REPORT
Jury Service
(LRC 107-2013)
© Copyright
Law Reform Commission
FIRST PUBLISHED
April 2013
LAW REFORM COMMISSION’S ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the
law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernise the law.
Since it was established, the Commission has published over 180 documents
(Working Papers, Consultation Papers and Reports) containing proposals for law
reform and these are all available at www.lawreform.ie. Most of these proposals
have led to reforming legislation.
The
Commission’s law reform role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the
Commission following broad consultation and discussion. In accordance with the
1975 Act, it was approved by the Government in December 2007 and placed before
both Houses of the Oireachtas. The Commission also works on specific matters
referred to it by the Attorney General under the 1975 Act.
The
Commission’s Access to Legislation project makes legislation in its
current state (as amended rather than as enacted) more easily accessible to the
public in the form of Revised Acts, as well as providing electronically
searchable indexes of amendments to legislation and important related information. The
Commission provides online access to selected Revised Acts. The indexes include
the Legislation Directory of primary and secondary legislation and the
Classified List of Legislation in Ireland. The Classified List is a separate list of all Acts of the Oireachtas
that remain in force organised under 36 major subject-matter headings; work is
underway to add in-force secondary legislation to this List.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
Mr.
Justice John Quirke
Former Judge of the High Court
Full-time
Commissioner:
Finola
Flanagan, Barrister-at-Law
Part-time
Commissioner:
Marie
Baker, Senior Counsel
Part-time
Commissioner:
Donncha
O’Connell, Lecturer in Law
Part-time
Commissioner:
Thomas O’Malley, Barrister-at-Law
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI), Barrister-at-Law
Legal
Researchers:
Joseph Harrington LLB (Ling Franc) (Dub), BCL
(Oxon), Barrister-at-Law
Colm Kitson BCL (NUI), LLM (QUB), Barrister-at-law
Kate McGovern LLB (Dub), LLM (Edin),
Barrister-at-Law
Roz
O’Connell BA, LLB (NUI), LLM (Dub)
Emma Roche-Cagney BCL
(Clinical) (NUI), LLM (NUI)
Denise Roche BCL (Int), Solicitor
ACCESS
TO LEGISLATION RESEARCH STAFF
Project
Manager:
Alma
Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Assistant
Project Manager:
[Vacant at time of writing]
Legal
Researchers:
Aileen O’Leary BCL (NUI), LLM (NUI), AITI, Solicitor
Morgan Harris LLB (UKC), Barrister-at-Law
Administration Staff
Ciara
Carberry
Executive
Officer:
Deirdre
Bell
Staff
Officer:
Annmarie
Cowley
Clerical Officers:
Ann Browne
Joe Cooke
Liam
Dargan
Legal
Information Manager:
[Vacant
at time of writing]
Principal legal researcherS for this report
Donna Lyons
LLB (Dub), LLM (NYU), Attorney-at-Law
Jane
O’Grady BCL, LLB (NUI), LPC (College of Law)
CONTACT DETAILS
Further
information can be obtained from:
Head of Administration
Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
Mr Brian Battelle, Courts Service
Dr John Bosco Conama, Centre for Deaf Studies,
Trinity College Dublin
Ms Elfrieda Carroll, Sign Language Interpreting
Service
Mr Jerry Carroll, Bar Council of Ireland
Ms Patricia Casey, County Registrar
Ms Marian Chambers Higgins, County Registrar
Dr Mark Coen, School of Law, Trinity College Dublin
Ms Niamh Connolly, NCBI
Ms Evelyn Conroy, Centre for Sign Language Studies
Mr John Coyle, Courts Service
Ms Miriam Delahunt, Barrister-at-Law
Mr Robert Eager, Solicitor
Dr Claire Edwards, University College Cork
Mr Michael Farrell, Senior Solicitor, Free Legal
