Jury proposals raise concerns
(CNS):Proposals to recruit permanent residents to serve on juries has met with opposition and concerns. Argumentsthat this would undermine the most fundamental human right of being tried by a jury of one’s peers and that without the right to vote there should be no obligation to serve have come from the community at large, the political arena and from academia. Former UDP minister and UCCI president Roy Bodden described it as “dangerous”, while the MLA for North Side said the jury was one of the last places where Caymanians were still properly represented in the justice system. Meanwhile, vocal public opinion against the idea is emerging from both locals and ex-pats, who for different reasons oppose the proposals.
Opposition from the community is coming from two sides: some permanent residents oppose the suggestion as they say that because government excludes ‘ex-pats’ in the democratic affairs of the country it should not be able to include them when the situation suits. The view that unless expatriates have the right to vote they should not be expected to sit on juries, which is seen as undemocratic, has been expressed on the CNS comments board and elsewhere in local public forums.
On the other hand, opposition coming from Caymanians reflects the idea that it would be fundamentally unfair to allow a person from overseas without real ties to the community and culture to decide the fate of a local charged with a crime. This view was also articulated by UCCI President Roy Bodden, who said the move would not only be precedent setting but it would also be dangerous as it deprives people of their most sacrosanct human rights.
“I have done a quick search and from 1700 BCE when Hammurabi published the modernising Code of Hammurabi, down through the era of the great Roman Empire, no such precedent existed,” Bodden stated. “Even Pericles, the great Athenian and the Father of Democracy, stopped short of such an unwarranted gift. Fast forward through the centuries of European domination of the then known world and no imperial power would dare think of empowering aliens to sit in judgement over their citizens.” Bodden added. “There is no compelling reason why any society would wish to surrender such a responsibility to persons who have yet to prove their allegiance and commitment to their proposed adopted society.”
He questioned how far such a precedent could go, not least the possibility of allowing non-citizens the right to vote. “As I see it, citizenship in the Cayman Islands, cheapened already by multiple competing interests, will be devalued into worthlessness,” the UCCI leader said.
MLA Ezzard Miller also said he objected to the proposal as he felt that this was the last stop in the justice system where Caymanians maintained a level of comfort that they would face their peers, given the traditional domination of the criminal justice system by ex-patriates, from the police through to the judiciary. Miller said he felt the problem the proposal was trying to address would be better resolved by looking at the system.
“It is the system that needs to be addressed to assist in jury selection, such as legislation compelling employers to allow employees the time off to serve without penalty,” Miller said. “It is not that Caymanians do not want to serve but is the problem of getting people to the court.” Furthermore, if jurors could park without risk of getting an $85 dollar fine when serving, that alone would swell the ranks of willing citizens.
The system has also been criticised in the wider public domain, with many Caymanians claiming they have never been called to serve, despite being on the voters list for several years, while others complain of being called to pools more than once.
The proposals to expand the jury pool which forms part of a draft amendment bill is currently in the public domain for comment. The issue has arisen as a result of regular and very real problems of finding people to serve as jurors who are not related or connected in some way to the accused, the witnesses or even the attorneys involved with a trial. The combination of close connections and the right of both the crown and the defence to challenge jurors means the selection process can be long and drawn out.
On one occasion last year at a trial that involved four defendants the entire jury pool was exhausted and the court staff were forced to take to the streets of George Town to find people eligible to serve on only a seven man panel.
Anyone wishing to add their thoughts to the bill should contact Tesia Scott in the Attorney General’s Chambers, 4th Floor, Government Administration Building or by email tesia.scott@gov.ky by Friday, 6 May.
Category: Crime
Here is a “Jury of my Peers”:
1. Under 5’9” in height.
2. “Brown” skinned.
3. Educated at the “Doctoral level”.
4. Male.
5. Having lived on at least four continents.
6. Having an above average income.
7. Only having two dependents.
8. Possessing at least two passports.
9. Driving an excessively large vehicle.
10. Preferring to ride a bicycle (but the water authority refuses to repair the road by Grand Harbour for months at a time).
11. Being “liberal” in a “right wing” island.
12. ETC.
Any takers?
I need at least fifty, as I will know the rest of you.
This debate throws into sharp relief the fear and xenophobia which are so deep-rooted in the Cayman Islands.
