The act of sequestering entails isolating a jury throughout the course of a trial to prevent them from talking to other people about a court case or from being influenced by social media or the press.

Legislators explored the issue at length as they debated new provisions in the Jury Act, 2022 that is currently before the House of Assembly (HOA). The proposed legislation does not currently make a provision for having a jury sequestered.

Territorial At-Large Representative Neville ‘Sheep’ Smith was particularly concerned about jurors who may potentially comment on online news articles — a term colloquially referred to as blogging. Part of his concern lies in the fact that jurors are able to secretly blog about an ongoing court trial they may be involved in.

“We talk about expanding the jurors’ list, but one of the things that concerned me the most is when we do this, we also open up a room for more people to be a part of this jurors’ list. But there’s something called blogs — the bloggers. I’m wondering how will we control that with the juror list?” Smith said.

He continued: “I think it will be a problem where you have a juror who is a blogger, who’s not using his real name, but sits on a case and is blogging.”

Laws should prevent contact with family

Territorial At-Large Representative Carvin Malone proposed that jurors be sequestered to counter this possibility.

“If you watch enough TV, if you were involved in courts anywhere else, you would find that there’s [sequestering] of jurors in cases where you want to make sure that the jurors are not influenced,” Malone argued.

Malone said the issue of sequestering jurors was an important ingredient that needs to be looked at by legislators but also pointed to the issue of freedom of speech which he said is embedded in the constitution, and should not be taken away as legislators seek to address the problem.

“But when it comes to jury, jury pools, and sequestering, there is a specific condition. I don’t know if it’s allowed in law — take away your WiFi, take away your radio, take away that time off you may have with your particular family because it is critical that you’re not influenced further than you may have been before being chosen as a juror.

Enforcement is a challenge

Health Minister Marlon Penn also weighed in on the issue and questioned how information in certain trials should managed in the public domain.

“The BVI is a small society and our pool of social media connections are very interwoven and intertwined,” Penn said. “We need find a way to ensure that persons are not prejudiced by the fake news, the fake pages that are created on Facebook that spews misinformation, misleading information, [and] the blogs as [Neville Smith] mentioned. I know there are restrictions in place currently… where blogging is restricted for persons who are involved in sex crimes or sex crimes that are before the court.”

Continuing on the subject, Penn also argued that authorities should assess the territory’s capacity to properly police against cyber crime.

“We have the cyber crime act where it prohibits certain behaviours as relates to online activity, slanderous information, slanderous behaviour,” Penn said. “We need to ensure that we have the capacity to enforce those elements to sort of protect persons to ensure that persons have a fair chance to a trial — a fair trial — and to avoid the polluting the minds of the jury with fake information or misleading information while a trial is being conducted.”

Is sequestering practical in the BVI?

And while arguing that sequestering a jury may not be practical in the BVI’s context, Penn said it may well be worth a discussion.

“We also have to be mindful of the age that we’re living in right now. BVI is no more a newspaper society. Everything is done online through social media, through the online means and persons have access to information whether good or bad at their fingertips. And those are some of the challenges that we have to grapple with while we’re putting legislation in place to address some of those issues,” Penn added.