November 13 - 19, 2010
TURKS AND CAICOS WEEKLY NEWS
5
NATIONAL
Trials Without Jury Bill gets green light By Gemma Handy CONTROVERSIAL legislation to axe the automatic right to a jury trial has been given the official seal of approval. The long-debated step has continued to stir up a hornet’s nest since first touted in the aftermath of last year’s probe into government corruption. Consultative forum members remained fiercely divided on the issue at Tuesday’s meeting with six voting for and six against the proposal. It was carried after ex officio members, public service chief Mark Capes, Attorney General Huw Shepheard and permanent secretary for finance Delton Jones, lent their support to the Bill. All that remains for the Trials Without Jury Bill 2010 to be enacted is the Governor’s signature. It has already been backed by the advisory council. The fact that wheels for its ratification were set in motion before the constitutional reform process is complete has invoked the wrath of many Islanders. The move was originally suggested in February 2009 when lawyers for former Premier Michael Misick argued that the ex leader would not get a fair trial. Prosecutor Helen Garlick also
deemed it extremely difficult to empanel an impartial jury given the volume of publicity generated by the Commission of Inquiry. Removing the automatic right to a jury will not be limited to proceedings emanating from the Commission but to any case where a fair trial is regarded impossible. Those in favour say it is vital to ensure justice, given the country’s tiny pool of potential jurors and that it will only be used in exceptional circumstances. They also say the majority of cases are already heard by a lone magistrate. But it has sparked outrage among some who feel that being tried in front of one’s peers is a fundamental civil liberty and a democratic right. Forum member and attorney Sharlene Cartwright-Robinson declared jury trials a “hallmark of democracy”. She said removing them was an unnecessary step as judges already had the power to direct jurors. “I have not been provided with any statistics to show that jury trial has failed,” she told the meeting. “I believe that there are men and women in these Islands that can deal with complex issues, that are not bothered by lengths of trials in carrying out this vital role and who can understand right from wrong.” She added that she would rather
NHIB chief’s business ... continued
and transparency.” In a recent letter penned to the TCI Journal about the issue, Mr Regan wrote: “Now you have to be in the Land of Deaf Dumb & Blind (or TCI) to realise this is not a great position to be in. “Potentially, as things stand in TCI, one person controls the software that, in turn, controls all the NHIP information and data. “Those with long memories will recall that the initial registration forms contained a waiver permitting the use of personal information, not to mention access to bank records: do you really know what has happened to your information?” Mitan’s website states it can provide “real time autoadjudication” of medical claims. It uses the internet to communicate information between health care providers and insurance companies. This means claims
can be settled faster. Mr Hogan told the Weekly News: “In the very first inaugural board meeting I disclosed my minority interest to the board. “I also excused myself from any board meeting discussions about the possibility of using the product. “There was all the good governance you would expect from a well managed organisation.” He said every system within NHIB met or exceeded HIPAA guidelines – the US standards used to protect people’s medical records and other personal health information. Nr Hogan added: “HIPAA specifies all standards that have to be maintained to ensure patient confidentiality and security of documents. “The board of directors is mandated to meet or exceed those standards.”
Consultative forum chairman Lillian Misick said party politics were so embedded in TCI life they could sway a jury’s decision.
see a person’s fate placed in the hands of their peers rather than “the single pair of hands of a judge who can be just as subjective or be tampered with as 12 single men on a jury”. The attorney also quoted a statement from the Bar Association which denounced the measure, describing it as “disappointing” and one taken “without any consultation”. “The right to be judged by one’s own peers is recognised in many countries as part of the international human rights.” The statement said jury trials had been a constitutional right since 1976 with a provision for them under
the law since around the turn of the 20th century. “Whilst it may be true that some jurisdictions do not have the right to a jury in criminal trials, it is also correct that many of those jurisdictions do not have a heritage of trial by jury, as exists here.” However forum chairman Lillian Misick said the civil right at issue was not the right to a jury trial but the right to a fair trial. “I believe that justice must be balanced by fairness. And in this context, we should never be so overly concerned about weighing the scales of justice in favour of the defendant that we ignore the categorical imperative of ensuring that justice is done for the victim or aggrieved party. “Moreover, in weighing the interests of the parties involved in each case, let us be mindful of the prevailing fact that we the people also have an interest in fair trials - as crimes committed against the individual are, by definition, crimes against the people.” She said party politics were so firmly embedded in TCI life that it could sway a jury’s decision. “We are not in the United States where, in order to get an impartial jury, a party can request a change of venue.” The chairman continued: “This is why I respectfully submit that we should preserve the right to
trial by jury only in those cases where political passions are not so implicated as to guarantee an unfair trial. “In cases where those passions are likely to rear their prejudicial heads, trial by judge should obtain.” Mrs Misick added that the Bill was not perfect, as with any legislation. “The only difference is that this Bill has incited far more political passion amongst our people.” Britain’s Overseas Territories Minister Henry Bellingham – a lawyer by profession – previously said the change would simply offer flexibility and that each case would be assessed individually. Mark Capes, head of the public service, said there would be recourse for appeal through the Court of Appeal where cases would be heard by a team of three judges. The automatic right to trial by jury was axed in England in 2003 after four years of debate. It provoked a storm of reaction from lawyers and civil rights groups who claimed it was an erosion of the justice system. Others argued that the right to trial by jury was not fundamental as minor crimes in the UK were heard by magistrates, setting a precedent against jury trials. England’s first crown court criminal trial to be held without a jury in more than 350 years took place this year.
Fired Malcolm in legal talks By Gemma Handy OUSTED immigration boss Alonzo Malcolm has confirmed he is seeking legal advice after being controversially booted from office. The former Director of Immigration was suspended indefinitely following an undisclosed “disciplinary matter”, according to a government statement released on Monday. Mr Malcolm’s suspension comes days after travel letters used by foreign workers awaiting work permits were axed amid claims of “fraud, forgery and abuse”. Border Control Ministry bosses asserted “serious concerns” of misuse which threatened the “good order and security of the Islands”. Monday’s statement said Mr Malcolm had been told by the Public Service Commission (PSC) to
“take leave for an indefinite period, following their consideration of a disciplinary matter, to which he now has an opportunity to respond”. Within hours of the news, protestors gathered outside the department’s headquarters in downtown Providenciales to condemn the decision. Among them was Provo resident Euwonka Selver who told the Weekly News: “I am very upset about what happened. “I do not believe the Public Service Commission authorised it. They didn’t appear to know anything about it. “The Governor does not have the power to remove Mr Malcolm from office. One of Kate Sullivan’s recommendations was that he be given the power to remove permanent secretaries and heads of department. “He is doing things he is not yet
authorised to do.” In September British MP Andrew Rosindell triggered polemic when he recommended the immigration department be shut down. The chairman of the TCI All Party Parliamentary Group, who visited the TCI in August, said the entire public sector should be rebuilt from scratch amid “endemic corruption and malpractice”. “The Immigration Department in particular should be the first to be closed down and reopened under new management as an urgent priority,” he wrote in a report to UK Ministers. An acting director is due to be appointed. In the meantime, the public should contact under secretary Sharon Taylor regarding immigration issues. Mr Malcolm told the Weekly News he was discussing the matter with his lawyers.