lewin: In the response, we outlined four levels, just by way of example – there are many other different models. Guernsey anonymise the information, it is really for policy – so it is month to month to understand what is happening so they can plan and make evidence-based policy. 1030 In Jersey, it is a personal name and address, it is personal data and it is used for operational, but it is also used for policy – so the fact that it is there as a housing control is to help understand what is happening. If we go to local authorities in the UK – and we have listed Camden as an example – they have the complexity of the Guernsey model. So Guernsey take 10 systems together and Camden 1035 take 16 key – they leave the names and addresses in, they match them together and they look operationally. They can look at fraud, where they can see an individual is appearing in three, or four, or five places with one address, but appears somewhere else … whether that be fraud or whether that be error, but they can look at it for that. They look at it to make sure an individual who might be eligible for certain services but currently has not applied, so they will go out and 1040 offer those services – very much wrapping services around the individual. Then we go to other jurisdictions in Europe, in particular, where Estonia is often held up as the vanguard, it is illegal for the state to ask for the same information from a citizen if it already has it; so it really forces the state to be efficient, it forces the services to be efficient and reuse and join up that information.

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1045 I think we are a long way off that today. The work we are doing in the Digital Strategy around the likes of Health, recognises that there are pockets of information in primary care and community care and acute care; and one of the key benefits of transforming Health, one of the strategic outcomes is from a patient perspective to be able to join that up, and from a clinician perspective and a care perspective to be able to join that up – that is a whole journey, that will 1050 take time. Money in itself is a challenge in that one space, when you then look at other jurisdictions – and there have been attempts in the UK to talk about joining some of these datasets up – and there have been some real valid concerns about Health data, because it is hugely sensitive and it has to be very tightly controlled. I think what we are talking about here in terms of the idea of 1055 the electoral roll and that is the basic administration of public services – that understanding of who is resident on the Island, and who is consuming basic public services. It is not about Health data, it is not about criminal justice, it is not about some of these sensitive tax – but at top-level it would be a real enabler to some of those ancillary services to check that we have got the right services applied to the right people. 1060 Q348. Mr Malarkey: Are you aware of any jurisdictions where there have been leaks or breaches, or where there has been legal action because data has leaked, or even sold on to third parties, in any other jurisdiction? This is what the public will be most concerned about, of any data that is being collected. 1065 Mrs Fletcher: From the higher-level principle?

Mr Malarkey: Yes, from the higher level.

1070 Mrs Fletcher: I am not sure.

Mr Lewin: I think the electoral roll is, as Mrs Fletcher said before, already owned by a number of different institutions – it is purchased, it is used in different ways, it is relatively accessible. To extend that to include the date of residency, etc. is I think what we are talking about here. 1075 It is not, as I say, the real sensitive information around health or welfare. But, yes, there are obviously jurisdictions and there are lots of documented cases of data breaches and information being leaked inadvertently. And whatever we do, going forward, data privacy and the rights of the citizen absolutely have to be paramount.

1080 Q349. The Chairman: Mr Malarkey’s question brings us on to this issue of ownership and transparency, and if I could just explore that with you a little bit? If I have understood your comments so far, we are talking about unique, personalised datasets in areas which are very sensitive; in the centre we have got ... you could almost call it the skeleton, really, the outline. 1085 How do you see – and this takes us back to your points about data protection – the transparency and ownership issues? And, by ownership, I mean the citizen owning the data and controlling it. How do you see those things being reconciled?

1090 Mr Lewin: One of the questions I replayed back in the response is that for jury service or for the electoral roll do we start with the presumption that it is a mandatory obligation on the citizen? Or do we start on the basis of it is an entitlement that the citizen can apply for? I think that drives the answer to that question, because if it is mandatory – and we can already create that information from somewhere else – and we validate it with the citizen, it is a 1095 process it goes through, so it is validated and checked and confirmed. But that is a different process to the one we currently have where, whilst there is legal remedy if somebody does not

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fulfil their obligation, it has been very difficult to pursue that and, as I said before, that may change going forward. But that is not necessarily the right solution, in my view, in terms of getting that accurate list 1100 if we believe it is a mandatory obligation on the citizen to be listed as eligible to vote; to be listed as eligible for jury service; to be listed as eligible for these other services – then requiring them from scratch to fill in a piece of paper and tell us information that we may already know, that then has to be translated, checked and validated. It is never going to be accurate. I think that one of the real questions around the data privacy, is the right to be forgotten. 1105 There is a lot of debate in data privacy terms about that. Do we – or does the Committee – foresee an ability to be forgotten and not participate in these services? That to me is one of the key questions.

Q350. Mr Malarkey: Sorry, you do not have that facility for the tax office do you – the right 1110 to be forgotten? You cannot just tell them, ‘I want to be forgotten for tax’.

Mr Lewin: No, but increasingly a number of people are being taken out of the tax process so once they have dropped out … My understanding is that a number of years ago the tax would be a very accurate record of the whole working population, and indeed it was more broad than 1115 that; but increasingly as people are taken out of the tax system then that is again not going to be a pure source of complete record.

Q351. The Clerk: But everybody has a National Insurance record, because whether they actually pay or it is just credited, they still have to have that, don’t they? 1120 Mr Lewin: My understanding is with effect from the last two years, it used to be people at 16 were automatically given one, but two years ago as people were taken out of the tax system and we no longer automatically allocate, we rely on the individual to request. So it, again, will not be fully accurate. 1125 One of the benefits of the Jersey model based on residency, is the migration in and out of population so you have to do it at the point of where circumstances change. National Insurance, even where they are on the system, it could be up to two years if you are moving to the UK, or coming to the Isle of Man, it is not necessarily up to date – there is that window to bring your affairs up to date. 1130 Q352. The Chairman: Does the Jersey system allow a prompt where a dataset becomes out of use? In other words, nothing has happened linking to it – does it flag up a question saying is this person still here? Or is this a dead dataset? 1135 Does it do that?

Mr Lewin: I do not know, Mr Chairman.

The Chairman: Alright, that is fine. 1140 Mrs Fletcher: Just on those points, though, Mr Chairman, we have been doing some initial work and I cannot remember which jurisdiction – I want to say Jersey but I am not sure that is right. But there is a country – and I can come back to you on this – that actually you cannot have 1145 access to any service at all unless you are on the citizen database. So just thinking about the citizen who wants to opt out, there must be very few people who do not either have a need for education, for the health services, for a doctor, for a prescription; to work, to pay tax, to pay

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rent or to pay rates. It must be very hard to find out how you can completely vanish out of the system, which I suppose is why we go back to this higher level of it. 1150 For every person who lived on the Isle of Man we would require your name, your address, your date of birth and the date you took up residency, because that would sit beside the 10 years’ housing, for five years’ benefits, for work permits – they all interplay. Quite simply, in the conversation I had, this individual said, ‘So if you wanted to go along to the local library and sign up you could not, unless you were on the citizen’s database.’ 1155 Q353. The Clerk: You may be thinking of Estonia.

Mrs Fletcher: I think the conversation started with Estonia, but I do not think even theirs is as polished as that one. But I will come back to you on that because for us, we were thinking about 1160 what would the sanction be, what would the stick be, or what would the carrot be – however you want to encourage it. But who on the Isle of Man, do we feel – this is how our conversations have been going – would not in some way, shape or form have a link into a service which is provided? And, as Mr Lewin identified for policy, so we know that in 10 years’ time we will have 80% of the population 1165 be over 65 and will need nursing homes and residential care. So how do we plan for that? So we could draw that data simply from date of birth, and also from the fact that we know that they were still on the Island; and for school planning, and for housing planning. But it is really going back to that sanction and we have really struggled with that with the electoral roll, and even trying to encourage people to recognise their moral obligation and their 1170 legal obligation; and even then with it being in the law there are still those people who do not come in. So it has got to be something that they really want to do.

Q354. Mr Malarkey: And I take you back to the census which is a legal requirement, and on that one given day at the end of five years that information is the starting block and it must be 1175 accurate.

Mrs Fletcher: That is in the electoral roll, Mr Malarkey, you are required to return that form. And, again, we trust that the census is right – and that is about the most accurate piece of data that we have – but if you do not put somebody down on that, who is going to go round and 1180 check?

Q355. The Clerk: Well, the state has already decided as a matter of policy that you may not disappear.

1185 Mrs Fletcher: And the electoral register, that the 2006 Act passed through the Branches here, says you are required to provide that evidence. But if people do not – and on our electoral register there has been some complacency over time thinking it is around people’s right to vote, and if they do not want to vote should we be chasing them? But it goes back to the other side of the electoral register which is how it impacts on jury 1190 service.

Q356. The Chairman: It has been a fascinating high-level discussion this, but coming down to the specifics for us and the responsibilities of this particular Committee, Mr Lewin, do you have any comments? 1195 You asked in your questions about the concept of households and I think we came back and we said, does it matter as long as the postcode address is the same? How comfortable were you with the idea that in order to get to the address, the postcode prompt had to come up and thus the recognised spelling and address was very specific? Did that make sense to you?

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1200 Mr Lewin: I think so. Again, other jurisdictions are moving to the idea of an individual-based register for electoral roll and I understand –

Mrs Fletcher: Yes. That is very clear.

1205 Mr Lewin: – that is very much part of our aspiration. And I am just making the point that wherever the form may be, whether it be the census or electoral roll, if it is issued to an individual to fill in on behalf of others, you have got that disconnect – you have got abrogation of responsibility, or an opportunity for somebody not to be able to participate. 1210 So the more we can move it to an individual based ... we can always reconstruct if there is a need to construct what a household looks like for census purposes, or for planning purposes, then we can do that. We do have a very high degree of records in relation to properties and addresses. So, yes, I imagine that is a relatively easy thing to do, to ensure we do not have duplication or 1215 misspelling. But to me, it is some of those bigger questions come first. For example, if we move to the basis of a top level register, do you construct that register at the point of event where somebody arrives on the Island, or leaves, or changes address or changes details? Or is it done on a frequency like the census, which is expanded in frequency, to try and capture? Because that clearly starts with a very clear set of policy outcomes of what we are 1220 trying to do, and needs the right legislative framework, etc. But it is missing at the moment, in my view.

Mr Malarkey: But my view was that if you had a starting block like the census, then even on a daily basis if they are leaving the Island or coming to the Island, at least you have got something 1225 to start with.

Q357. The Chairman: I think when we come to report, we have got to, I am sure, acknowledge and recognise the fact that the high-level element of it is a matter for others, not for us. I think perhaps our assumption would be that we would hope you would be getting on 1230 with it, I hope is a good way to put it? So that anything that we were talking about, our specific sub-dataset in terms of the jury service; and to some extent, leaning over and looking at the sub-dataset for the electoral roll. What I would like to ask you, is that as we are looking at the machinations of whether you should or should not be on the jury list, or exempt, we would hope that ultimately that sub- 1235 dataset worked through some sort of coding allow an immediate recognition, and an automatic print off in certain areas, and I think I have touched on them there. One is age, and you migrate over a certain age and you drop out of that sub-dataset; another one is that you are exempt because of a particular employment. We also looked at the issue –and it has come out on a number of occasions during our oral 1240 sessions – the importance of having a jury balanced across … at the moment it is referenced to sheadings, but the point came, ‘Why can’t it just be a reference to a constituency?’ That is just as non-specific but it is regionalised. Would you have any comment about that? Do you see a sub-dataset working on those lines?

1245 Mr Lewin: Yes, I spend quite a lot of my time challenging and trying to simplify and question why we do stuff, by looking at the rules that we try and apply at the moment in terms of constructing the jury list and trying to build that logic up-front. So as we said before if somebody ticks the box to say they are exempt from jury service, the ability to go and validate that is very difficult. 1250 The more we go and put the rules in at the front door, the more complex it becomes, the more difficult it becomes to validate, to check and to enforce. My question would probably be

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back to, based on balance, would it not be more appropriate to … So if we have got this register, or even today based on the list, to cut a bigger number of potential jurors and then perform your qualification, your balancing, your exemptions at that point in time – because even if I have 1255 ticked as an individual ‘exempt’ on a form today, I may not be tomorrow. If I am eligible today, I may have a medical operation or be off the Island tomorrow. So almost by doing it at the front door it is not going to be fully up-to-date, it is going to be difficult to enforce – and I guess what I am trying to say is my inclination would be to say put your logic and your rules at the point where you need it. It is much closer to the need and closer 1260 to the point and you can –

Mr Malarkey: I totally agree.

Q358. The Chairman: I think there are levels, aren’t there? And if I have understood you 1265 correctly it is choosing the level at which you want to operate the sub-dataset, and other things then become practicalities on the point at which that person is asked, requested, directed to be a jury member – ‘No, I can’t be because of … ’ They are outwith the sub-dataset altogether.

