My heartiest congratulations to the Director of Public Prosecutions, Christian Rocca, who was recently appointed Queen’s Counsel (and to Nigel Feetham who was similarly honoured). In preparation for an earlier column I wrote regarding aspects of the jury system in Gibraltar Mr Rocca very graciously gave me access to the dissertation he submitted as a law student at the University of Essex. It made very interesting reading.
One of his key proposals for reform was that jury service be made compulsory for women. Yes, surprising as it may seem to younger readers, as recently as 1993, when Mr Rocca completed his thesis, only men featured on the jury list; women had to volunteer if they wanted to be included. Indeed, as Mr Rocca noted: “up until 1960, women were not even recognised as potential jurors”. Thankfully this “anomaly” was eventually put right and both women and men are now called upon to serve.
However, another concern highlighted by Mr Rocca remains as valid today as when the jury system was first adopted in Gibraltar in 1830: in a small jurisdiction, where everyone knows everybody else, how impartial can a jury truly be? Hardly at all, according to one time Governor Sir Archibald Hunter. Back in 1913, Mr Rocca reminds us, Sir Archibald had the temerity to suggest that the jury system be abolished, describing local juries as “partisan and notoriously unjust in favour of their own”. His words provoked quite a storm and he was “summoned back to the UK, never to return”.
Yet three-quarters of a century later the incumbent Attorney General, Ken Harris QC, said much the same thing. He reportedly told this newspaper in December 1991 that because of Gibraltar’s small size, “It is very difficult to be, and remain, completely impartial, whatever counsel or the trial judge may say…I am concerned that a number of verdicts in recent years have, in my opinion, been completely contrary to the evidence”.
Meanwhile, in his 1985 paper “Problems of jury trials in small jurisdictions”, Sir John Spry, an ex-President of the Gibraltar Court of Appeal, asserted that “In some islands, a local person charged with an offence against a foreigner is almost certain to be acquitted, while a foreigner accused of an offence against a local is equally likely to be convicted.”
Regrettably, statistics seem to back the view that Gibraltar juries are much likelier to convict foreigners than locals. An analysis by the now Registrar of the Supreme Court, Liam Yeats, of the verdicts in criminal cases between 1983 and 2013 shows that only a quarter (25%) of non-local defendants were acquitted, whereas three-fifths (60.5%) of locals were.
This issue alone seems to me a pretty good reason to reconsider whether we should persist with our jury system. But there’s the further argument that in Gibraltar we may be exposing jurors to unreasonable levels of stress. An indication of this came in the murder trial I referenced in last month’s column, in which the jury returning a guilty verdict asked for a counselling or support service to be established to help them, and future jury members.
If the jury system, because of jurors’ tendency to acquit locals and convict non-locals, is “failing to perform properly and impartially” as Christian Rocca asserts in his dissertation, and on top of that jury members’ health may be damaged by trauma, shouldn’t we at least have a rethink?