What is it that makes an un-naturalised permanent resident incapable of discharging jury duty? The fact that even though he has gone through innumerable bureaucratic hoops and incurred great expense in achieving that status, he has not sufficiently “committed” himself to the society in which he lives? The fact that he doesn’t understand Cayman culture? The arrogance of these assumptions is breathtaking.
The only qualificaiton necessary for jury duty is the ability and willingness to hear the evidence impartially and to make a decision based on it.
Frankly, if I were ever on trial, I would have greater faith in a jury of ex-pats than I would a jury of Caymanians – at least then I would know that my fate would not be decided on the basis of the colour of my skin, the district I come from, my religious beliefs, or who I knew.
Re: "Frankly, if I were ever on trial, I would have greater faith in a jury of ex-pats than I would a jury of Caymanians – at least then I would know that my fate would not be decided on the basis of the colour of my skin, the district I come from, my religious beliefs, or who I knew"
"Roy and Ezzard’s ramblings just show how xenophobia remians alive and well in Cayman at a deep-rooted widespread level."
Lol!
Please … please state your nationality – and "race" for that matter!
It amazes me how out of touch with the daily reality of the "other sides" some people are today.
Have you been asleep throughout your lifetime, or are the countless reports of inequality within (insert any western nation) nothing but sensationalized myths in your mind?
The truth of the matter in Cayman today is that many expats, for the first time ever, are having to deal with not being "Priority 1" within their immediate surroundings.
Granted most likely had no idea of their advantageous situation within their homeland however, hundreds of millions of people (many of whom are actual nationals by way of generations) in your home countries are forced to endure far more than any expat on Cayman soil.
It is called the real world folks – welcome to it.
In regards to the story at hand, many Caymanians are claiming they have never been called for jury duty despite the fact that they are registered and available to do so.
Perhaps we ought to make a preemptive and voluntary effort to shore up and fine tune the jury pool database. This is one simple yet crucial way in which we can serve our country and people today.
It actually thows into the arena more than nationalism and xenophobia pure racism if truth be told. Roy Bodden etc have some strange logic – if you follow what they say in that caymanians should only have a jury made up of caymanians then an expat tried for an offence here should equally have no caymanians sitting on his jury…it should be all expats
To say that caymanians cannot receive fair trial if a jury member is an expat is pure racism.
Reading between the lines, Roy and Ezzard and plenty like them would feel uncomfortable if accused of a crime and facing a jury of other than true-born Caymanians. Unfortunately I and many other long term residents feel similarly about facing a jury of Caymanians. If God forbid I or a close friend or family member stood accused of something serious one day, I would recommend requesting a single judge try the case rather than a local jury. Why? I would trust a single judge’s ability to understand the facts of the case and to make a fair judgement. But with a local jury there are too many unknowns.
By asking permanent residents to do jury duty you are stating that you value them as members of the greater community. Why should that be so unappetising?
Roy and Ezzard’s ramblings just show how xenophobia remians alive and well in Cayman at a deep-rooted widespread level.
Who really wants to be on a jury panel? I am 100% sure permanent residents are not clamouring or lining up for this unnecessary ‘duty’.
What happens when an accused elects for trial by judge alone. Where will they find a CAYMANIAN JUDGE. Trials in the magistrate court are presided over by NON-CAYMANIAN magistrates. There goes your most sacrosanct human right, up in smoke.
Do not forget nearly all the lawyers, both defence and accused are non-Caymanians. The final appelate court to determine whether your rights are infringed or to finally determine your innocence is the Privy Council.Guess what, you would not find a Caymanian there (lol). Difficult situation to resolve.
Arrested by a foreigner
Prosecuted by an expat
Judged by yet another!
Could this happen in Jamiaca?
How about the Bahamas?
Or maybe Honduras?
Instead of the thumbs down, name one country! Thanks
Most Commonwealth countries allow Commonwealth citizens to serve as jurors. I don’t know where these people got their facts. In any case, what is the big deal with jury duty? Nationality is not a qualifier for decency, which is the main qualifier for jury duty. And, who is one’s ‘peer’? That is the main assumption that needs to be properly defined. Clearly, Caymanians have no peers who are not Caymanian; nor do Jamaicans or Fillipinos. But only if nationality is in issue. I thought persons of differing nationality and race could have comman social strata and occupations; even culture.