1270 Mr Lewin: Age is a classic one that sits at the top level – whatever is at the top level, date of birth would be there. So the age would be a calculation when you come to cut it. Other things that may change, like occupation or medical status, or availability on Island, will only be relevant at the point where the summons comes –

1275 Mr Malarkey: The same as it is now, really.

Mrs Fletcher: Can I just pick up on that point, just out of interest, because we have started looking at that; and the exemptions, as Mr Malarkey mentioned, how do you check them? I am not sure whether the Committee has looked at the UK system and other places, where 1280 there is no exemption unless you are called, and then you make your case. Also, in the UK you are called for jury service which is quite close to you; well, there are an awful lot of people living on the Isle of Man who would live less than 20 miles maximum away, so what is the definition of close? And we were interested to just hear the tail end of Mr Cain from the Law Society, but in the 1285 UK advocates are called, everybody is called – and then it is up to the legal teams of the two parties to decide who will be on that jury. We found an example recently of a case where a High Court judge sat on the jury. I am not sure that when you sit on a jury – and I have had the pleasure of jury service – but I do not think I could tell you exactly where the 12 good men and true, at the time, all worked or 1290 what their occupation was – unless, of course, the advocate took it upon themselves to make that known and influence it. But my experience was that the judge very much steered the committee and helped with the evidence. But I suppose I go back to the question of, depending on what the case is, why do we remain of the view that people should be exempt, when in other jurisdictions it has proved to be 1295 effective having advocates, doctors, nurses and police officers sitting on the juries? They can bring something to it just like your ordinary individual – and I do not mean that in any way disparaging – can sometimes bring a common sense and a rational thinking by asking the questions that sometimes others who are closely involved ... I just wanted to put that to the Committee, that if there were to be no exemptions and you 1300 were called for jury service, and you were a doctor and you were working on major operations that week, or you were a teacher and you were in the middle of A-level exams, you would have your own mitigation to offer at that point, and it would mean that the option of the exemption ... because unless we actually check out every exemption in whatever system we used and

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whatever subset, would mean that it would need to be verified – and of course, as Mr Lewin 1305 says, it is only verifiable at that point in time. So you may be an advocate, and then after five years you would then fall in. But are we dependent on that person then to remove their own exemption? I am just wondering about changing it the other way. The other aspect just to also mention, at the moment in the UK it is 18 to 70, and the UK are 1310 looking to raise that age to 75 – and I am not sure if that has been put to the Committee either? So I put that in the mix just for your thinking – because that actually spreads the pool. There are a lot of people on the Island who are retired or semi-retired, between the ages of 60 and probably 75, who sit on a number of tribunals for us – quangos and different things – and we expect them to make a very valuable contribution, and many people do. And yet actually we 1315 are saying, ‘But you are not fit for jury service’ – and that is because our current rules which we operate under, the electoral system, are really quite outdated, I think.

Q359. The Chairman: Some of us older ones on this Committee would be very happy to hear comments of that nature. 1320 We were fascinated in an earlier oral hearing to hear about how the sheading assembles elements from that particular place, and it is almost like manually off a list. So you began to imagine a lot of Quirks arriving – metaphorically and literally – in a jury environment; and the question has to be that if you have this sub-dataset that was able to identify which constituency a person was in, that it became possible for an application of random allocation in a way that 1325 spread it across the Island. Is that an unreasonable thought?

Mr Lewin: Not at all, and I think that goes back to address. So the minute we have the address and we know it is right, we can construct sheadings, 1330 parishes – whichever way it needs to be cut, it gives you the flexibility to cut it at that point.

Q359. The Chairman: Okay. I am sure when the Committee reports, it will not want to be anxious to rush its fences, because it wants to sit within a bigger picture and an engagement. Are you able to indicate to us the progress you are making towards that ‘sunny upland’ as it 1335 were? And what would you see us do, or recommend to Tynwald, in terms of moving what we are trying to do towards that? Would you like to comment on those thoughts?

Mr Lewin: As I said before, we did a lot of work over the summer and it is up to date on the 1340 Digital Strategy, on the individual online direct journeys, the programmes for Health, or for Education. We did say we would explore, so names and addresses was one of those concepts to explore and we have started the work to explore – and I would expect that to complete and a report would come back by June time. 1345 At the moment, that is something that I would expect the Cabinet Office to take forward for debate – but it will need debate and it will need consideration. As you said before there are lots of things that need to be carefully thought through on that. Looking at the rights of the individual, looking at the services, looking at what other jurisdictions do, what are some of the concerns that might come. But at the moment, today, 1350 there is no capability in legislation terms, there is no capability in any entity in Government that can do this. So it does not exist at the moment, it does not have the power to exist; so there is quite a bit of work first of all to form the view of this, as something that needs to be done and wants to be done.

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I imagine it would need to go back to Tynwald for debate and discussion, and I would not 1355 wish to presume what the outcome of that would be. But that is the next step, and a report to Tynwald within the next three to four months is probably the likely outcome.

Q360. Mr Malarkey: Sorry, is there a will within Council? Is it something that they want for the future? 1360 Mr Lewin: We have not talked about it in Council. As I said before, the timing of the questioning from the Committee was really opportune, we were just starting that analysis, just starting to look at what the possible may be, and why. We need to replay that and we need to take it through those bodies. 1365 Q361. The Chairman: Okay, two closing questions from me. The first one is, I presume that everything you are doing – and what you have said to us today chimes with the Information Commissioner’s views – and that has constantly been engaged?

1370 Mr Lewin: The Information Commissioner has always upheld the view that any information that needs to be processed needs to be placed on a clear legal framework, a clear legal footing. It needs to be done with real citizen knowledge of what is happening, adhering to the data protection principles. So the idea of having an umbrella register that can be used on a very clear legal footing that 1375 is used with citizen consent, is something that would solve a number of problems and would give clarity as to how public services can be delivered – and be delivered effectively and efficiently. So, yes, I believe without putting words in his mouth, there would be support for that. But it needs to be worked up to. 1380 Q362. Mr Malarkey: Just extending that, then, if the recommendation came from this Committee and it was the will of Tynwald that was the direction to go, could you guesstimate a timescale – are we talking one year, two years, three years, before we get most of the legislation and the information and the system working? 1385 How long would you foresee? I am not going to hold you to the month!

Mrs Fletcher: I think, obviously we would not want to mislead the Committee with just a knee jerk, but we could perhaps go away and think and report back. I suppose just playing that out in my mind and hearing, it goes back to Mr Chairman’s 1390 question about transparency – who owns the data. There is the ongoing work around a single legal entity so if the Isle of Man Government became a single legal entity – and I would look to Mr Lewin here – but would then all the data be held by that single legal entity? Would that all be drawn into one ... ? That is where I am going with the thought, but it is something that – 1395 Mr Lewin: Yes, the question of single legal entity is an enabler, it does not necessarily allow, nor would we seek, to bring all the data together – that is not what it is intended to do. But it provides a platform that could make it –

1400 Mrs Fletcher: – in the future, maybe?

The Chairman: It potentially simplifies it to some degree.

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Mr Lewin: Yes, but we can go away and look at a broad timeline. There is a process to go 1405 through but in terms of the technical ... and, as I said before, with my hat as a technologist, the construction of a very simple register that contains this level of information is not a difficult task. That information already exists in lots of different parts of Government, so construction of it from what we already have is not a difficult task. Whether that is the right way to do it, or whether it is a process where the citizen engages 1410 and has ability to tell us something, to check it themselves, then that has other considerations; but technically it is not a major Health system – so what we are talking about here is relatively straightforward.

Mr Malarkey: That is the answer I was wanting, really. 1415 Mr Lewin: Jersey brought it forward in a short number of years; Guernsey, as I said before, was slightly different – but bringing data in an anonymised form together, they did that really quickly. We can look at that and say ... we have not yet got to the point where we say, ‘This is the 1420 plan, and this is now going through a series of steps’ – this is still a research phase. So, when the Committee asked the question, as I have said many times, it was very opportune because we are forming that up now with a view to coming back to say, ‘These are the options.’

Q363. The Chairman: Fine. Would it be unreasonable for me to ask you to summarise in a 1425 simple bullet form format, how you would feel comfortable with us arriving at certain conclusions? It would help us in our reporting to Tynwald in terms of making sure that what we are trying to form in our minds integrates simply into the bigger picture, rather than making presumptions which are going to clash with it. Is that an unreasonable request? 1430 Mr Lewin: No, do you want me to do that now or off-line?

The Chairman: No, report after this, at some stage –

1435 The Clerk: If you send us a paper that would be –

The Chairman: A short paper. Please do not go into huge detail, just give us the clear directions as you see it from a technology point of view.

1440 Mrs Fletcher: Have you got a deadline report date?

The Clerk: If you could send us a paper in the next fortnight, that would be very helpful.

The Chairman: Any further final thoughts? 1445 Mr Malarkey: No, I think I am very happy with what I have found out.

Q364. The Chairman: Are there any closing remarks you would like to make?

1450 Mrs Fletcher: No, thank you for the opportunity. We are working with the Chief Executive of the Association of Electoral Register Administrators to look at how we can update electoral registration – that will come forward after the General Election. But we will be very much looking towards online registration, individual household registration – and I am hoping that some of what we will be looking at will dovetail in with what 1455 you are ...

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The Chairman: With that, then, can I thank you again for coming this morning. I appreciate, very much, your time and your comments. Thank you.

The Committee adjourned at 12.07 p.m.

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WRITTEN EVIDENCE

175

176

Appendix 1: Email dated 8th April 2016 from J L M Quinn, HM Acting Attorney General

177 178 From: On Behalf Of Quinn, John Sent: 08 April 2016 15:23 To: Roger Phillips Subject: Select Committee re. Juries

Dear Roger

In giving my evidence to the Select Committee there were a couple of matters where I indicated that I would write to confirm the position to the Committee, and I write to address two issues:

1 With reference to applications made in the last 5 years for the number of Jurors to be increased to 12; I am aware of 2 such cases; Vanselow (attempted murder charge) and Shepherd (manslaughter charge). In both these cases, the application to increase the number of Jurors to 12 was made by the Defence and were refused by the Court.

2 With reference to appeals following a jury trial, I provided evidence that I was personally only aware of appeals against sentence and said I would check the position ccononcerning any appeals against conviction over the last 2 to 3 years. There have been 2; in the Anderson case (murder charge) and Dirrom case (theft), both of which were unsuccessful.

If I can assist the Committee with any further detail, please do not hesitate to contact me.

Kind reggardsards,

John

J L M Quinn Esq, Acting Attorney General Attorney General's Chambers, 3rd Floor, St. Mary's Court, Hill Street, Douglas, Isle of Man. IM1 1EU.

179 180

Appendix 2: Letter dated 23rd March 2016 from Mark Lewin, Government Technology Services, and Della Fletcher, Executive Director, External Relations, Cabinet Office

181 182

Mark Lewin, Director Government Technology Services Cabinet Office St Andrews House, Finch Road DOUGLAS Isle of Man IM1 2PX

Tel: Email: 23rd March 2016

Roger Phillips, Clerk of Tynwald

Response to the Tynwald Select Committee on Jury Service in respect of a Citizens’ Database

Further to the written submission to the Tynwald Select Committee on Jury Service in December 2015 and the presentation of oral evidence by the Director of Government Technology Services, and the Executive Director of External Relations, the following is the response requested from the Cabinet Office on the recommended way forward for Jury Service:

A. The current method of using the Electoral Roll as a source for constructing Jury lists cannot be accurate or complete.

o Based on an opt in model via head of household on an infrequent basis, it is always likely to have significant deviations from the actual population at any particular point in time and currently differs significantly from the economic affairs estimates on eligible population;

o Comparisons to the numbers contained in other data sources such as active GP records, income tax returns and active drivers all support the economic affairs estimates and indicate a significant gap between the electoral roll and likely population;

o The Electoral Register is currently being updated and additional statistics will be provided to the Committee after the revised Register is published on 1st April. As outlined in the written submission, using compulsion and awareness only it is still expected to remain significantly short of the actual eligible resident population.

B. The concept of a single central citizen database is considered the most appropriate way forward for producing with confidence a summary of citizens on the Island eligible for Jury Service.

o Such a central list could (subject to appropriate legal and political framework) be automatically compiled and maintained by pooling information from other systems which are far more accurate at any point in time;

o This approach mirrors that of Jersey where a central register exists for all residents (as defined in law) holding basic information (Name, Address, Date of Birth, Social Security Number and Date of Residency) and is proposed to be used as the basis for producing the electoral roll as well as driving health screening.