Advice Services
Mr Remy Farrell, SC
Dr Eilionoir Flynn, NUI Galway
Ms Julianne Gillen, Deafhear
Mr James Hamilton, former Director of Public
Prosecutions
Dr Conor Hanly, School of Law, NUI Galway
Ms Gillian Harold, University College Cork
Ms Liz Harrigan, Northern Ireland Courts and
Tribunals Service
Ms Elizabeth Howlin, Office of the Director of Public
Prosecutions
Dr Niamh Howlin, Queen’s University Belfast
Ms Geraldine Hurley, Courts Service
Mr Matthias Kelly, QC, SC
Mr Des Kenny, National Council for the Blind of
Ireland
Ms Lorraine Leeson, Centre for Deaf Studies, Trinity
College Dublin
Mr Brendan Lennon, DeafHear
Ms Sarah Lennon, Inclusion Ireland
Mr Pat McCarthy, Blind Legal Alliance
Mr Justice Patrick McCarthy, judge of the High Court
Mr Justice Bernard McCloskey, former Chair, Northern
Ireland Law Commission
Mr Tony McGillicuddy, Barrister-at-Law
Mr Dominic McGreahan, Irish Deaf Society
Ms Lianne Meagher Reddy, Legal Research
Intern, Law Reform Commission
Mr Martin Moore, Jurisdictional Redesign Division,
Northern Ireland Department of Justice
Mr Liam Mulholland, Office of the Director of Public
Prosecutions
Mr Fintan Murphy, County Registrar
Ms Úna ní Raifeartaigh, SC
Ms Betty O’Leary, Barrister
Ms Caroline O’Leary, Council of Irish Sign Language
Interpreters
Mr Charles O’Mahony, Law Faculty, NUI Galway
Ms Margaret O’Neill, Courts Service
Mr Michael O’Neill, Garda Síochána Ombudsman
Commission
Mr Damien Owens, Deafhear
Mr Eddie Redmond, Irish Deaf Society
Mr Noel Rubotham, Courts Service
Ms Susan Ryan, County Registrar
Mr Fintan Sheerin, Trinity College Dublin
Mr Richard Shine, Department of Social Protection
Mr Robbie Sinnott, Blind Legal Alliance
Mr James Wallis, Department of Social Protection
Ms Maria Walls, National Federation of Voluntary
Bodies
Full
responsibility for this publication lies, however, with the Commission.
CHAPTER
1
KEY PRINCIPLES of JURY
trial AND JURY SERVICE
B Jury trial in the Constitution and background to the enactment of the Juries
Act 1976
(1) Early
History and Development of Jury Trial
(3) 1965 Reports of the Committee on
Court Practice and Procedure
on
Juries
(4) 1965
Report on Jury Service in England
(5) de
Burca v Attorney General and the Juries Act 1976
C The Essential Components of Jury Service and Key Principles
(2) Representative
Nature of Juries: Random Selection from a Pool of
Potential Jurors
(3) Impartial
and Independent Nature of Juries
(4) Jury
as independent fact-finder, guided by the judge on matters of law
(5) Juror
Ability or Competence
(6) General
Secrecy of Jury Deliberations
CHAPTER
2
jury selection AND
EXTENDING QUALIFICATION FOR JURY
SERVICE
B Jury Selection Process in Ireland
(1) The
register of Dáil electors as the jury source
list
(2) The
Public Services Card as a possible juror source list
(3) The
provisions on jury selection in the Juries Act 1976
C
Extension of
Qualification for Jury Service to Persons Other than Irish
Citizens
(1) England,
Wales and Scotland
(6) Consultation
Paper Recommendations
(7) Submissions
and Final Recommendations
B Challenges Without Cause Shown: Peremptory Challenges
(2) Comparative
Approaches to Challenges Without
Cause
(3) Consultation
Paper Recommendations
(4) Submissions,
further consultation and Final Recommendations
(2) Comparative
Approaches to Challenges for Cause
(3) Consultation
Paper Recommendations
(4) Submissions,
further consultation and Final Recommendations
CHAPTER
4
Capacity to carry out
the functions of a juror
(2) Comparative
and International Law Approaches to Physical Disability
(3) Consultation
Paper Recommendations on Physical Disabilities
(4) Submissions
and Final Recommendations on Physical Disabilities