In the UK you HAVE to be a registered elector (voter) to be eligible to be a juror. In the USA you have to be a US citizen to be a juror.
But in Cayman we are accused of being xenophobic because we dare to utter our desire to maintain a similar system!!!
I SAY LEAVE THE SYSTEM ALONE AS IS. why would we want to change this. if the court would look at the entire voters list and stop calling the same people every year they would get enough jurors. i would to know why the attorney general cannot advise goverment on better issues than this one. the ag need to go not the present jury system
I would never want an East End resident to sit at jury on my trail when I am from George Town; or, vice versa. I think first of all, a juror, should be a BORN Caymanian with no criminal record; and second, I think that person should be one from the same district from which I am from. So pledging allegiance to Cayman or merely born in Cayman, I think is not enough to qualify someone as a good juror. Another thing, because a district can be a small community, I recommend jurors being able to hid their faces in court. Like have a tinted glass in front of them. That way you won’t have accused persons intimidating jurors.
So you want only faamily on your jury.. wearing a nice pair of shades maybe. Way to go!
Ignorance.
A sad reflection of what is out there.
I guess ignorance is not noticeable to the beholder.
Third world, truly third world.
No one can challenge this.
ECHR Article 6, the right to fair trial, states –
1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion ofthe court in special circumstances where publicity would prejudice the interests of justice.
2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.Everyone charged with a criminal offence has the following minimum rights:
There is no actual right to be tried by a jury and exactly what an ‘independent and impartial tribunal’ might be is not defined but it could be argued, based on some verdicts in recent years, that a 100% Caymanian jury in a country where roughly half the population is ex-pats can never be either independant or impartial. In fact it might be fairer, as has recently been suggested, to do away with jury trials all together.
By sticking to the current system the Cayman Islands runs a serious risk of suddenly finding that all jury verdicts are challenged, not because the defendant was innocent but simply because the trial failed to comply with Article 6.
Mr/Ms Echr–none of this applies, not matter how often you claim it.
Maybe you should read the recent Grand Court case that says it does.
Going by the daily comments on CNS alone it is clear to a blind man that this proposal is a very dangerous one.
Many in our midst have no regard whatsoever for a Caymanian.
Many expats / permanent residents are unable to see beyond their own self-absorbed and conceited noses.
However, whenever one talks the truth on these matters he is attacked and ridiculed.
People – kid not yourselves … color matters, race matter and culture matters in this year of 2011.
Yes it is a sad state of affairs, but this is simply the way it is.
The quicker we realize this truth and act accordingly the better off everyone will be.
Interesting that you all have interpreted the word “peers” in a particular way. The origins of the right to jury trial came from a rejection of monarchism in the Magna Carta. This was to ensure that common men were not judged by the enobled. Thus a jury of his “peers” did not mean necessarily of the same nationality. Many nationalities appear in front of Caymanian juries. Some years ago a police officer by the name of Mr Hannah who was a white Canadian was tried and convicted by a jury in Cayman. There are also Jamaicans, Hondurans, Phillipinos etc who are tried. By the anaology made by Mr Bodden these people are not being tried by their “peers” and therefore upon his submissions these trials are somehow less valid. This is of course nonsense. All this serves to do is widen the pool of jurors. The effect of this is that the tribunal of fact is less likely to know any of the parties and secondly to ensure that jurors are called less often for this service. Because of the somewhat antiquated system of assizes in this jurisdiction the burden upon prospective jurors is heavy – they are required for a period of 3 months. For many years the legal profession in Cayman that practice in crime have asked the Chief Justice to remove this system of assizes as it has several peculiarities which are cumbersome and very inconvenient to the efficient running of the the criminal courts at Grand Court Level. If the assizesittings were abolished so that cases were sent to the Grand Court on a rolling basis (as happens in England) this would allow for jurors to sit on a two weekly sitting and thereby make being on a jury much less inconvient to individuals and companies who may lose staff and monies during their period. This would make jury service more welcome. As for the issue of Caymanians only it seems to suggest that those of other nations are less likely to be able to follow the oath of the juror to try faithfully upon the evidence. I fail to see any support for this contention other than sheer racism I am afraid. I have yet to hear any sensible submissions for the retention of the assize system although I look forward to anyone giving some on CNS.