C. The central register should only contain generic re-usable information with any complex rules being considered downstream within the candidate services.

o The register could provide a cut of residents based on age and location for constructing Jury lists for example, but any further rules such as occupation exemptions, medical exemptions,

183 absenteeism that are specific to the Jury service needs would be better dealt with at the point of need;

o This allows for simplicity in constructing and maintaining the central list and the flexibility to remain within the candidate service to contextualise the information for the relevant purpose.

D. The central register should be easily accessible to the individual citizens themselves to ensure their information is accurate and up to date.

o Allowing an individual to check their own personal details online or at registered location is likely to support confidence and ensure integrity in the information;

o The information should remain private and confidential outside of this self check, with any public record being governed by the relevant policy and laws as a subset (eg Electoral Roll);

o Ultimately in time the ability for the citizen to check their information could also be extended to support their ability to amend their details once and authorise and audit the subsequent re-use of this information – “tell us once” being a strategic aim of many jurisdictions including the Isle of Man.

E. The database will not replace any existing statutory functions, but instead would act as a master record for statutory functions to refer to under appropriate regulations and authority.

o Thus the electoral roll, and Jury Service lists would be separate consumers of such a central list, subject to their own individual policy and legal vires in a flexible form, rather than attempting to fix centrally these rules;

o Tynwald through secondary regulations would always be in control on the policy to which any service could apply to access the register. This mirrors the approach in Jersey with the Parliament retaining all oversight on any use of the register.

F. The database could additionally act as a primary foundation that would support a near time population information system for supporting evidence based policy making.

o Following the approach in Guernsey, a central system could be developed that only holds unidentifiable non-personal information (pseudonyms) joined up from a variety of key systems;

o Such a statistical tool could produce monthly snapshots of the population together with key insights in to demographic groups of interactions as contributions and consumers of public services;

o These refined sets of psydonmised information could form the basis against which policy assumptions and impact assessments could be made.

G. The Cabinet Office should progress a cross Government working group to consider, investigate and propose the principles for a centralised Citizen Database as follows:

o To consider the whole of the Public Service and identify any candidate services in addition to electoral roll and jury service that could benefit from such a central register;

o To consider the method by which the database could be constructed automatically from existing systems to provide an accurate as possible record;

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o To consider the legal framework required to facility such creation and ongoing maintenance;

o To consider the high level costs and plan together with the high level benefits and report back to Tynwald no later than July 2016 with its considerations.

H. In addition the Cabinet Office should separately consider and report back to Tynwald no later than July 2016in the same report any on the potential benefits, costs and approach to using an anonymised expanded version of this central database to act as a foundation for improved central policy making.

Mark Lewin Director, Government Technology Services, Cabinet Office 23rd March 2016

Della Fletcher Executive Director, External Relations, Cabinet Office 23rd March 2016

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Appendix 3: Letter dated 18th March 2016 from Gary Roberts, Chief Constable

187 188 MEOIRYN SHEE-ELLAN VANNIN

ISLE OF MAN CONSTABULARY Chief Constable's Office Police Headquarters Douglas IM2 4RG

Fax: + Email:

Our Ref: GR/SK 18th March 2016

Mr C R Robertshaw, MHK Chairman Select Committee of Tynwald: Operation of the Jury System Legislative Buildings Douglas IM1 3PW

Dear ;1•-••(

I have read with considerable interest the evidence given to you on 4th March 2016 by three members of the Isle of Man Law Society. I thought it important that I should write to you to seek to counter-balance the 'opinions' expressed by Mrs Dawn Jones, who was one of those who appeared before you.

As you are aware, I declined your invitation to submit evidence to the Select Committee. I did not intend any slight or disrespect, but instead I thought it inappropriate that my opinions in respect of public policy matters should be publicly aired. When the time and the occasion is right I will make comment on policy matters, but the integrity of the justice system and the need for it to attract absolute public confidence are so important, that it is best that my views are not subject to public debate. That said, I was grateful for the opportunity to discuss with you in private the workings of the justice system.

I heard and read the extensive media coverage given to Mrs Jones' comments. In her appearance before you she agreed that the police would not agree with what she said. That is absolutely the case.

Whether we like it or not, social media is now an integral part of modern life. Public bodies can either seek to avoid it, usually to their peril, or they can seek to embrace it. The Constabulary has chosen to take the latter course, with its policy being predicated upon three important principles:

(a) that the internet is effectively a new public place, which requires to be policed. (b) that the public has a right to open and transparent public services and (c) that the police have an absolute duty to inform, engage and reassure the public.

The police use of social media has generally been cautious. In a review published in 2012 'Jeremy Crump outlined that the police have not exploited social media to its fullest potential. I would argue that, whilst the Isle of Man Constabulary's approach has been better than that seen in the UK by Crump, even greater use would aid the police in our duty to reassure and to reduce the fear of crime.

Cont/....

I Crump, what are the police doing on Twitter? Social Media, the Police and the Public. Policy & Internet, Volume 3, Issue 4. INVESTORS N PEOPLE 189 -2-

A research paper issued by the US Department of Justice in 20132 highlighted the importance of the use of social media by the police. The report highlighted inter alia the importance for law enforcement agencies having clear, well-defined social media polices. The authors found that fewer than half of all police organisations had such policies.

In the Isle of Man, the Constabulary has a comprehensive social media policy, which was designed by one of the world's foremost authorities in the police use of social media, Jim Gamble, a former Chief Constable, whose reputation is largely unparalleled. The policy empowers officers to use social media for the reasons I have outlined. The policy has been reinforced by a thorough training programme and it is subject to ongoing review. The social media training is supplemented by training in respect of more traditional media management and, coincidentally, senior and middle managers are due to receive refresher training before the end of March 2016.

It is my belief that the Constabulary is a leader in the use of social media. Our reach is wider than that of traditional media, with us having more social media followers per capita than any police service in the British Isles. We also have more followers than there are buyers of local newspapers or listeners to our national broadcaster.

I would be foolish if I were to ignore or gloss over the dangers of the police use of social media. In using social media the police have become a publisher, but then again everyone using social media to make public comment, now theoretically carries all of the responsibilities that publishing brings. The Constabulary has occasionally made mistakes, but those mistakes have always been rectified. However, traditional media providers also make mistakes and I have had to make personal interventions on several occasions to prevent local media bodies from continuing to breach reporting restrictions.

Mrs Jones felt that the Constabulary has no right to indulge in what she termed 'back slapping'. She is wrong on many levels. We have an absolute duty to inform the public of our work, just as the public has an absolute right to know what its services are doing. I suppose the tone comes from the top: if it does, then I loathe self congratulation and I constantly stress to my officers the importance of refraining from self-aggrandisement and the need to accept criticism, or rather, well informed criticism, with a smile. I would also point out that the Constabulary has a policy of not criticising any aspect of the justice process, including verdicts given by juries or sentences handed out by judges.

Mrs Jones also talked about the risks posed by social media in respect of the fairness of trials. I can assure the Committee that the Constabulary is alert to the risks, but the only case in the last decade where social media comments became an issue was in the Holt case, which one of the lawyers mentioned. That case involved the posting of anonymous comments and pseudonymous comments on Manx Forums. The police use of social media has not once been an issue at a trial.

It is important that the Committee should understand what the Constabulary actually released by way of social or traditional media. If drugs are seized, then this information is usually published, with details being given of the type and value of the substances seized. Mention is also made of whether or not any arrests have been made. This is entirely normal and absolutely appropriate. Traditional media are able to report this. If someone is subsequently charged, then this information will be released and it is at this point that reporting restrictions normally apply. At no time at all will the Constabulary identify anyone who has been charged or summoned to appear in court to answer a charge.

Cont/...

2 Social Media and Tactical Considerations for Law Enforcement, Melekian & Wexler, Washington DC 2013 \ INVESTORS Lev IN PEOPLE 190

-3-

It is also important to look at data in respect of the Court of General Gaol Delivery (CGGD). Extensive work has been undertaken by the Chief Registrar, whose officers have compiled a vast amount of data in respect of the workings of the CGGD over the last five years. This shows that almost all defendants plead guilty and that there is often a notable gap between them being arrested and their case being concluded. The possibility of the impartiality of a juror being compromised by a police social media release is therefore extremely remote. The data does not belong to me, but to the Chief Registrar hence my not providing full details of it in this letter.

I would make a further point regarding social media. As soon as a defendant appears in court the media is free to identify him or her. Casual perusal of the local newspapers shows that, even at a time when recorded crime levels are their lowest in decades, reports of court cases makes up a significant part of the news coverage. Indeed it could be argued that this reporting tends to give a disproportionate view of the true level of crime within our community. Once the media has reported the appearance in court of a defendant, then members of the public can and do comment on their own social media pages. Often those comments can be seen by people casually browsing the internet. Technically such comments breach reporting restrictions, but in reality there is nothing that authorities can do. Again, it could be argued that this might compromise potential jurors. However it is again impossible for the authorities to deal with this, other than to ensure that judges provide appropriate warnings to juries.

The real issue concerning social media is this: jurors may readily research the offending history of defendants. This has taken place in other jurisdictions and may even have happened here. We live in the information age and jurors have access to almost the entire sum of human knowledge. Ensuring that judges give proper warnings and having in place proper and effective punishments for any jurors who transgress are the obvious measures that must be in place. Having said this, the Island once enjoyed a large and vigorous printed press, which reported full details of court cases. Almost every adult resident read the local press and, in doing so, learned the identity of those committing crimes. This local knowledge and the population's appetite for 'skeet' never threated the administration of justice.

I declined several invitations to respond to Mrs Jones' comments by the local media. My doing so would have given her comments greater credibility than I think they deserve. A suitable headline might have been —"Defence Lawyer Criticises Police — Shocker!"

However, I felt it important that I should seek to offer some degree of balance to the Committee. The Constabulary gets things wrong, but I feel that there is far more that we do that should attract positive public and political comment.

Social media is here to stay. The real question to ask is this: how do all public services — including the justice system — make best use of it?

Yours sincerely

Gary Roberts Chief Constable

10 INVESTORS LP IN PEOPLE 191 192

Appendix 4: Letter dated 25th February 2016 from Deemster Alistair Montgomerie

193 194 195 196

Appendix 5: Submission dated 22nd February 2016 from Iain McDonald, Information Commissioner

197 198

Response to Select Committee on the Operation of the Jury System by the Information Commissioner

Introduction

1. The Select Committee on the Operation of the Jury System has sought the opinion of the Information Commissioner with regard to :

 The building of a comprehensive database for Isle of Man residents (a “Residents database”) that could be used not just for jury selection but also for other purposes.

 Possible objections in principle to such an approach as well as the necessary protections to be put in place were such a system to be created.

 Possible ways to keep such a database constantly updated through real time interactivity.

2. Some years ago, I held the positon of Acting Chief Registrar and have experienced the difficulties associated with summonsing sufficient numbers for Jury Service. I would therefore agree that the system needs to be improved.

3. The above mentioned difficulty starts with the Lists of Jurors which are derived from the full Electoral Register. Therefore the problems compiling the Electoral Register also affect the Lists of Jurors. I understand that the Committee has been advised that the full Electoral Register contains in the region of 60% to 70% of the Island’s adult population.

4. Therefore if the method of compiling the Electoral Register is improved so that it contains the full adult population then the numbers on the List of Jurors would also increase accordingly.

5. However the Electoral Register is created and maintained for a narrow, albeit important, purpose. In considering methods to improve the compilation of the Electoral Register it makes sense to consider the information required and for what other additional purposes that information could be lawfully used.

Comprehensive database of Isle of Man residents

6. I think it is important to state at the outset that I have been a proponent of a Residents database for several years. Such a database offers an opportunity for the public sector to meet the increasing demand for online public services and to be more efficient in its processing of data.

7. This may seem at odds with the role of Information Commissioner but, in my opinion, such a database, if implemented and used correctly with appropriate safeguards and effective sanctions for misuse, can improve the protection of the public’s personal data.

8. A single central Residents database is somewhat alien to the Island, the UK and Ireland. However such databases are common in other jurisdictions, for example, the Register of Names and Addresses (Jersey) Law 2012 created such a database in Jersey.

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9. It is important to distinguish the difference between a Residents database and a national identity register. To be effective a Residents database does not need to contain a photograph nor is there any need to generate an identity card. The database established in Jersey is not an identity register.

10. A Residents database only needs to contain a record of each individual’s full name, gender, current residential address, date and place of birth. Each record would be assigned unique number.

