In Alcedo Tyson v The Queen, this Court considered whether section 27(b) of the BVI Jury Act, which gives the Crown the unlimited right to stand-by jurors in criminal proceedings, infringes the equality of arms provision enshrined in section 16 (the fair hearing provision) of the Virgin Islands Constitution Order 2007. At the appellant’s trial the Crown stood-by 21 potential jurors without ascribing any reason. The appellant contended that this was likely to lead the fair-minded observer to find that the selection of an independent and impartial tribunal was biased.
The court held that section 27(b) of the Jury Act is unconstitutional due to the extreme disparity it creates in the jury selection process. The court underscored that the section permits the infringement of the principle of equality of arms by making the defendant’s position extremely weaker than that of the Crown, as a defendant is afforded merely 3 peremptory challenges under the Act. The court found that the Crown’s unlimited right to stand-by jurors was not justifiable in the public interest since section 28 of the Act allows the Crown to challenge a juror for cause if, in the opinion of the presiding judge, it is improper or inadvisable for the juror challenged to be impaneled. Section 28 of the Act therefore safeguards the selection of a competent jury. Consequently, the Crown would not be disadvantaged in the jury selection process by the removal of its unlimited right of stand-by.
In allowing the appeal, the court held that section 27(b) of the Act infringed the appellant’s substantive fundamental right to a fair trial by an impartial court as the perception of bias in the selection process may have resulted in the perception of bias during the trial, and in effect rendered his conviction unsafe.