I love when you folks talk about the Magna Carta, Hammurabi, and Pericles. It all sounds so high-toned I almost fail to notice the irrelevance.
Persons without the right to vote in the Cayman Islands should not have the power to make case law. It is simply wrong!
Juries do not decide law, they decide fact
Anyone who says juries decide facts has never seen one in deliberations. They decide “something” but it is only accidentally the facts.
What a staggeringly ignorant comment from someone who purports to speak with knowledge and authority on so many topics. Juries do not make case law. They decide issues of fact, and fact alone. Judges, on the other hand, do develop case law. Are you suggesting that only naturalised Caymanians should be able to sit as judges? If so, bye bye to the financial industry…
You can engage in all the verbal acrobatics you wish, because that’s like arguing whether it is the engine or the tires of a car that gets you from point A to B. They work together.
Clearly it’s not enough for you that some judges are non-Caymanian; you also want the juries to consist of non-Caymanians as well. Your push is not just about non-Caymanians being jurors, it’s also about getting non-Caymanians the right to vote in the General Elections.
Calm down, dear. Your lack of knowledge on legal matters has been found out. No need to go on some bizarre rant about my opinions (of which you know nothing). The simple fact is that juries do not make law nor do they decide law. They have an utterly different function to judges in jury trials. Differentiating the two is not “engaging in verbal acrobatics”, it is pointing out the fundamentally different functions that they perform.
Er, no. It is not like cars and tires at all. Juries have no role to play in case law whatsoever. It is not "verbal acrobatics", unless by "verbal acrobatics" you mean "pointing out something that is obviously wrong".
I think this comment sums up the weight we should attach to your other legal pontifications especially those about owning, using and killing with guns.
Utter gibberish.
That arguement infers that other residents of Cayman are somehow inferior to Caymanians. In my book EVERYONE is equal.
What is more of a concern is the precedent being set where registered voters represent the jury pool. So giving someone with residence this right may be cause for them to later argue that they want "full" rights and not a portion of rights. We need to be mindful of the longer-term implications of what may seem like a good idea now.
Yeah, when you go independent it’s going to be tough to deny citizenship to everyone but “born” caymanianas
This idea is a sign of the desperate state of the jury system within the Cayman Islands. Unfortunately it is an impossible answer to the problem and Caymanians will never accept it nor will Expats.
Clearly there is a problem with the jury system in Cayman but another answer is required.
If a paper Caymanian can be “cursed out” for allegedly voting in a particular party at the last election, can you imagine a jury partly consist on non-Caymanians? I think this is a dangerous issue and should be carefully considered before implementation, if implemented at all.
That is a good point Tara. Only if the person charged is Caymanian can it be said that he faces a jury of his peers. Although, you could take that one step further because if the jury member obtained Caymanian Status other than through residing in the Islands for the requisite period of time, then even with Caymanian Status that jury member cannot unequivocally be said to be a peer.
My question is, how do you enlist people who are not registered voters? How do you find out that someone has not registered? I have been a registered voter for 15 years and I am yet to be called for jury duty, same goes for 10 of my colleagues with whom I have has conversations on this topic. The current jury pool is not being fully utilized and it should be before we broach the subject of permitting PR holders.
Perhaps a PR holder who has had PR long enough to qualify to be Naturalized would be a useful asset to our jury pool because assuming he obtained PR and has maintained his PR for this long it should be relatively safe toassume this person is as competent to serve as any Caymanian, born or otherwise.
Very good poinst Tara and Subway Cookie. I agree that there is something wrong with the registered voters who have not yet been called to serve to jury duty while I have served twice. From the voters list go in alphabetical order if you have to. I believe that all born or naturalized Caymanian only should be eligitable. As far has those not registerd voters I am certain that a list exist at Immigration, passport office or else how would you know who to let in the country that don’t need to be given time to stay. Parking is a problem and potential or chosen jurors should be given a special pass with a number and date of issue that could be hung from the mirror and returned once the juror is dismissed and held accountable by the person signing and agreeing to the rules. Need to pass legisslation that failing to do so would result in a large fine and same should be for anyone attempting to forge one. Make serious and black and white and would be an offence for any of thise persons to have their well clamped. God Bless
Perhaps it is time to include all Caymanians in the jury pool to see what affect this has on the system. At present there are numerous Caymanians who don’t register to vote for the explicit reason of avoiding jury duty.