11. The creation, use and access to the database would need to be defined in legislation.

12. An obvious initial use would be the generation of the full Electoral Register and the List of Jurors. This would require amendments to the Registration of Electors Act 2006 and the Jury Act 1980 and the manner in which exemption from Jury service is sought would need particular consideration.

13. The database could be created from scratch but to do so would require compulsion and would probably encounter difficulties similar to those experienced in compiling the current Electoral Register.

14. It would seem sensible, therefore, to consider what other data sources Government already has that could be used to initially populate the database. The most likely source is the National Insurance Database. This would result in a link between an individual’s record in the Residents database and that individual’s National Insurance number.

15. Once established and verified the Residents database could, subject to further enabling legislation, be linked to other systems, including for example Income Tax via the individual’s Tax Reference Number, the GP system via NHS number, Hospital Records via Patient Identification Number, etc.

16. The benefits that such links bring include, for example, an individual only being required to inform Government of a change of address once. Government would have one definitive record for each resident in the Island, which could facilitate the development of online public services.

17. Subject to design, it could be possible to initiate a query via the Residents database and obtain aggregated and anonymous information to assist in the planning of future services. For example a query could be designed to establish the total number of four year olds living in each primary school catchment area to inform Government of the likely reception year intake for each school in the following year. Records in the Residents database could be compared with the records in the Hospitals Patient Administration System to identify records of individuals no longer resident in the Island and thereby permitting superfluous records to be archived.

18. Potentially the system could negate the need for a census as up to date aggregated anonymous data could be obtained through other queries.

19. The database also offers the potential to better protect individuals. For example at present if a particular function requires one piece of information to be obtained from a system, access is given to the entire system. In future, it would be possible to design queries to extract that one piece of information without the need to access the entire system.

200 20. However, it should be appreciated that the Residents database does not by itself provide such benefits. Instead it is a foundation stone that can facilitate future development to achieve those benefits.

21. Once established other uses of the database will be identified. Given its importance and the potential for misuse, all additional uses should be subject to Tynwald approval. This should not be a simple approval process and instead to allow Tynwald to reach an informed decision, the proposal should be accompanied by a privacy impact assessment and report from the Information Commissioner. (This is consistent with obligations set out in the new European General Data Protection Regulation which, in any event, will have to be introduced in the Island if it is to maintain its adequacy finding.)

Possible objections & necessary protections

22. The obvious objection to such a system will be the genuine and legitimate concern that such a database is a step towards a “Big Brother” state which will result in unjustified intrusion into an individual’s private family life and affairs.

23. Surveys have consistently shown that the majority of people do not trust Government with personal data. This lack of public trust should not be ignored. To gain trust, Government would have be open and transparent in its use of this database. (The Tynwald approval process mentioned above would be an important factor.)

24. To ensure it is not misused it must be properly regulated and access to and use of the database should be subject to independent oversight. In Jersey, for example, the Information Commissioner is also the Register of Names and Addresses Commissioner and has oversight powers.

25. All access to the database should be logged and individuals should be able to gain online access to their own record to determine who has accessed it and for what purpose.

26. There must be effective proportionate and dissuasive sanctions for misuse. In Jersey, unauthorised disclosure of information is an offence that carries a punishment of up to five years imprisonment and a fine.

27. A corporate liability offence similar to that in the Data Protection Act 2002 and other legislation should be included. This offence would mean that senior officers could be prosecuted if it is proven that the misuse occurred due to their consent, connivance or neglect.

28. Similar to those in the Data Protection Act 2002, the Commissioner should have powers to issue Information and Enforcement notices and have the power to instigate proceedings without recourse to the Attorney General.

Updating & maintaining accuracy

29. The aim should be for the Residents database to remain accurate and therefore subject to continuous update. To achieve this there will need to be a range of provisions to ensure the database remains accurate and up to date.

201 These include:

 A requirement for the Civil Registry to report the registration of all births and deaths and any change of name by marriage.

 Individuals should be required to register on the database within a reasonable timeframe of taking up residence in the Island. It could be, that, prior to obtaining any Government service, other than emergency services, the individual must have a record in the Residents database.

 An individual should be required to inform of any changes of name and address and for an adult to inform any changes to the name and address of a child in their household.

30. However, the main challenge in maintaining accuracy will come from individuals leaving the Island.

31. Where the database is linked to other systems then those systems should be obliged to report changes. For example if Income Tax is linked then notification to Income Tax that someone has left the Island should be reported to the Residents database.

I trust the above provides sufficient information for the Committee. If necessary I would be happy to expand upon the opinion expressed above.

Iain McDonald

Information Commissioner

22 February 2016

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Appendix 6: Letter dated 15th February 2016 from Stephen Cregeen, Chief Registrar

203 204 205 206

Appendix 7: Note to the Select Committee dated 8th February 2016 from J L M Quinn, HM Acting Attorney General

207 208

Note to the Select Committee of Tynwald on the

Operation of the Jury System on the Isle of Man

I have been asked to consider a number of the policy areas that the Select Committee will be addressing in relation to the Jury system on the Island. I have considered and comment on the following matters:-

1. The size of the jury

2. Training for jury service

3. The potential impact of social media

4. Peremptory challenges

5. Majority verdicts

6. Exemptions from service and circumstances in which people may decline to serve

7. Support for the jury by way of advice

8. Electoral role

9. Payment for service

In preparing this response I have consulted with the new Director of Prosecutions, Mr

Richard Butters, who comes to the Island from his busy practice as Counsel for both the prosecution and defence before the criminal courts of England and Wales.

In England and Wales 12 members of the public are always empanelled as a Jury and there are no exceptions. I take the view, which is shared by Mr Butters, that in his experience, whatever the size of the jury empanelled, whether it be 12 or indeed 7, there is no evidence that juries do not always take their public duty extremely seriously. The question is

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therefore whether or not the size of the jury has any impact (or is likely to have any potential impact) on the fairness of the proceedings?

There has been huge significant academic debate about the issue of the number of jurors and that debate has always rested historically upon the essential feature of a jury reaching a COMMON SENSE JUDGMENT BY A GROUP OF LAY PEOPLE when in the position of lying being between the Defendant and the Prosecution. It was said in an American case1, (the case of Williams), that a jury, whatever its size, is there simply to prevent oppression by

Government and specifically the oppression of an overzealous prosecutor and also to sometimes guard against a compliant or biased judge. It was said in the William’s case and asserted that the role of the jury is not attributed to the particular number of jurors. I share this view.

Looking at the matter from a common sense perspective, as I have done, I consider that a jury should be large enough in number to promote group deliberation; large enough to help ensure the jury is free from outside influence (and free from any attempt at intimidation) and then large enough to provide a fair possibility of obtaining from a broad enough representative cross-section of the community a reasoned verdict by reference to the prosecution evidence placed before it.

It has been said by a number of academics, and I agree with this, that a jury of less than 12

(in the Isle of Man’s case of course 7) can and do easily meet the overarching goals as a group, NAMELY TO BE FAIR AND FREE FROM PREJUDICE.

1 Williams v Florida 399 U.S. 78, 100 (1970). The Court wrote – the 12-man panel is not a necessary ingredient of ‘trial by jury’ – affirmed in Burch v Louisiana, 441 US 130, 135 fn. 7 (1979) stating a 12 person jury is no better than a jury of 6. 210 3

Mr Butters’ experience from his many years of appearing before UK juries on both sides, for prosecution and defence, is that it seems to him that the reliability of the jury as a fact finder free from prejudice can or should not be affected by any effects of its size.

It has been said2 that larger juries could be argued to have a less effective opportunity for group deliberation so that they may be more error prone to error in part because jurors often exhibit a greater reluctance to make important contributions to a group. The larger the group, the more likelihood of that reluctance to make contributions happening when the group tries to overcome any members biases.

The question of the number of a jury is of course only one aspect of make-up of a jury and perhaps another issue to be considered is whether minority groups may have a much less of a chance of having their voice heard when represented in a larger group. There is always going to be this kind of argument in discussions concerning jury sizes and make up.

In my view, the size of the jury does not matter provided the jurors take their role seriously, that seems to me to be the only issue. Assuming that, all that actively needs to exist on the

Island is a jury structure that enables a jury to be selected from a broad enough pool that results in a jury of a suitable size large enough to promote group deliberation.

It has also been said3, promoting a contrary argument, that the larger the number of jurors would allow for more total discussion, more vigorous discussion, and more contentious discussion.

2 Alisa Smith and Michael J Saks, The Case For Overturning Williams v Florida and the Six-Person Jury: History, Law and Empirical Evidence, Lexsee 60 Fla. L. Rev. 441 at 15, 60 Fla. L. Rev. 441 (2008). 3 Alisa Smith and Michael J Saks, The Case For Overturning Williams v Florida and the Six-Person Jury: History, Law, and Empirical Evidence, Lexsee 60 Fla. L. Rev. 441 at 15, 60 Fla. L. Rev. 441 (2008) 211 4

In my view, supported by the views I have obtained from the experienced prosecutors in

Chambers and now from my Director of Prosecutions, the size of the jury that ordinarily appears at the higher court on the Isle of Man (7) is large enough to promote adequate consideration and deliberation and is of a size which is sufficient to take into account competing arguments.

I come to the conclusion, which is also shared by Mr Butters, that the size of the jury on the

Island does not need not be changed and that it could accordingly remain at 7.

The issue of the required unanimity of a jury’s decision on the Isle of Man is a separate issue.

Majority verdicts are, of course, allowed in England and Wales when, if 12 people cannot decide unanimously, the law then allows the Judge to accept a verdict from a majority of at least 10 of the jurors.

In my view dispensing with unanimity of a jury’s’ decision clearly diminishes verdict reliability because looking at it sensibly, non-unanimous jurors can simply just stubbornly refuse to agree with the majority and remain intransigent and refuse to deliberate as fully as the other unanimous jurors.

Allowing for majority verdicts results in at least 1 or possibly 2 people not having been satisfied as to guilt.

My own view, again shared by Mr Butters, is that majority verdicts are, as a general proposition, a very unhealthy way to aim to administer justice.

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Permitting a majority decision in any event rather than unanimous jury decisions has the practical effect of actually reducing a jury size because it dispenses with (in the UK) at least

2 jurors. To that extent that if one was to support the continuation of 7 jurors on the Island under the present system, it would be inconceivable to reduce that number further by allowing majority verdicts from say 6 or 5 of the jurors. The size of the jury really therefore runs hand-in-hand with the type of verdict that might be available, unanimous or majority.

The only way in which majority verdicts could be included within the Isle of Man’s jury system would in my view require an increase in the size of the jury from 7, which as I have already observed, in my view, is not necessary. If the size of the jury is maintained at 7 then so should unanimous verdicts because to do otherwise would potentially create a very unsafe and unhealthy conclusion to a case.

If the political will is that the Isle of Man should introduce the concept of the Courts being able to accept a majority verdict then in my view the size of the jury would also have to increase in all jury trials from 7 to at least 12 as in England and Wales to accommodate that political will and it could be that legislation to provide for a majority verdict when a jury is of

12 might be considered.

Training for jury service is something that I would urge against as a proposition. The purpose of a jury has always been that ‘Joe-Public’ members of the public chosen in a random fashion (by analogy from those people who randomly might be travelling on the

Clapham omnibus) sit on a case, listen to it and apply their common sense.

Our jury system works well because a jury is selected randomly and common sense is applied by the jury.

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In my judgment, in the main, juries get their decision absolutely right by using “that common sense” approach. A jury is able, by applying for the directions from the judge, to seek whatever guidance as to law that they require and then at the conclusion of the case before it is left with them to reach a decision based on the facts of the case the trial judge directs them.

There is simply no need in my view for jurors to be trained and indeed to train them might as a consequence be dangerous because the training might potentially take away and interfere with the jurors common sense approach and so bring the jury to what might sometimes be an illogical arena. It also opens up argument as to what training is appropriate? Would that training deem to serve every case and who would decide as to adequacy, relevance etc?

It is of course appropriate that prospective jury members are required to all receive a formal induction as is the case already so that they are made aware of what to expect should they remain empanelled but beyond that induction the case should be left to the jury to consider and for the prosecution to have to explain and prove the case presented to the jury in an intelligible fashion.

I also do not consider that the potential impact of social media on a juror needs to be considered beyond what is in practice already done. Social media can clearly be at times potentially very dangerous when for example one views the comments made by people on

Facebook and other such mediums. The impact and the risks of the impact of social media is currently addressed by the Court giving directions to a jury, namely that the jury members must judge the case only upon the evidence that they hear within the courtroom alone and they should not make their own enquiry or investigation. Also a judge will direct a jury specifically that jury members must never Facebook one another, that they must

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never discuss the case with any other persons outside the jury and that they must never make their own investigations through the internet or otherwise and must never look up the names of any individuals involved in the case over the internet. To disobey these directions from the judge would, of course (and the jury are told this) be a contempt of court and many jurors in England and Wales, after such very specific directions from the judiciary, have been so imprisoned for contempt over the years.

