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 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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