C Mental Health and Intellectual Capacity
(2) Comparative
Approaches to Mental Health and Intellectual Capacity
(3) Consultation
Paper Recommendations
(4) Submissions
and Final Recommendations
D Reading
and Language Capacity
(1) Current
Law and Practice in Ireland
(2) Comparative
and International Approaches
(3) Consultation
Paper Recommendations
(4) Submissions
and Final Recommendations
CHAPTER
5
INEligibilitY, excusal
and deferral
(1) Current
Position in Ireland 69
(2) Comparative
and International Law Approaches
(3) Consultation
Paper Recommendations
(4) Submissions
and Final Recommendations
C Persons Excusable as of Right
(1) Current
Position in Ireland 75
(3) Consultation
Paper Recommendations
(4) Submissions
and Final Recommendations
(3) Consultation
Paper Recommendations
(4) Submissions
and Final Recommendations
CHAPTER
6
Disqualification FROM
JURY SERVICE
B Current Position in Ireland and Comparative Approaches
(1) Disqualification
for criminal convictions and comparison with spent
convictions regime
(2) Comparative
approaches to disqualification for criminal convictions
C Consultation Paper, submissions received and final recommendations
(1) Summary
of approach in Consultation Paper
(2) Review
of submissions received
D Vetting
Jury Lists to Identify Disqualified Persons
B Current Position in Ireland on Jury Tampering
(1) Criminal
offences concerning jury tampering
(2) Effect
of jury tampering on the integrity of the trial
(3) Use
of non-jury courts in response to jury intimidation
(4) Whether
access to jury lists may indirectly facilitate jury tampering
C Consultation Paper views, submissions and final recommendations
(2) Use
of non-jury courts to address jury tampering
(3) Access
to the jury list, jury anonymity and procedural reforms
CHAPTER 8
juror misconduct:
independent investigations
and
internet searches
B Current Position in Ireland and Comparative Approaches
(1) The
juror’s oath and judge’s directions to the jury
(2) Effect
of publicity on the fairness of jury trial
(3) Prior
juror experience and perception of bias
(4) Juror
misconduct and contempt of court
(5) Comparative
approaches to juror misconduct
C Consultation Paper Recommendations, Submissions and Final
Recommendations
CHAPTER
9
juror compensation and
EXPENSES
B Current Position in Ireland and Comparative Approaches
(1) Juror
compensation in the Juries Act 1976
(2) Comparative
Approaches to Juror Expenses
C Consultation Paper Recommendations, Submissions and Final
Recommendations
CHAPTER
10
LENGTHY TRIALS AND
Juror comprehension 117
B Non-Jury Trials and Special Juries
C Enlarged Juries in Lengthy Trials, Assessors and Provision of
Documentation
(1) Enlarged
juries and reserve jurors
(2) Provision
of documentation to juries
CHAPTER
11
Empirical research
CONCERNING THE JURY PROCESS
C Consultation Paper View, Submissions and Final
Recommendations
CHAPTER
12
Summary of
recommendations
APPENDIx
Draft Juries Bill 2013
TABLE OF LEGISLATION
|
|
|
Pg No. |
|
|
42 USC §§ 12101ff |
US |
56 |
|
|
Children Act 2001 |
No 24/2001 |
Irl |
87 |
|
Civil Liability and Courts Act 2004 |
No 31/2004 |
Irl |
114 |
|
Competition Act 2002 |
No 14/2002 |
Irl |
116 |
|
Contempt of Court Act 1981 |
c 49 |
UK |
55 |
|
Criminal Justice (Amendment) Act 2009 |
No 32/2009 |
Irl |
94 |
|
Criminal Justice (Scotland) Act 1995 |
1995 c 20 |
Scot |
45 |
|
Criminal Justice (Theft and Fraud Offences) Act 2001 |
No 50/2001 |
Irl |
116 |
|
Criminal Justice Act 1988 |
c. 33 |
UK |
52 |
|
Criminal Law Act 1977 |
c. 45 |
UK |
52 |
|
Criminal Procedure Act 2010 |
No 27/2010 |
Irl |
97 |
|
Defence Act 1954 |
No. 18/1954 |
Irl. |
76 |
|
Electoral Act 1993 |
No. 87/1993 |
NZ |
34 |
|