Mr Butters tells me that in his experience the situation of the impact of social media is very much under control in England and Wales by requiring the judge to give directions as mentioned and so the huge potential adverse impact of social media has now been almost taken out of the equation. As I say, the impact of social media is therefore not really a jury policy issue but a discreet area that the judges are already concerned with to assist with in their directions to the jury right at the beginning of the trial and throughout.

Peremptory Challenges and Challenges for cause.

The rights of the parties in a criminal trial, whether it be the Prosecution or the Accused to challenge jurors before they are empanelled and sworn to act are set out in Section 27 of the Jury Act 1980.

S27(1) gives the Attorney General or any Advocate acting on his behalf an unlimited right to challenge a juror ‘without cause’.

S27(2) gives the Accused the right to challenge not more than 3 jurors ‘without cause’ and then any juror or jurors ‘for good and sufficient cause’.

It is difficult to justify why the Prosecution could be perceived as being able at will to pick and choose the members of the jury which it can do as it does not have to show cause but

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the Accused has no such right save for the 3 peremptory challenges it can make. Although in Mr Butters’ experience he has not seen any abuse of the prosecutions right in this regard it must be acknowledged as a risk.

I have concluded that I believe peremptory challenges are now outdated as a concept as there ought to be transparency and equal rights concerning jury selection process. I consider if either the Prosecution or the Accused makes a challenge to a juror that it should be on the basis of there being a good and sufficient cause for the challenge made.

The question of exemptions from jury service and circumstances in which people may decline to serve as jurors is a matter which I would urge the Select Committee to consider.

The Jury Act 1980 provides the opportunity for too many people in my opinion to claim exemption from sitting on a jury panel. I can understand Groups A and B under the Act of persons who are ineligible for jury service because of course the members of these groups are very close to the criminal justice system and to the policy-making decisions. However, when one looks at the persons identified in Groups C, D and E under the Jury Act 1980, it seems to me that all of the people noted should be available within the jurors list.

Ultimately any of those people could of course apply to be excluded if it became apparent that they could not be impartial to the case because, for instance, they knew the advocates in the case in question, they knew the judge, or they had some connection however loose or tenuous to the Accused or the case that is being tried.

Completely and automatically restricting from jury service all of those currently contained within Groups C, D and E significantly reduces, on our small Island, the diversity of people who could eventually sit upon a jury. Generally, Mr Butters when looking at our jury system after his years in practice as a Barrister, was surprised to see the automatic exclusions within Groups C, D and E because diversity is, in his experience, one of the key elements to

216 9

jury procedure. Increasing the pool of potential jurors would serve to increase diversity which would then potentially increase fairness and as a result enhance the perceived justice of the system within which we work.

In relation to support for the jury by way of advice. During the process of a trial the jury can and often does seek advice from the judge. There is no restriction on the advice they can seek from the Judge. However, at the end of a case jurors can be very upset especially at the end of a sensitive case (for instance a sex case). I believe that members of the public who have heard such nasty and disturbing things in a trial should be offered and have available to them some counselling or at least opportunity for discussion with an appropriate individual before being released from their jury duties. Supporting the jury or a jury member after a verdict is both sensible and needed and some form of counselling should be available in those circumstances post-verdict. This would be a sensible way forward to assist members of the public who might have dealt with extraordinary facts.

I am asked to comment upon the Electoral Roll and how jury lists are obtained from the

Electoral Roll. Sections 5 onwards of the Jury Act 1980 sets out the obligations that at the moment are imposed on the public in respect of jury lists. These provisions are relatively complicated and could in my view be simplified and improved upon by introducing 4 fairly straightforward stages to the jury service selection process, namely:

1. A computer selects names completely at random from the Electoral Roll.

2. Those jurors who have been so selected randomly are then sent a letter requiring

them to complete and return a questionnaire which will determine if they are

ineligible for jury service (under Group A or B as if they wish to claim exemption for

217 10

any other reason). The form will also enable them to confirm their availability to

serve on a jury during a time period for which they have been selected.

3. If they are eligible (they have not been excluded under Group A or B or on any other

grounds) then they will be put into a second ballot.

4. From that second ballot their names are then selected completely randomly (not in

order of a list or alphabetically) and thereafter they will be summoned for jury

service. This, of course, does not mean that they necessarily will serve on the jury

as the actual case may necessitate them seeking an exemption when summoned but

it does mean that they might have to attend court to take part in any jury selection

process in court. (When the potential juror is sent a questionnaire as outlined in

point 2 above, they can of course indicate within that questionnaire why they believe

that they are not eligible and why, if necessary, it would cause them exceptional

hardship by reason of business, professional or family responsibilities to serve on a

jury. To that extent I do agree with section 5(3)(b) as circumstances in which

people could seek to decline to serve.)

In short, in relation to the Electoral Roll and the selection of jurors, I take the view that it could be simplified and within a procedure as outlined above aimed at simplification that a greater and better system would result in a more random selection from a large group of people.

In relation to payment for jury service; having reviewed section 32 of the Act, I consider this contains adequate provision for remuneration which need not be disturbed. The current rates are designed to compensate a jury member for their expenses and on this basis they are perfectly reasonable in my view. The juror should not in my view be paid to 218 11

them expenses as that would in effect be a wage or salary for their attendance upon a jury panel. The public are required to be available to serve on a jury by way of public duty, not for financial gain. If the Jurors were paid to attend upon a jury then this might create a perception of them having a conflict of interest. (A similar situation exists in England and

Wales designed to meet a jurors expenses and nothing more).

8th February 2016

John L. M. Quinn

HM Acting Attorney General

219 220

Appendix 8: Letter dated 14th January 2016 from Hon, Juan Watterson MHK, Minister for Home Affairs

221 222 223 224

Appendix 9: Submission dated 17th December 2015 from Mark Lewin, Director, Government Technology Services

225 226 Response on Jury Service Databases Response to Select Committee

1. I have been asked by the Select Committee on the Operation of the Jury System to consider alternative means of building a list of those eligible to serve on juries that would enable the electoral roll to serve only as a list of electors and that would prevent easy avoidance of jury service and a specific alternative list of people which is more regularly updated and more accurate for jury service.

2. This paper is a high level commentary in response to these questions and poses a number of broader topics and issues for consideration outside of the specific context of a jury system or database.

3. The paper is based on a number of assumptions which are not clear from the initial request, but critically should be the starting point of any further discussions as inevitably they must precede any technical discussions or further advice, including :

a) Eligibility – The electoral roll allows for residents from 16 years and above to participate whereas current jury service only seeks to identify those between the ages of 18 and 65. Is this policy likely to continue; b) Frequency - Does the list need to include all individuals in this age range on a particular day (summons), or period (eg each quarter). How frequent do the updates need to be; c) Accuracy – Beyond the broad age eligibility how should the eligibility consider temporary residency. For example those born here, still with a Manx passport / driving licence listed on some systems but located elsewhere (eg students in higher education). Conversely should it include people working on the Island or living here temporarily who may not be registered anywhere. Should there be a minimum residency / qualification period and how does this tie into the qualifying criteria for the electoral roll; d) Compulsion – The question refers to removing the avoidance of jury service. Is it intended to be a mandatory process and actively seek to identify and target omissions, or is it a voluntary process. As explained further the electoral roll relies on a great deal of citizen participation and appears to have a significant gap between those eligible and those listed. For jury service should individuals be given the right to be forgotten or excluded or is this an issue of national citizenship that everyone should participate in and are the current range of exemptions (many of which can only be relied upon through self-certification) likely to continue;

4. These policy considerations will be fundamental in determining whether there is an alternative source of information that could be used as a foundation and inevitably the questions and answers will change depending on the consideration of the above points.

5. Notwithstanding that and to provide the committee with some areas to consider, this note has been compiled as a starting point with input from other sources, in particular the Cabinet Office External Relations who have responsibility for the electoral roll and assumes some of the above points in coming to a conclusion.

6. Due to this and some of the issues it raises, it would benefit from discussing in person and I would be pleased to come and discuss with the committee at their earliest convenience together with the Executive Director for External Affairs, Mrs Della Fletcher who is the ultimate Registration Officer for this process.

227 Response on Jury Service Databases Summary

7. The conclusion of this note is that the current method of compiling the electoral roll provides a far from complete resident database that in turn could be used by other services, such as jury service. With over 30% of the expected residents (16 years and above) not accounted for on the list, rising to over 40% of the expected residents not apparent between the ages of 18 to 65, taking any subsets of that is likely to have significant deviations. This is a reflection on the challenges of a process that requires a citizen to effectively “opt in” and inform Government.

8. There is unlikely to be an alternative local system / database available today that provides an exact match for the jury service purposes based on the current criteria (age, residency, occupation specifics) however there are alternative sources of information readily available today (NHS numbers / GP registrations, Driving licences and Income Tax records as 3 examples) which on the surface appear to contain a more accurate representation of the broader population with a combination of NHS / National Insurance numbers likely to result in a much smaller and acceptable deviation of under 5% of the true citizen population.

9. Each of these other sources in isolation have caveats and omissions which may render them insufficient for the purpose described and in any event considering the use of another system, and information captured for one purpose to be used in another would clearly require significant policy, legal and public consideration before use and my working assumption is that they probably do not represent the most appropriate solution in the long term.

10. My working assumption is that the most appropriate and strategic solution would be the creation of a single citizen database storing simple basic information (name, address, date of birth, gender & occupation status as a start), established with clear policy and on a statutory basis, that would not only meet the needs for the selection of jury service, but could radically improve the veracity of the electoral roll.

11. Such as system could be pre-populated and validated from other systems such as National Insurance (subject to the requisite policy and statute cover) to improve the current method of collation and act as a near real-time single source of truth on the population at any particular point in time.

12. This method of a “names and address” register as adopted in other jurisdictions could underpin and support the development of more efficient and targeted public services over time – from health screening to education inclusion, from criminal justice and fraud investigations to public administration.

13. Importantly in addition, clear evidence on real time demographics would provide a solid basis for policy development in specific areas (such as immigration, future health demands, future infrastructure requirements) using a single source of up to date truth on citizen and economic demographics.

Mark Lewin Director, Government Technology Services 17th December 2015

228 Response on Jury Service Databases

Context

14. This paper is in response to a request from the Clerk of Tynwald :

a) "The Select Committee on the Operation of the Jury System is considering a wide range of issues relating to the operation of juries. b) One important matter is the formation of the basic list of citizens who are entitled to vote and also to serve on a Jury. There has been a lot of comment about people not registering on the electoral roll because they wish to avoid jury service, thus disenfranchising themselves and avoiding their civic duty. c) The Committee would be grateful if you could submit a paper setting out alternative means of building a list of those eligible to serve on juries that would enable the electoral roll to serve only as a list of electors and that would prevent easy avoidance of jury service; for example, is there an alternative list of people which is more regularly updated and more accurate?”

Electoral Roll

15. As the committee points out, the current method of drawing the list of eligible jurors stems from the electoral roll which is compiled and overseen by the External Relations function within the Cabinet Office.

16. The actual underlying information is stored on a self-contained system called EROS from Halarose that is specifically designed to support the election process with the creation and production of a regular roll being part of its functionality.

17. The historic method of compiling this list has been through sending a household form to each and every household on a regular basis (every one to two years with the last being in the first quarter in 2015 and another scheduled for early 2016) and when an individual notifies the office of a change in address or circumstances, sending a form out to them to complete and return.

18. This note is not intended to cover the detail surrounding the electoral roll process and this whole area is the subject of a root and branch review that is now underway, however it is worth stressing that although the Registration Officer has the powers to compel any individual or head of household to complete and return a form, in practical terms the roll is an opt in database, as it relies upon citizens to take an active responsibility to inform Government of their details for one specific purpose.

19. If the Registration Officer does receive an incomplete form or is missing one completely – their response in practical terms can only be to remove any historic information from the database (if they are included in the first place), and although they have the powers to prosecute, I am not aware of any prosecution having been pursued for incomplete or missing information.

