For several years criminal defence barrister Chris White has been successfully pushing for more transparency around the occupations of potential jurors in a series of jury trials in the Auckland District Court.

He’s concerned about the number of jurors whose occupations are listed as ‘Not Stated’. He says, for example, that the jury lists for cases being heard in the Manukau District Court for the week of 18 January 2021 showed that 75 of the 355 names had occupation Not Stated (about 21 per cent), and for the week of 25 January 2021, 64 of the 375 names had occupation Not Stated (about 17 per cent).

He’s also concerned that an amendment that was made as part of the Jury Amendment Rules 2020 in response to Covid-19 has removed the power of judges to require potential jurors to provide their occupations.

Here he discusses the issue in his own words.

How occupations are given

The occupation of a juror comes from information the person provides when they register, or update their details, on the electoral roll. The required information includes full name, date of birth, place of residence, and occupation if any. An application can’t be rejected for not including an occupation (if any), so if the person gives no occupation, it will simply be listed as ‘Not Stated’ when the Electoral Commission gives jury lists to the Ministry of Justice. But the Jury Rules 1990 (the Rules) require that for each person on a jury list the Electoral Commission must provide the full name, date of birth, place of residence, and – until an amendment to the Rules on 31 July 2020 – occupation. That is what gave judges the power, until the amendment, to require a potential juror to provide an occupation when it was listed as Not Stated.

Why a juror’s occupation is relevant

It’s important to know the occupations of potential jurors so the parties can have a fair trial by an independent and impartial court, which the Juries Act 1981 (the Act) tries to achieve by disqualifying and prohibiting certain persons from serving on a jury, and also by giving the parties the right to challenge jurors for want of qualification, or because they are not indifferent between the parties or are not capable of acting effectively because of intellectual disability, or without cause. The occupations of potential jurors can be highly relevant to all of these considerations.

The fundamental reason for the right of the parties to challenge jurors is the right to a fair trial by an independent and impartial court, which is guaranteed by s 25(a) of the New Zealand Bill of Rights Act 1990 and which the Supreme Court described in R v Condon [2007] 1 NZLR 300 at [77] as “an absolute right”.

Most of the occupations prohibited by the Act are jobs that may be perceived as creating a risk of not being independent and impartial, such as police employees, lawyers, members of the judiciary, and members of parliament. Other prohibited persons include parties to prison management contracts or security contracts, and “a security officer within the meaning of s 3(1) of the Corrections Act 2004”. Some government jobs are also prohibited, including employees of “the Public Service” who are employed in the Ministry of Justice or the Department of Corrections or as an officer of the High Court or of a District Court.

The occupation of a potential juror may also be grounds for a judge to direct the person to stand by. Section 27 of the Act gives judges power, on application or of their own motion, to direct any number of jurors to stand by until all available jurors have been called, where it is in the interests of justice to do so. It is reasonable to infer that such directions ought to relate to trial fairness.

The need for specifics

The description of occupation as “Public Servant” (which the writer has seen on jury lists) gives insufficient information to determine if the person is prohibited from serving on a jury by s 8 of the Act. So too are occupations that may indicate other prohibited persons, such as “Security Officer”. The potential for enquiry into many other descriptions of occupation is far reaching.

Power of supervision of jury selection practices

In Gordon-Smith v R [2009] NZSC 20, the Supreme Court recognised jury vetting as a feature of the New Zealand jury trial system that helps to ensure fair trial by an impartial and independent court. The court held that the prosecution should disclose juror vetting information to the defence that gives rise to a real risk that the juror might be prejudiced against the defendant or in favour of the prosecution, which reconciles the interests of accused persons with the legitimate privacy and security concerns of jurors.

More broadly, the inherent powers of a court provide sufficient power to supervise the jury selection process. As the Supreme Court noted in Siemer v S-G [2013] 3 NZLR 441 (which was a case about contempt of court), every court has inherent powers that are incidental or ancillary to its jurisdiction, whether that jurisdiction is inherent or statutory, the scope of which extends to preventing abuse of the court’s processes and protecting the fair trial rights of a defendant.

