Mussington v Attorney General of Anguilla; Gumbs v Attorney General of Anguilla
| Jurisdiction | Anguilla |
| Judge | Edwards, J |
| Judgment Date | 31 March 2004 |
| Neutral Citation | AI 2004 HC 6 |
| Docket Number | 2001 of 044; 2001 of 045 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 31 March 2004 |
High Court
Edwards, J.
2001 of 044; 2001 of 045
Mr. Thomas Astaphan with Mrs. Nadine Fleming Kissob for Daniel Mussington
Mrs. Josephine Gumbs Caoinnor for Mervin Gumbs
Mr. Ronald Scipio, Attorney General with Mr. Ivor Greene for respondent
Company law - Fundamental rights and freedoms — Right to a fair hearing — Whether Jury Act, Cap. 39, s. 279(a) and (b) violated the applicant's constitutional rights — Motion brought prematurely and therefore dismissed.
Introduction
The applicants Daniel Mussington and Gervin Gumbs stood indicted at the June 2001 Assizes.
Mr. Mussington was charged for causing death by dangerous driving. Mr. Gumbs was charged for assault occasioning actual bodily harm.
Before their trial commenced, with the leave of the court, they each filed a notice of originating motion, seeking 2 declarations concerning the constitutionality of sections 27 (a) and (b) of the Jury Act, Cap. 39 of the Revised Laws of Anguilla, and section 31 (1) of the Criminal Procedure Act 2000. The challenged provision in the Jury Act is now section 26 (a) and (b) of the Jury Act Revised Statutes of Anguilla 2000, Chapter J 15.
The court, having consolidated the motions, on the 10th October 2001 determined the substantive proceedings concerning the Criminal Procedure Act, on a preliminary objection made by the respondent.
The reliefs claimed were struck out for being an abuse of the process of the court. The applicants appealed.
The proceedings concerning the Jury Act remained unheard and pending for an unknown reason.
The motions were rescheduled for hearing on the 3rd June 2003, after the Court of Appeal delivered its decision, dismissing the appeal on the 11th November 2002 (Civil Appeal No. 4 of 2001).
The Case of the Applicants
By their motions Mr. Mussington and Mr. Gumbs have each asked the court for the following relief –
(a) A declaration that section 27 (a) and (b) of the Jury Act, Cap 39 of the Laws of Anguilla violates the applicant's constitutional right to the protection of the law and to a fair hearing by an independent and impartial court established by Law as guaranteed and enshrined by sections 1, 9 and 16 of the Anguilla Constitution 1982 and is therefore unconstitutional null void and of no effect.
Section 1 of the Anguilla Constitution declares that all persons in Anguilla are entitled to certain rights and freedoms which include the protection of the law. Section 1 is really a preamble and an aid to the interpretation of the provisions in section 9, which secure protection of law.
Section 9 (1) secures the right to a fair hearing within a reasonable time by an independent and impartial court for any person charged with a criminal offence.
The impugned provision in the Jury Act establishes the legal framework for the empanelling of a jury for the trial of a person indicted for a criminal offence.
Sections 27 (a) and (b) (now sections 26 (a) and (b)) deal with peremptory challenges and stand by, and state –
(a) the person charged, or each of the persons charged, may peremptorily and without assigning cause challenge any number of jurors not exceeding 3;
(b) the Crown shall have the same right as on 1st July, 1914 it had in England, to ask that jurors stand by until the panel has been “gone through” or perused.
The existing Jury Act became the Law of Anguilla on the 1st July 1914.
The history of the Crown's right to stand by jurors was reviewed in 2 decided cases: R v. Chandler No. 2 [1964] 2 W.L.R. 689 C.A. PER Lord Parker C.J at 696–697; R v. Mason (1980) 71 (R. App. R. 157 at 622–623). From this history the stand by right of the Crown on the 1st July 1914 can be deduced.
In 1305, upon the statutory abolition of the Crown's unlimited right in England, to peremptorily challenge jurors, the accused had 35 peremptory challenges while the Crown had none.
The trial judge had always had a discretion to refuse to allow a member of the panel to be sworn even though there was no challenge by either party.