229 Response on Jury Service Databases 20. Notwithstanding the full review now underway, there are some immediate practical limitations with the electoral roll being used as a basis for any other purpose including:

a) Frequency - it is only updated on an infrequent basis (1-2 years) outside of the citizen updating Government direct (for example change of address) or in the run up to a general election; b) Opt-in – Although underpinned in statue it’s practical application relies on an opt-in model and consequently can never be deemed to be a complete record of anything other than those who chose to be recorded on this basis; c) Inclusion - The basis of seeking returns from a head of household removes the direct relationship between the citizen and Government and consequently many citizens may never see the form arrive nor be able to influence its return (for example spouses, tenants, flat sharing, adults living with parents etc); d) Transparency – although the open register is a public document, it is not easy for a member of the public to check whether their own details are up to date without visiting a local authority or the Registrar’s offices. e) Ownership – Even where an individual choses to register direct on their own behalf or amend their own details, there are difficulties in allowing them to do so with processes falling back to seek the head of the household’s permission;

21. All of the above points form part of the current review now underway. This review is led by External Relations with the potential to address some of the issues being considered on a tactical basis (such as publication of the electoral roll to allow individuals to self-check their own details) – however as long as the list relies on an opt in process, it is unlikely to be accurate enough to be used operationally for any other purposes.

Database Comparisons

22. To put this opt in method into context and understand the veracity of the electoral roll as a basis for other services (such as Jury service which is a subset of the main roll) we firstly need to understand it’s completeness in totality.

23. There are issues in comparing different sets of statistics and sources of information in that there isn’t an exact match for the jury service requirements (18-65 only, occupation recorded and validated, 5 years residency in British Isles from 13 years old etc).

24. To give a general feel for veracity, in conjunction with the data owners across other systems I have looked at the sample 4 databases – Electoral Roll, active GP registrations (backed by NHS numbers), active driving licences and income tax registered residents.

25. Each one is not a perfect representation of the population and has caveats and issues however as can be seen from the table below in the round they suggest that there is a significant gap on the electoral roll (and consequently jury service) between those eligible to be included and those actively included.

230 Response on Jury Service Databases

26. Comparison of “citizen records”:

# Residents # Residents Date 16 yrs + 18-65 Electoral Roll / Jury Service Oct-15 49,097 31,988 Economic Affairs Estimate Apr-15 70,647 52,765

28. Those on the roll who were listed as eligible for Jury Service amounted to 31,988 against an Economic Affairs prediction of 52,765.

30. This raises the obvious question on how accurate the populate estimates are, or how accurate is the roll which relies upon a method of opt in and leads to an assumption that being reliant upon a citizen to submit a specific return to Government, often on behalf of other citizens, will never be fully accurate and currently appears to be missing a large proportion of the eligible population.

Other Sources of Citizen Database

31. Turning to the broader point of what other lists of people might be held that is either more accurate or updated more often, Government by virtue of its extensive size and Departmental structure holds and stores information across a vast array of services and systems. From criminal justice to tax and benefits, from education to health and from highways to civil registrations.

32. To understand the broad statistics above I have looked at 3 key principle systems as follows: a) GP Registrations; b) Driving Licences; c) Income Tax;

33. When compared to the economic estimates and the electoral roll the following information emerges:

# Residents # Residents Date 16 yrs + 18-65 Electoral Roll / Jury Service Oct-15 49,097 31,988 Economic Affairs Estimate Apr-15 70,647 52,765 GP Registrations Dec-15 72,390 54,034 Driving Licences Oct-15 65,045 49,724 Income Tax Dec-15 76,000

231 Response on Jury Service Databases

34. A snapshot from the GP system EMIS shows 72,390 registered patients at the 13 surgeries who were 16 or over as at 7th December 2015. This is within 2.5% of the economic affairs estimates and although the data from individual GP practices is unlikely to be considered an appropriate source not least due in part to clinical ethics on data sharing, the system is based on NHS numbers (allocated at birth or when someone arrives inside the UK or Crown Dependencies) and appears to be a fairly accurate and acceptable source of information for citizen records (subject to the other non-technical policy and considerations below).

35. When looking just at those aged between 18 and 65 the systems show 54,034 individuals registered compared to economic estimates of 52,765 and is again within 2.5% of the economic affairs estimates.

36. Consequently this adds rigour to the economic assessments and to the previous assumption that the current roll is significantly incomplete. Conversely National Health Service Numbers and / or National Insurance numbers are held by the majority of the population and although will have deviations and exceptions, are likely to be a far more accurate representation of the population at any particular point in time.

37. Looking at another platform, information provided from the Department of Infrastructure from the driving licence system showed 65,045 active driving licences (provisional and full) in issue as at 7th October 2015. Whilst this would always be expected to be lower in part due to the obvious fact that not every citizen 16 and over requests nor maintains an active one and some individuals may maintain one notwithstanding their residency outside the Island, it is within 10% of the economic estimates. When looking just at those between the ages of 18 and 65 the number of active licenses is 49,724, within 6% of the economic estimates and significantly closer than the discrepancies with the electoral roll.

38. Finally the Income Tax Division of Treasury have recently confirmed in response to this request that there are over 76,000 individuals registered on their system. This again will not be a complete match and will include non-residents who still may file returns from time to time and young adults in higher education who may be off the Island and consequently might be expected to be higher than the normalised economic projections, but again show the likely size of the target population being sought for residents 16 years and over and is within 10% of the economic projections.

39. Each of these sources is not in itself a complete picture and contains caveats. GP’s require patients to register and maintain their details accurately (for example if they leave the Island), Driving Licences tend to be up to date, but again will often include individuals who are not currently on the Island and is only ever a subset of the population, and Income Tax will increasingly only reference individuals of interest for their purposes.

40. However looked at in aggregate they re-enforce the hypothesis that the economic estimates are likely to be a valid approximation of the resident population and that the current jury list is likely to be significantly under represented, itself being a subset of a much smaller database which is incomplete.

232 Response on Jury Service Databases 41. Due to the caveats above on eligibility, inclusion and vires, it is suggested that none of these sources are a perfect match for a jury service database, but collectively could help form the basis for such.

42. Due to the limited time to investigate this matter I have been unable to determine the number of records held in National Insurance, but there is a direct link between NHS numbers and National Insurance numbers and up until 2 years ago National Insurance numbers were automatically issued upon an individual reaching the age of 18. In combination for eligibility to access health services, receive benefits or pensions or contribute through employment this is likely to result in the closest match anywhere of an up to date set of information on citizens.

Issues to consider

43. The technical construction of a citizen database, or the re-use of an existing source for another purpose is likely to contain a small set of personal information such as name, address, date of birth and occupation for assessing eligibility for jury service.

44. The issues are however far more profound in a non-technical context and although the committee has requested comments from GTS on alternative sources, the issues and policy implications of considering such have far reaching impacts which need to be considered further, and are merely referenced here for consideration:

a) Legal Vires - does the entity collecting, processing or proposing to use the information have the requisite powers to do so; b) Personal Consent – is it an opt in or an opt out process and is it transparent - should the citizen have the right “to be forgotten” for a particular purpose; c) Data Protection – is the purpose for the collection and usage of the information clear and fully compliant with the requisite data protection principles.

Names & Addresses Act – Digital Strategy Recommendation

45. Taking these issues above, it is useful to look at how other jurisdictions deal with these subjects.

46. The principle of having a true and accurate record of a customer base underpins the majority of any commercial businesses. Equally in public service terms, understanding at any particular time citizen numbers, information and needs has been firmly established through censuses for millennia.

47. With the advent of the digital age, having a reliable and single source of base information which the citizen can oversee and own is an important part of many Governments’ digital strategies and considering a few such examples of an approach to storing information once (in particular names and addresses) in the pursuit of maximising efficient public services has been included to give the committee some context.

48. In simple terms citizens who request a change to their address will often expect “Government” to act upon a single instruction when in reality there is nothing currently that exists to update in a single place, instead having to ask them to inform many parts of Government, often many times. This is inefficient to the citizen and inefficient to Government.

233 Response on Jury Service Databases 49. This concept of having a single record of names and addresses that could be used to better serve citizens came up as part of the research work into the Digital Strategy and a recommendation to investigate further how this could work in the Island was included in the final report which went to Tynwald in June 2015 (Digital Principles – investigate the potential for a “Names & Addresses Act”).

50. This work is just commencing now and will need to involve a broad range of stakeholders however the starting point clearly needs to consider policy goals and the request for the committee is therefore timely.

51. There is increasingly a lot of focus on data capture, retention and usage of personal data across the globe with several countries amending existing regulations to enable governments to streamline access to data and to use data coherently to support and drive public service and interdepartmental coordination of services.

52. Four examples of differing levels of moving to a single source of citizen data for governments within Europe that help highlight the spectrum of solutions developing include Guernsey, Jersey, Camden and Estonia.

53. Each government authority has reported positively on the changes implemented with the streamlining of process and services across governments and councils from having a single source of basic citizen information held in one place.

Level 1: Guernsey: a) Guernsey launched its e-census system in mid 2015 replacing the previous paper based census and hailing it as the world’s first move to a completely digital automated census whereby they will never again ask a resident to complete any form of census again; b) Instead they consolidate and match information that people already give to government across seven departments in ten databases including health, education, tax and benefits. c) There is no manual input required by the public and all data is anonymised by the system using pseudonyms and in doing so Guernsey appear to have avoided the need for consent; d) The data is then used for statistical purposes only, enabling the government to collate information on parish populations, school catchment areas and voting districts and crucially inform policy making. Information is published in a set of annual and quarterly reports and has replaced a 5 and 10 year census approach with a monthly summary of the population demographics; e) Although not suitable as the basis for an electoral roll nor basis for jury service (as it no longer contains accurate information) it helps them understand the true numbers of individuals eligible on an exact basis; f) The feedback from officers and politicians on some of the insights the data has provided has led to calls for the system to be placed on a statutory footing that would allow operational use of it by services from police to health to public service and to electoral purposes and this expansion is now believed to be under consideration.

234 Response on Jury Service Databases Level 2: Jersey: g) Jersey has taken the process one step further and has the appropriate statutory footing to “store basic personal information only once in the pursuit of public service”; h) Jersey amended its legislation in 2012 & 2013 with the ‘Names & Addresses Law 2012’, ‘Control of Housing and Work Law 2012’, and ‘Social Security and Income Support Law 2013’. These laws enable the capture and use (*by the Social Security Department, and the Population Office) of Name, Address, Date of Birth, Place of Birth, Date of arrival (for non- residents), Gender, and Social Security Number; i) The States of Jersey have also proposed a new regulation ‘Names and Addresses Access for Medical Purposes 2015’. The changes would allow the central register of names and addresses held by the States to be used to improve the take-up of cancer screening and to help explore how to better support voter registration; j) The aspiration is for more departments to be linked together, as the central register continues to develop and improve as a tool for the whole of government, overseen and approved by the States of Jersey Assembly.

Level 3: London Borough of Camden: k) Looking at UK local authorities, Camden Council has embraced the concept further and as well as a statutory footing to store the information once (as a single local authority) it launched its ‘Residents Index’ in 2014. l) The index provides Camden with a single view of its citizens by matching data from 16 systems (such as council tax or housing) across the council then automatically identifying any discrepancies. This information is hailed as allowing the council to intervene earlier and better protect children, the elderly and vulnerable, as well as identifying areas of spending concern and tackle fraud. m) The authority is currently examining how it could use the data to map take-up of services, demographics, incidents and other trends in specific geographic areas. This will allow it to better target services and plan delivery on a more long-term basis.

Level 4: Estonia: n) Looking further afield in Europe, many countries hold central databases on their citizens to provide joined up services. One example that is often quoted as a digital exemplar is Estonia. o) Secure, authenticated identity is the deemed the birth right of every Estonian. Before a new born even arrives home, the hospital will have issued a digital birth certificate and their health insurance will have been started automatically. All aged 15 or over have electronic ID cards, which are used in health care, electronic banking and shopping, to sign contracts and encrypt e-mail, as tram tickets, and much more besides—even to vote. p) Estonia’s approach is hailed as making life efficient and unusually by law, the state may not ask for any piece of information more than once. Also importantly to support this culture citizens not only have the right to know what data is held on them but which part of Government is using it and for what purpose on a real time basis. Thus the citizen can see for example an audit trial of their health record accessed by a clinician.

54. These four examples highlight how other governments are moving towards the concept of a centralised database for key information that as well as making services more focused and efficient, help provide insights into activity and interventions and support policy formation.

235 Response on Jury Service Databases 55. Jersey’s in particular is specifically focusing on addressing the issue of electoral roll however Jersey and Guernsey both benefit from a legal requirement for registration with Government by all individuals who reside on the Island for a certain minimum period.