Roy Bodden is either an incompetent researcher or is being disingenuous. In the UK, Commonwealth citizens and EU citizens are entitled to be jurors.
If we are using the Code of Hammurabi as some kind of model of criminal justice, we have to start lopping the hands of people who hit their fathers. We should also implement this: "If anyone brings an accusation against a man, and the accused goes to the river and leaps into the river, if he sinks in the river his accuser shall take possession of his house. But if the river proves that the accused is not guilty, and he escapes unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser."
Not only are Commonwealth citizens living in the UK entitled to be called for jury service but also they have a vote in local and general elections. Furthermore they can seek election to local Councils and even Parliament! How differently ex-pat Brits are treated here compared with how Caymanians are treated in the UK.
Damn glad we’ve got no river.
At this stage I have no confidence that there is actually a proper process in regards to people who are called for jury duty to ensure that not the same people are called frequently and that this duty is spread around equally. Much like everything else government touches, I would hazard somebody is asleep at the wheel and that is what needs fixing.
To the point of “if jurors could park without the fear of getting fined”……….The CI$9 mil that was just put aside for the hurricane shelter in the Brac plus all the money wasted on the road and parking lots pavings over there would have gone a long way to built a court facility outside GT, where sufficient parking, updated security and some sort of privacy could be maintained……….but then I guess the government has its priority sorted…..
Well, the place where the old Tower building used to be would have made a great Multi-storey car park, but NOOOOO, government chose instead to build a monument to their own egos there….go down and have a look at the plans for the lot….it’s LAUGHABLE!!
If Mr. Bodden feels that “[t]here is no compelling reason why any society would wish to surrender such a responsibility to persons who have yet to prove their allegiance and commitment to their proposed adopted society” would Permanent Residents who have been naturalized, and therefore sworn their allegiance to the Cayman Islands, not qualify?
Correct me if I’m wrong but the arguments stated above that "this was the last stop in the justice system where Caymanians maintained a level of comfort that they would face their peers" and that "this would undermine the most fundamental human right of being tried by a jury of one’s peers" is not a valid argument when one considers that we do not only try Caymanians in the Cayman courts.
… and if a Caymanian was in Jamaica before a court of law, the jury should only consist of Jamaicans…
I think the point is that the society we live in is not reflected by the very limited number of people entitled to serve on a jury, and certainly not by those privileged few who actually register to vote and then get picked.
I do not see how, in all good faith, a jury system which produces such a limited number of candidates to serve, all of whom have “privileged” nationality status, can possibly be a fair jury for those who do not possess that status. All it can be is a tribunal of the “top rank” over the (as Barlow would say) indentured workers (or just the tourists).
Allowing permanent residents (or even anyone who has lived here for 5+ years) to serve, with an option for them to say no, would allow the committed ones to prove their intention to support the democratic and judicial system of Cayman, which ought to be a pointer for obtaining further status privileges. Those who say no (without a health or other good reason) before even turning up at court to be empanelled would show a lack of commitment and have points docked accordingly.
It would be more accurate to say "If a Caymanian was in Jamaica before a court of law, the jury would consist of black, white, arab, indian, latin, chinese, and every imaginable combination in between." You are correct, they would all be Jamaican, BECAUSE NO MATTER THEIR BACKGROUND, THEY WERE INTEGRATED INTO SOCIETY. They all have the same rights. What a concept.
I’m no legal brain but the key in the excerpts you copied I have put in caps for emphasis.
this was the last stop in the justice system where CAYMANIANS maintained a level of comfort that they would face their peers” and that “this would undermine the most fundamental human right of being tried by a jury of one’s peers”
Look man, stop talking hogwash!
You trying to tell me that when a Caymanian commits a crime in Jamaica he will have a jury that has Caymanians on it!
Get real and quick!
Go ask “Gibba” if he was tried by Caymanians for something he didn’t do.
You beat me to the punch, exactly what I was going to add. What is good for the goose is good for the gander!