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 __________________________________________________________________ 30 JURY SELECT COMMITTEE, FRIDAY, 19th FEBRUARY 2016 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. __________________________________________________________________ 31 JURY SELECT COMMITTEE, FRIDAY, 19th FEBRUARY 2016 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. __________________________________________________________________ 32 JURY SELECT COMMITTEE, FRIDAY, 19th FEBRUARY 2016 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.