Gardner v DPP: Privy Council rules constitutional motions cannot bypass criminal appeals in closed cases

The Judicial Committee of the Privy Council has dismissed a constitutional challenge brought by a Bermudian murder convict who sought to have his conviction quashed following a later ruling that the jury selection procedure used at his trial was inconsistent with the right to a fair trial. The judgement in Wolda Salamma Gardner v Director of Public Prosecutions [2026] UKPC 17, handed down on 29 April 2026, turns on the proper relationship between constitutional motions and ordinary criminal appeals — and reaffirms that constitutional relief is not available where adequate alternative remedies exist.

Wolda Gardner was convicted of premeditated murder and a firearms offence in Bermuda in April 2015 and sentenced to life imprisonment with a minimum term of 25 years. During jury selection, the prosecution had exercised its power under section 519(2) of the Bermuda Criminal Code to require approximately 15 jurors to stand by — a right subject to no numerical limit — while Gardner was entitled to challenge only three jurors without cause. He did not raise any objection to this imbalance at trial or on appeal, and his subsequent application to the Privy Council for leave to appeal was refused in 2019.

The constitutional landscape shifted in 2020. In Trott v Director of Public Prosecutions, Hargun CJ held that section 519(2) was inconsistent with the fair trial guarantee in section 6 of the Bermuda Constitution, finding that the disparity between prosecution and defence rights created both an appearance of potential bias and a breach of the equality of arms principle. The provision was declared inoperative and Parliament swiftly amended it, though legislation purporting to protect past convictions from being quashed on that ground could not override the Constitution itself.

Gardner filed a constitutional application under section 15 of the Constitution shortly after the Trott ruling, seeking declarations that his trial had been unfair and orders quashing his conviction and directing a retrial. Both the Supreme Court and the Court of Appeal of Bermuda dismissed his application. The Board has now agreed with those decisions.

The dispositive issue was the proviso to section 15(2) of the Constitution, which prohibits the Supreme Court from exercising its original constitutional jurisdiction where adequate means of redress are or have been available under any other law. The Board, in a judgement delivered by Lord Sales, held that the ordinary criminal appeal process provided exactly that. The Court of Appeal retains power under section 17(1) of the Court of Appeal Act 1964 to reopen a closed appeal in exceptional circumstances, and Gardner remained free to invoke that jurisdiction — whether by arguing he meets the test established in Roberts v R [2021] CA (Bda) 8 Crim or by contending that test should be modified.

Drawing on a consistent line of authority including Chokolingo v Attorney General of Trinidad and Tobago [1981], Hinds v Attorney General of Barbados [2002] UKPC 56 and the Board's more recent analysis in Farrington v The King [2025] UKPC 21, the Board emphasised that constitutional motions are not an additional or alternative vehicle for challenging convictions where the appeal route is available. To permit otherwise, the Board noted, would allow collateral attacks on final decisions, undermine procedural coherence, and destabilise the established appellate framework.

The fact that success on a reopened criminal appeal might be difficult — given that Roberts requires exceptional circumstances before a post-conviction ruling on unconstitutionality will disturb a closed case — did not render the alternative remedy inadequate. The same substantive hurdles would apply in any constitutional proceedings. Procedural filters protecting court resources from unarguable cases similarly did not deprive Gardner of adequate redress.

The judgement leaves unresolved the broader questions of whether the Roberts test is correctly formulated and whether Arbour Hill-style reasoning applies with full force in Bermuda. Those questions, the Board made clear, are for the criminal courts.