There emerged a practice of convenience to allow the Crown to go through the panel of jurors before challenging for cause, primarily to see if an acceptable jury could be sworn without resort to any challenge for cause.
Where a jury was not empanelled during this stand by process, the jurors eliminated by this process were recalled and could be challenged for cause.
This convenient practice became an established procedure, and by 1794 it was regarded as the law of England.
Despite the statutory changes in England regulating the number of peremptory challenges for the accused from 1825 to the present time, the Crown's right to stand by jurors has remained intact as it was in 1794.
Mr. Mussington and Mr. Gumbs contend that the Jury Act's adoption of this stand by process practised in England, constitutes a violation of their fundamental right to a fair trial under sections 1 and 9 of the Anguilla Constitution.
They claim that stand by is a procedure weighted in favour of the Crown, when contrasted with the provision in section 27 (a) (now section 26 (a)) which allows only 3 peremptory challenges to each of them.
They allege that though they are entitled to be judged by their peers, and to determine on equal footing with the Crown, who are their peers, section 27 of the Jury Act effectively gives the Crown the advantage of shaping and moulding at its behest the jury which will try them.
They say that this jury selection procedure is inequitable and unfair. That it strikes at the heart of their right to a fair trial. That by virtue of section 27 (a) and (b) there is unfairness in the proceedings.
Trial by jury is not a guaranteed right under the Constitution of Anguilla.
However, section 29 (2) of the Jury Act (now 28 (2)), in establishing the mode of empanelling the jury to try the applicants provides –
“…but if any jurors so drawn and called do not appear and enter the jurors' box, or in a criminal proceedings being present are asked by the Crown to stand by or are challenged by the person or persons charged as provided in section 27 [now 26], the registrar shall proceed in the manner above mentioned until 9 jurors have been drawn and Approved As Indifferent.” (my emphasis).
These 9 jurors “approved as indifferent” constitute the “independent and impartial court” envisaged by section 9, of the Constitution.
Mr. Mussington and Mr. Gumbs brought their motions before the process for empanelling the 9 “indifferent” jurors had begun.
Section 16 of the Constitution provides –
“If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution Has Been, or Is Being, contravened in relation to him…then without prejudice to any other action with respect to the same matter which is lawfully available; that person may apply to the High Court for redress.” (my emphasis).
In the absence of allegations that a biased jury has been or is being empanelled to try them because of the prosecution's abuse of the Crown's right to stand by jurors, the issue is raised as to whether they have a right to be heard, in light of the conditions established by section 16 of the Constitution for invoking the High Court's jurisdiction.
It is therefore crucial to first determine whether the court has jurisdiction to decide on the merits of these motions.
Locus Standi and Jurisdiction
The learned Attorney General Mr. Scipio in his preliminary submissions, argued that the applicants had no standing to file, nor did the court have any constitutional jurisdiction to entertain these motions concerning the Jury Act.
Mr. Scipio's submissions pivot on the presence of the words has been or is being in section 16 of the Constitution which seemingly exclude applications for prospective or hypothetical infringements of the Anguilla Constitution.
Support for his submissions exists in 2 cases from Antigua in which the court made pronouncements about section 15 (1) of the former Antigua Constitution which provided –
“If any person alleges that any of the provisions of section 2 to 14 (inclusive) of this Constitution Has Been, or Is Being, contravened in relation to him…that person may apply to the High Court for redress.” (my emphasis).
Peterkin, J.A., in his dissenting judgment ( A.G. v. Antigua Times (1973) 20 W.I.R. 573 at 604 para I) opined –
“What needs to be stressed here in my opinion is that s. 15 (1)…does not permit anyone to take up the cudgels on behalf of someone else. Nor is the court to be asked to declare ex-hypothesis. He must allege and show that there has been a contravention ‘in relation to him’ i.e., on the facts and circumstances of his own particular case before he may obtain redress from the court.”
In delivering the judgment of the court in Walter v. Brown (1978) 25 W.I.R. 526, Peterkin, J.A. at page 529 again opined about section 15 (1) of the former Antigua Constitution. He said –
“The subsection does not include the words, ‘ Or Is Likely To Be’ before the word ‘ Contravened’ as in the case with some other constitutions. The question of any breach of...
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