Legitimate privacy and security concerns

The legitimate privacy and security concerns of registered electors and members of jury lists are well provided for by the Act, which provides for protected particulars, and makes it an offence to identify a juror or former juror, and by the Electoral Act 1993, which provides for non-publication on the electoral roll and unavailability for public inspection. These provisions are important safeguards for people with sensitivity about their personal information, including occupations.

The amendment

On 31 July 2020 the Jury Amendment Rules 2020 came into force in response to Covid-19, and included what was described as some ‘minor and technical amendments’, one of which was the insertion of “(if known)” after “occupation” in the Rules. This amendment effectively removed the power of judges to require potential jurors to give their occupations when they are listed as Not Stated.

How the amendment was presented

In the Jury Amendment Rules 2020, which were approved by Cabinet and enacted by Order in Council, the accompanying explanatory note makes no mention of this particular change. The only mention of it is in the proposal by the Associate Minister of Justice to the Cabinet Legislation Committee (CLC) for submission of the amendment rules to the Executive Council, in which this particular change is mentioned only once, sandwiched in the middle of a series of innocuous sub-paragraphs in a paragraph that itself is sandwiched in the middle of a 20-paragraph document, under the heading “Minor and technical amendments are also being made to the Jury Rules 1990”. To be precise, it is in paragraph 8.3, which reads:

8.3 adding the words, ‘if known’ after ‘occupation’ in the rules governing jury lists, provisional panels and jury records to recognise this information is not always available;

The nature and significance of this particular change was further obscured by it not being mentioned in the passages at the beginning and end of the proposal to the CLC, which effectively begins with these words:

“Jury trials are currently suspended and are due to recommence from 3 August 2020. In order to provide assurance to potential jurors regarding their safety while completing jury service, and for jury trials to operate in compliance with any future physical distancing requirements, amendments are needed to the Jury Rules 1990. The Amendment Rules also progress other minor and technical amendments to the Jury Rules.”

The proposal to the CLC ends with recommendations which “note that the Jury Amendment Rules 2020 make minor changes to enable compliance with any future physical distancing requirements and to address technical issues”. This note is repeated in the Minute of Decision of the CLC on 21 July 2020 (which is attached to the released proposal to the CLC).

The proposal to the CLC records that the Chief Justice, the Chief District Court Judge, and the President of the New Zealand Law Society were consulted about the proposed amendments, and says the Heads of Bench and the President all support the proposed amendments. The writer does not know the extent to which those stakeholders considered the implications of this particular amendment, which has bypassed consideration of its significance by Parliament and evaded the opportunity for submissions about it to the relevant select committee.

Conclusion

The seemingly innocuous insertion of ‘if known’ after ‘occupation’ in the Rules, passed off as being a minor and technical amendment, and obscured in the middle of a proposal dealing with juror safety and physical distancing in response to covid-19, has undermined the guaranteed absolute right to a fair trial by an independent and impartial court.

The remedy is to reinstate the unqualified requirement in the Rules that jury lists include occupations. Doing so would not affect protected particulars for the safety of persons and their families, non-publication in electoral rolls, and prevention of public inspection where appropriate.

From the Law Society

“Under s 35 of the Juries Act 1981 the Minister of Justice/Associate Minister of Justice is required to consult with the President of the Law Society on proposed changes to the Rules (along with the Chief Justice and Chief District Court Judge).

“The Law Society President was consulted in 2019 on confidential minor/technical amendments and again in 2020 on urgent amendments to enable Covid-19 physical distancing requirements for juries. “The Law Society did not specifically comment on the proposed change to rules 4, 6 and 7 to include the words “if known” after occupation.

“On both occasions, the Law Society’s Criminal Law Committee (made up of senior criminal practitioners) reviewed the amendments and didn’t raise any concerns about the qualifier.”