Freedom of Information Act 1997 |
No. 13/1997 |
Irl |
69 |
|
Juries (Ireland) Act 1871 |
34 & 35 Vic. ch. 65 |
Irl |
7 |
|
Juries (Northern Ireland) Order 1996 |
NI 6 |
NI |
32 |
|
Juries Act 1927 |
No. 23/1927 |
Irl |
8 |
|
Juries Act 1927 |
No. 1805/1927 |
S Aus |
69 |
|
Juries Act 1974 |
c 23 |
Eng |
15 |
|
Juries Act 1976 |
No. 4/1976 |
Irl |
8 |
|
Juries Act 1981 |
No. 23/1981 |
NZ |
85 |
|
Juries Act 1995 |
No. 42/1995 |
Qu |
85 |
|
Juries Act 2000 |
No. 53/2000 |
Aus |
84 |
|
Juries Amendment Act 2000 |
No. 2/2000 |
NZ |
85 |
|
Juries Amendment Act 2008 |
2008 No. 40 |
NZ |
48 |
|
Jury Act 1977 |
No. 18/1977 |
NSW |
85 |
|
Jury Amendment Act 2004 |
No. 102/2004 |
NSW |
104 |
|
Jury Amendment Act 2010 |
No. 55/2010 |
NSW |
85 |
|
Jury Ordinance |
Cap. 3 |
HK |
48 |
|
Offences Against the Person Act 1861 |
24 & 25 Vict c.100 |
UK |
11 |
|
Offences Against the State Act 1939 |
No 13/1939 |
Irl |
94 |
|
Rehabilitation Act 1973 |
5 USC 790 |
US |
56 |
|
Social Welfare Consolidation Act 2005 |
No. 26/2005 |
Irl |
23 |
|
Statistics Act 1993 |
No. 21/1993 |
Irl |
38 |
TABLE OF CASES
1.
This Report forms part
of the Commission’s Third Programme of Law Reform 2008-2014[1]
and follows the publication of the Commission’s Consultation Paper on
Jury Service.[2] The Report, like the Consultation Paper,
involves an examination
of the law concerning how individuals are selected for jury service and
related matters, currently set
out in the Juries Act 1976 (as amended).
2.
Since the publication
of the Consultation Paper, the Commission has received submissions from a broad
cross-section of interested parties, and the Commission also held further
consultative meetings during 2011 and 2012. The Commission expresses sincere
thanks to all those who made submissions on this project and who participated
in the consultative meetings. The submissions received, and the material
generated through the meetings, have been considered by the Commission in the
preparation of this Report, which contains the Commission’s final
recommendations on this project. The submissions and consultative meetings
reinforced the view of the Commission that there is a need for wide-ranging
reform of this area of law.
3.
The general scope of this Report remains broadly the same as in the
Consultation Paper, namely, how people are selected for jury service and
related matters. This
includes: the process of jury
selection based on the electoral register and the use of ICT; whether
qualification for jury service should be extended beyond Irish citizenship;
jury challenges; capacity and competence to carry out the functions of a juror;
the categories of persons who are ineligible for jury service; persons who are
excusable as of right from jury service; deferral of jury service;
disqualification from jury service arising from criminal convictions; jury
tampering; juror misconduct, including independent investigations such as
internet searches; juror expenses; lengthy and complex jury trials; and
empirical research on the jury process.
4.
The Commission accepts that, notwithstanding the breadth of the project,
it does not encompass all aspects of the law concerning juries. Without attempting
to set out a complete list, the Commission notes that the project does not
include discussion of: the organisation of jury districts; the respective roles
of the judge and jury; whether juries are sent home or sequestered during
cases; jury deliberations; the
unreasoned verdict; majority jury verdicts; or jury nullification. While each of
these matters is of importance, and may merit separate examination, the
Commission emphasises that they fall outside the scope of this project and Report.