56. In all cases the benefits appear to share two principles: a) Firstly the ability to capture / share data automatically by integrating existing departmental government systems – thereby providing citizen benefits. If a citizen wishes to change a piece of information (name or address) this can be done once and replicated. b) Secondly in having readily available, up to date data this provides Government with a near real time information source that at a macro level allows informed planning and reaction. Everything from gathering statistical information, electoral information, housing data, and medical screening, through to the Estonian model which captures all of a citizens data in one place has been used to inform policy making and tailoring and targeting services to areas of need.

57. By contrast the Isle of Man has limited information on the resident population at any particular point in time apart from economic estimates and bi-centennial census. There is no mandatory registration process for all citizens on a real time or indeed near real time basis outside the current electoral roll process which as highlighted above appears far from complete.

58. The Isle of Man Government Departments also have extremely limited abilities to share information outside any one use or their own Department for operational purposes and whilst there are some examples of information sharing gateways, they are rare. Tynwald’s recent approval of the disclosure of information order evidences that information sharing gateways can be established and if based on solid policy outcomes can provide the necessary legal platform.

59. In the absence of any clear frameworks the converse is often seen with many perceived issues with the sharing of information even within one Department. Issues of sharing patient data in health or student data in education regularly crop up.

60. This is a huge and sensitive subject and the purpose of this section is not to advocate a widespread sharing of information, merely highlighting that the Isle of Man appears to be behind other areas in developing a clear policy on the concept of a single name and address / basic citizen register that can be used for multiple purposes.

61. The electoral roll and jury service would be two obvious candidates for such a database and it could more broadly support a number of services and act as the core record of citizen on which to build other components (such as consent models for information sharing, service eligibility and policy insights) – always overseen by clear policy and appropriate regulations at each stage.

62. This concept of having a core source of record, established in statue is advanced in other jurisdictions and I believe carries support from the Information Commissioner in having such a clear, publically supported and politically driven citizen record.

63. The work to define this option in more detail is only just starting and would need political input as it develops, and I would welcome the opportunity to use Jury service as one of the candidate cases to develop out.

236 Response on Jury Service Databases Conclusions

64. The current electoral roll is not a complete basis on which to base other services unless they too can operate on an opt in basis;

65. Other databases in other parts of Government appear to be more closely matched to the population estimates and support their quantum, however they each have caveats and no single source of truth exists in one place even if placed on a statutory footing for another purpose and might have dis-benefits (e.g. someone not registering with GP / NHS to avoid being called for jury service).

66. These other systems also do not contain the level of exemption criteria the current jury service process considers (such as occupation specifics and residency tenure). Some form of citizen validation is probably the only way to access the level of complexity in the eligibility criteria unless this is dealt with at summons time - shifting the burden to after the event rather than before the event and it is assumed every citizen between 18 and 65 (assuming that remains the valid range) is eligible unless they certify at summons time a disqualification.

67. The closest system in accuracy terms is probably based in Health on NHS numbers where every child is allocated a NHS number at birth and registered with a GP, and up to date information is held by the GP. Although the GP retains control of the clinical record, the base information such as name, address, date of birth is held centrally in the NHS spine for the majority of citizens and could technically be considered as a single source of information for all relevant residents and mirrors the approach in UK electoral reform whereby under individual electoral registration, citizens enter their national insurance number to be added to the list.

68. In Isle of Man terms there are translation tables that can translate between NHS and National Insurance numbers for contribution / benefit purposes and further work would need to be commissioned to consider in depth the potential to use this information as an initial basis;

69. Even in these systems however this information can never be 100% accurate nor complete and clearly remains the responsibility of individuals to maintain and notify changes.

70. Strategically having a single source of citizen record is a growing trend across Governments in the pursuit of improved public services, efficiencies and accurate information.

71. The electoral roll / jury list could be part of a broad suite of services as to why a basic register of information is held once (health screening, benefits entitlement, prescription entitlement, fraud prevention etc) - all increasingly under pressure - and would always need to be on a statutory basis.

72. The technical re-use of an existing system, or the creation of a new database in itself either on a standalone basis or from compiling other sources will need further consideration however many non-technical issues will need to be considered first including : a) Policy goals b) Eligibility c) Legal Vires

237 Response on Jury Service Databases d) Inclusion / Public Interest (and public right to be forgotten) e) Data Protection (particularly if any form of re-use from one area to another is envisaged) f) Dis-benefits – for example re-using NHS numbers may put people off registering with the NHS and getting access to essential care

73. Balanced against this however is the potential benefits an up to date single register of basic information could provide - not just as a basis to consider jury service;

i. Entitlement - ensuring all citizens have access to the appropriate services they are eligible for whether that be health screening, benefits, education etc ii. Engagement / Citizenship – ensuring all citizens have the opportunity to participate in their public duties appropriately – whether that be voting, jury service or other public duties; iii. Informing Policy Development – a single source of information on population and activity on a near real time basis could be hugely powerful in constructing policy options

74. Finally, it is recommended that these issues are discussed with the committee and consideration given to widening the scope of the committee’s interest to consider a broader citizen “names and addresses” solution that would consider the above topics in more depth.

Mark Lewin Director, Government Technology Services 17th December 2015

238

Appendix 10: Letter dated 22nd November 2015 from Mrs Joan Cook

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Appendix 11: Letter dated 20th November 2015 from Hon Juan Watterson MHK, Member of the House of Keys for Rushen

243 244 House of Keys Y Chiare as Feed Legislative Buildings Oikyn Slattyssagh Douglas Doolish Isle of Man Ellan Vannin IM1 3PW (A41 3PW British Isles Ny Ellanyn Goaldagh

Our Ref JW/jw

20th November 2015

Mr Roger Phillips Clerk of the Committee Operation of the Jury System Legislative Buildings Douglas

Dear

I write aS-Member of the House of Keys for Rushen, as opposed to in my capacity as Minister for Home Affairs (the CEO has responded separately). I have however; been responsible for attempting to reform the criminal justice system on the Island and it is that experience that has for the most part guided my response. I cannot claim too much expertise as I have never been a part of the jury process, or a party to proceedings which have exposed me to them.

When considering a review of the Jury System, it is incumbent on us as policy makers to ensure that the justice system is timely, fair and independent, as well as cost effective for the taxpayer. Justice must meet our needs as an Island, bearing in mind that there will be occasions when it is under scrutiny from the public of our Island and wider international community. It must also take into account all of those who make the system work. In addition to the police, prosecutors, defenders, judiciary, juries probation workers, and prison officers, we must also consider the accused, the victims, and witnesses. Each has their own part to play, their own needs and stake in justice. It is important at all times to have sight of all of these stakeholders. Obtaining the right balance between rights and responsibilities of each is complex, as unbalancing one has the potential for negative effects elsewhere. However, there is no reasonable argument for justice at any price and over any timescale.

Telephone Fax E.mail 245 To take the questions posed by the committee:

1. whether the seven man jury should be changed to a twelve man jury a. what the practical consequences of that might be;

It would be wrong to presume that prior to the Emergency Powers Act of 1939, Manx juries had always consisted of 12 people. Looking at "The Constitution of the Isle of Man" (Report of the Commissioners of Inquiry for the Isle of Man in 1792, Printed for the Manx Society Brown in 1882), it can be easily discovered that trial by jury in the years following the Revestment was of "six men of the sheading in which the lands lay, in case of real actions; and of four belonging to the Parish where the defendant lived, in actions personal." A jury of six from the Parish where the party lived also determined cases of assault denominated "bloodwipes". Things are more complicated where cases fell to the "inferior baronies", where felonies (therefore their courts were of criminal judicature) committed by persons resident in the Barony who were not tenants to the Lord Proprietor (Governor) were cognizable and tried by a jury of 12 selected from the tenants of the Barony. This system operated parallel to the courts of General Gaol Delivery.

At that time, the jury was taken from the list of the whole district, and it is noted that later the jury for personal actions expanded to six. It is interesting to note that when the plaintiff and defendant appeared in court, "the jury were sworn and directed to examine the witnesses to be produced, which they were permitted to do at their leisure, out of court, and to deliver their verdict to the court at its next meeting, or sooner, to one of the Deemsters, if convenient to themselves, or thereto particularly required." It can also be gleaned from this publication (p.39) that jury verdicts must be unanimous. Appeal against this verdict was to the Clerk of the Rolls, within a certain timeframe and on payment of a recognisance to a jury of 12 in real actions and six in personal actions. These provisions appear only to have been equalised when the role of the House of Keys in determining justice was finally removed by the House of Keys Election Act 1866, and Appellate Jurisdiction Act 1867. Previous to this, by an Act of 1737, some cases of fraud regarding titles to real estate had to be inquired into by 6 MHKs! Provision also existed for jurors to be amerced, should the Keys or a subsequent jury find cause.

The historical context shows that twelve person juries were really only standard in Court of General Gaol Delivery cases between 1867 and 1939. The Island's censuses, which have been undertaken since 1821 show a population as low as 40,081 in 1821, less than half of the Island's current census population. The issues of a pool of people to be impanelled and the size of the juries must, on the numbers alone, be less of an acute issue now than was the case then.

I have not heard any evidence that suggests that a seven person jury has caused any particular issues, and do not, on my understanding see a real case for change to increase it.

246 2 2. The extent to which jurors should be trained

I do believe in a growing age of complexity that there is scope for the introduction of qualified jurors (or jurats) into the Manx system. However, I would add that these need only be in the specialist areas of financial crime, and other areas of specialism. For many offences under the Criminal Code 1872, I believe that there is general satisfaction in the jury system and being tried by ones' peers.

It is my understanding, which the Committee may want to seek evidence on, that the trial judge will set out the questions which the jurors must answer, not simply guilt or innocence. The trial judge will, I believe give guidance to jurors as to what they should or should not consider, and the burden of proof that is required. Again, I understand that the jury may revert back to the trial judge to seek clarification.

I am not aware of what training, if any, is given prior to trial for juries. The time and cost such training would take would need to be balanced off against the merits. I am not sure what these would be as any attempt to introduce mandatory training would increase the time required on jury service (which is already an anecdotal cause for compliant), and would almost of necessity be inadequate in that you will not make overnight lawyers out of jurors, nor should it be attempted. The guidance by the trial judge, openly and on the record is a very useful way of ensuring relevant considerations are made and that an outcome is reached that conforms with good law and good practise.

3. The threat to the integrity of the jury system posed by social media

There are real dangers in this area, especially for trials spanning long periods of time. It is not unreasonable for people to be requested to abstain from social media for a short period of time, perhaps a few days. However, it is becoming increasingly apparent to me as a constituency MHK that more and more people are living their lives over social media, particularly Facebook. This extends to social lives, and engaging with public services. However, there is nothing so fundamentally different in the rules being similar to exposure to newspapers or radios. It is an important consideration, but of course there is the added benefit in cases of further legal challenge that people's browser history is obtainable for scrutiny.

I have great concerns over personal security and online bullying, which will be the subject of safeguarding discussions in 2016. It is a complicated subject where enforcement is difficult. To many, it is not as simple as not going online, such a view would be tantamount to saying "don't walk down Strand Street".

4. Whether majority verdicts should be introduced;

Yes. I find it inconceivable that the justice could be stalled or even permanently blocked by one individual whose personal prejudice or minority view. In the days of the death penalty, I could see good reason for this provision which I do not think holds today. Unanimity is not a real test of anything. Governments, policies and democracy generally work on a simple majority basis.

2473 I agree that the depravation of liberty, confiscation of property or other state sponsored sanction should be subject to a higher threshold. I would therefore contend that a 6-1 majority on a seven person jury should be adequate.

I would strongly agree that the upper age restriction should be removed from the list of exemptions. I would however, suggest that the Chief Registrar has significant latitude in exempting people who had applied for exemption on the basis of physical or mental frailty, as it is important that jurors have the intellectual faculty and physical ability to undertake the task.

Given the changes in the House of Lords and the Island's constitutional situation, I would suggest that peers and peeresses (with the exception of the judicial bench) could be reintroduced back into the jury pool, but I do not expect that this will significantly swell the pool available. The Board of Education is still part of Group A (according to http://www.courts.imjjuryservice/ineligable.xml#Group A) but this body was abolished, and I do not think there is good cause for members of its successor body, the Education Council to be excluded from Jury Service. Group C also includes a group, "A person who at any time within the last ten years has been a person falling within any description specified above in this Group." The Committee may wish to review this time frame, which seems rather long.

I am also uncertain why employees of Manx Radio or Isle of Man Newspapers should be automatically exempted.

6. Whether the jury would benefit from a secretary to advise them, much as magistrates have the services of a legally qualified clerk

In addition to my comments on training, above, there is a danger that by adding a single 'expert' into the jury dynamic, that they would be unduly influential and change the psychology of the group. As it stands it is a committee of equals who are required to form a collective view, and I believe that there is a merit in that.

7. Whether juries should be required to give reasons for verdicts a. Whether they should routinely be given written instructions by the judge about matters to consider;

It is not clear why this would be of benefit, and it would likely as not give greater fuel to the fire of appeal. I am not convinced, on the face of it, that justice is served to any greater degree by the provision of reasons when the trial judge will have advised them of relevant considerations in forming their verdict.

8. Whether the Electoral Roll is appropriate for selecting juries and, if not, what an alternative might be

2484 In my view there is an obligation to be on the electoral roll. There is an ability not to appear on the public register, and there is a democratic option to not use your vote in elections. It is critical that the electoral roll is as full and accurate as possible. Enforcement of its completeness seems to have taken a back seat, and it is almost seen as acceptable to not be on it. This should not be the case, in the interests of justice and democracy.

9. And whether the current system for payment for service on a jury is appropriate.

I have no views on the current rates or payments for juries.

Yours sincerely

Hon Juan Watterson BA(Hons) FCA MHK Member of the House of Keys for Rushen Minister - Department of Home Affairs Chairman - Communications Commission Isle of Man Armed Forces Champion

2495 250

Appendix 12: Letter dated 20th November 2015 from Juan Moore, Chief Executive Officer, The Isle of Man Law Society

251 252 THE ISLE OF MAN LAW SOCIETY

The Hall of the Society, Please reply to:— 27 Hope Street, Douglas, Isle of Man Law Society Isle of Man, IM I IAR. 27 Hope Street Douglas Tel/Fax: (01624) 662910 Isle of Man E-mail: [email protected] IM1 1AR Website:www.iomlawsociety.co.im Tel: (01624) 662910

E-Mail: Website: www.iomlawsociety.co.im

20 November 2015

Office of the Clerk of Tynwald Legislative Buildings Douglas Isle of Man IM1 3PW

Dear Mr Phillips

Select Committee on the Operation of the Jury System

Further to your letter dated 6 November 2015, and your confirmation to Advocate Vicki Unsworth that we can provide our response after the initial deadline provided to us, I write to advise that we have now had the opportunity to have an initial meeting with interested members of the Law Society to discuss this matter.

Firstly, and fundamentally, it is not felt that there is in fact any need to change the current jury system, as it works and we are not aware of any failings in relation to it. Our jury system protects the fundamental legal and human rights of Defendants coming before the Courts and ensures that they are tried by their peers. This principle is long established and deep set within the justice system of this Island.

However, if Tynwald feels that it is appropriate for money to spent looking at this issue, we would strongly recommend that the Select Committee appoints external members to its panel. Such external members should be those with legal expertise and qualifications, in order that they can guide the Committee on these very deep set and fundamental issues from a practical and learned perspective. The issues surrounding jury systems within a criminal justice system are complex, philosophical and go to the very root of our legal system. These are not small issues that can be fully considered and explored in a matter of weeks or months. The Committee will have to undertake significant research into these issues and look at many different jurisdictions in order to understand how these concerns are managed.

Before we can possibly provide a full response to the consultation, we need to better understand why it is felt that there is a need for change. What is it that the Committee is trying to fix? What are the current perceived problems with the current system? Why is there such a rush to move this consultation forward?

The Committee is proposing to consider a number of different areas as part of its remit. For us to consider and respond we really do need to understand where the concerns have come from and what is driving this consultation. The list of issues is detailed, yet as those practising within this very system, representing Defendants appearing before juries every day, have not raised and do not have significant concerns with the current system.

253 There must be a clear and defined term of reference for the Committee to work to and this needs to be considered very carefully before any meaningful research and consultation can take place. At the very heart of that term of reference there must be a rationale as to why the system needs to be looked at at all.

In the circumstances therefore, we look forward to hearing from you in due course with the rationale behind this consultation together with details as to what the Committee perceives to be the fundamental problems with the system that require to be fixed. Once we understand the Committee's remit we will be able to provide a more meaningful response. We would also ask that you advise as to the expansion of the Committee, bearing in mind our comments above. However, we would point out that such response cannot be provided within a matter of weeks as we will have to undertake research and consider the issues in detail.

Yours faithfully,

Juan Moore Chief Executive Officer

254

Appendix 13: Submission dated November 2015 from Graham Hurley

255 256 Submission to Select Committee of Tynwald, concerning Isle of Man Jury System

BACKGROUND

I’ve lived in Douglas since 2000, and have served on a jury once during that time. This was the only time I had ever served on a jury anywhere. At the time of the trial, I was about 60 years of age, and self-employed (but luckily, with considerable flexibility as to the scheduling of my work). My occupation is that of a professional IT Consultant.

It was a criminal case, held at the Courthouse in Douglas, before a judge (I think his title was a “Deemster”), and with a jury comprised of seven members. The case continued for approximately one week, and resulted in a unanimous “not guilty” verdict.

GENERAL COMMENT

My experience serving on this jury confirmed my belief that the traditional jury system is a good one; fulfils an important function; and (for the most part) does not cry out for reform.

RESPONSES TO THE SPECIFIC POINTS identified by the Select Committee.

1. Whether the seven man jury should be changed to a twelve man jury and what the practical consequences of that might be: I found seven to be an adequate and perfectly proper size for a jury. With larger juries, in a community the size of the Isle of Man, it would often be difficult to avoid the problem of jurors having prior connections with defendants, witnesses, or each other. I would dismiss any notion that the Isle of Man should have larger juries “to follow the UK”, as I believe the Isle of Man is well able to justify – and to proceed according to – its own traditions, needs, and unique circumstances, and should confidently do so.

In any case, I understand there is already provision for a jury of 12, for very serious trials.

2. The extent to which jurors should be trained: My experience was that the existing training (including an introductory video, and guidance from the judge) is fully adequate. It is easy to imagine how introducing more “training” would provide opportunities to interfere with the traditional independence of lay juries.

3. The threat to the integrity of the jury system posed by social media: The judge’s instructions in this regard were clear. I believe a juror was prosecuted in UK in recent years for disobeying such instructions. If jurors are going to ignore a judge’s clear instructions, the threat to the jury system is from the disobedient and illegal behaviour of jurors, not from “social media”.

257 4. Whether majority verdicts should be introduced: No: Our jury did need to deliberate before reaching its unanimous verdict, but this was an essential part of our work. With “majority verdicts”, the need for useful deliberation might be reduced and that would not be good for justice.

5. How the system for exemptions from service on a jury works and whether the circumstances in which people may decline to serve should be broadened (for example to allow self-employed business people to refuse to serve more easily): The issue of the self-employed is a tough one. I would not like to lose their contribution, but they should not be expected to suffer financially – or, in the extreme, lose their businesses – because of jury service. Fairer payment for jury service (cf. point 9. below) is part of the answer. Another idea might be to offer the opportunity (non-existent at present I understand) to plan and schedule jury service with much longer advance notice (as is possible for one’s vacations and holidays) or even to formally defer it into a person’s retirement years (cf. point 8b, below)?

While the “self-employed” are not exempted from jury service, a long list of valuable professionals are excluded, specifically via “Group E” in the list of “Ineligible Persons”. This list includes doctors, nurses, dentists, firemen, lighthouse keepers, etc. Mostly these people are not involved in the legal system, and could participate quite properly and usefully on a jury. The cynic might reasonably conclude that these people (being mostly employed by the government) are excluded from jury service to avoid the government having to pay their full salaries and benefits while they are on jury service, whereas others (employees, employers and the self- employed) can be expected to subsidise the justice system by supplying jurors on the cheap?

6. Whether the jury would benefit from a secretary to advise them, much as magistrates have the services of a legally qualified clerk: Unnecessary: Guidance was (and presumably always is) available from the judge, who is perfectly capable and indeed ideally positioned to do so. A “legally qualified clerk” would presumably be less qualified than a judge.

Lay magistrates, because they themselves are not legally qualified but do have to interpret the law, may well require a legally qualified clerk to advise them on points of law. By contrast, the role of a jury is to consider matters of “fact”, not “law”. At worse, and related to point 2. above, the introduction of a “legally qualified clerk” into the jury room could interfere with the traditional independence of lay juries.

If there are funds available to pay for “legally qualified clerks”, justice would be better served by using them to better compensate jurors (cf. point 9. below).

7. Whether juries should be required to give reasons for verdicts and, linked to this, whether they should routinely be given written instructions by the judge about matters to consider: The jury system has functioned well for hundreds of years, without these proposed novelties; and based on my limited experience it still does function well. I understand judges already have considerable discretion to instruct the jury.

Page 2

258 8. Whether the Electoral Roll is appropriate for selecting juries and, if not, what an alternative might be: a. I understand individuals are entitled to register on the Electoral Roll based on mere residence, with no requirement that they also be citizens. Presumably this means individuals who are not citizens of the jurisdiction can nevertheless serve on Isle of Man juries, which I think is wrong (the requirements for obtaining citizenship do, or should, include some appreciation of the jury system, which non-citizens may lack).

b. One glaring defect with the present system, is the exclusion of individuals on account of their being over 65 years of age. In reality, you will surely agree that such individuals – generally having wide life experience and often spare time on their hands – are on average going to be at least as well qualified for jury service as anyone else. Any concerns that such individuals lack the capacity for jury service could and should be addressed, but not by a blanket ban based on age (by that logic, we should also stop all people from driving at age 65, but we don’t – but we do set vision and medical requirements for all drivers).

Aside from the practical issue (of excluding many excellent jurors), this age discrimination offends against the now-fashionable spirit of treating people equally, and may be (and surely should be) in breach of upcoming “Equality” legislation.

9. Whether the current system for payment for service on a jury is appropriate: I think it’s important that juries be selected from, and thus reflect the experiences and judgement of, a broad range of citizens in the community. Accordingly, neither jurors (nor their employers) should be expected to suffer financially because of their jury service. Fairer payment for service (more accurately reflecting each juror’s actual loss of income caused by his jury service) should be introduced.

Should the Select Committee wish, I would be willing to appear before them to answer questions concerning this submission, etc.

Submitted November 2015,

Graham Hurley

To: Roger Phillips, Clerk of Tynwald - [email protected]

Page 3

259 260

Appendix 14: Submission dated 11th November 2015 from Matthew Warren

261 262 Submissions should be sent to the clerk of the committee, Roger Phillips, at Legislative Buildings in Douglas by Friday, November 27.

Matthew Warren

11 th November 2015

Please accept my submission to the committee ref Jury Service

I was a juror for 5 weeks early in 2015 and feel I can comment on the following:

7 or 12

Whenever possible 7 is more suitable, only on very serious cases 12 should be used.

As a small Island it is very difficult to get 7 let alone 12 people to be jurors, who are not know/related/worked with the case.

Juror training

Perhaps there needs to be a small computer test taken by all jurors (like the theory driving test), that can be taken in waiting times, to ensure they understand all issues that a juror must know, including social media, before during and after a trail, and impacts/consequences that could happen.

Majority verdict

Majority verdicts should be introduced; the pressure for there to be a unanimous verdict is a great pressure on a juror. The fact that it could force a retrial is a great waste of money and time.

Exemptions

Exemptions should stay as they are, but if you have a serious case, 3 years off is not enough. After a murder, you should be free not to serve again or at least for 10 years.

Secretary

I do not think a secretary would be helpful - as it would raise more questions. The coroners used at present are very knowledgeable, and know when a note needs to be sent to the Deemster.

263 Reasons for verdicts from the jurors would open up the verdicts to be challenged. Better to be Guilty/not guilty only.

The electoral roll is the best way — as to take lists from doctors would be invasive.

The aging population of the Island may need to see Jury service increase to Retirement age +10

So that up to 10 years after retirement may be called on.

Payment

Payment is an issue that shocked me the most.

was not aware that there is no compulsion to pay salaried staff for Jury service. I finished my jury service, then went to work from 7 till 9.30 every evening. I was exhausted. Then after 5 weeks I was told that I wasn't going to be paid. (apart from the jurors allowance) You can imagine my shock and conflict this caused in the workplace. After a lot of fighting I did get paid, but I was forced to show appreciation to my manager, when I had no choice in the matter.

I would like to see it compulsory to pay staff on Jury service. This should be classed as 'public service'

If a small company has had someone on Jury service, perhaps if a 2nd person is called, this can be differed until the next year. (so only 1 person can be taken from a small company, less than 10 people, per year)

No lunch or transport should be provided. Perhaps Bus tokens, we are a small island, busses should be used.

This would simplify different payment rates streamlining the system.

Access to Gov staff canteen should be an option; waiting out in the rain for the doors to open was not welcoming and full of conflict of bumping into the defendant's family.

Thank you

Matthew Warren

264

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