5.
Bearing in mind the scope of the project, the Commission has approached
this Report with a number of overlapping concerns in mind. Firstly, the
Commission must have regard to the importance of the jury in the court system
in Ireland, in particular that Article 38.5 of the Constitution of Ireland
makes jury trial mandatory for most serious criminal offences.[3]
Second, as the Supreme Court emphasised in de Burca v Attorney General,[4] the process for selection of juries must, under the
Constitution, be broadly representative of society. Third, the Commission has
taken into account that, since the decision in the de Burca case, a
number of international human rights instruments have brought new dimensions to
a contemporary analysis of jury trial. Fourth, the Commission has borne in mind
the need to reinforce public confidence in jury deliberations, including the
need to prevent any interference with juries and to prevent any misconduct by
jurors. In Chapter 1, the Commission discusses in more detail the specific
matters and principles that flow from the analysis of constitutional and
international human rights.
6.
As to the actual nature of jury service, the Commission agrees with the
analysis of Walsh J in the de Burca case that jury service is not an
enforceable individual right, but should be more accurately described as a duty
that falls on members of the population of the State. Nonetheless, the
Commission considers that jury service should be valued and supported to the
greatest extent possible by the State, and that any proposed reforms to the
legislative framework should also have regard to the principles set out in
Chapter 1.
7.
The Commission now turns to provide a brief overview of the Report.
8.
In Chapter 1 of the
Report, the Commission examines the key principles of jury trial as they relate
to jury service. The chapter begins by outlining the constitutional provisions
related to the jury system in Ireland, together with a brief overview of the
development of the modern jury. The chapter emphasises the changes to the
legislative provisions on jury selection and jury service in the 20th
century, notably those leading to the enactment of the Juries Act 1976,
which contains the current law on jury selection and jury service. The
Commission then turns to discuss the key principles related to jury service
that are relevant to the subject-matter of this Report, in particular those
derived from the Constitution and international human rights instruments. The
Commission concludes the chapter by setting out a summary of these key
principles that are relevant to the detailed analysis in the succeeding
chapters of the Report.
9.
In Chapter 2, the
Commission examines the jury selection process and also considers whether to
extend qualification for jury service to persons other than Irish citizens. The
Commission first examines the process for jury selection, which is currently
based on the register of Dáil Éireann electors, and explores whether any viable
alternative jury source list might be considered and also discusses the role
played by technology in the process. The Commission then considers whether
qualification for jury service should be extended to persons other than Irish
citizens, particularly in the light of significant increases in recent years in
the percentage of the population of the State who are non-Irish citizens. This
discussion relates to a number of key principles set out in Chapter 1, in
particular whether the current jury pool can continue to be regarded as broadly
representative of the community and related principles as to whether expansion
of the jury pool to non-Irish citizens would affect the fairness of jury
trials.
10. In Chapter 3, the Commission
examines jury challenges, that is, objections made to jurors after they have
been drawn from the panel of potential jurors but before they have been sworn as
jury members. The Juries Act 1976 currently provides for two types of
challenge: challenges without cause shown, sometimes referred to as peremptory
challenges, which involve objections made without putting forward a stated
reason; and challenges for cause shown, that is, objections based on putting
forward a specific reason. The 1976 Act permits each participant in a criminal
or civil trial to make seven challenges without cause and, because of this, in
practice there are very few occasions in which challenges for cause are made.
The Commission examines the two types of challenge by reference to comparable
processes in other jurisdictions and then sets out its final recommendations.
11. In Chapter 4, the Commission
discusses three matters related to the capacity or competence of potential
jurors to carry out their functions as jurors. The Commission first discusses the eligibility
of prospective jurors whose physical capacity may require reasonable
accommodation to serve on juries. The Commission then considers candidate
jurors whose mental ill-health may affect their competence to carry out jury
duty. The Commission then discusses the separate question as to whether a
person’s decision-making capacity may affect his or her competence in this respect.
The Commission also examines the issue of linguistic capacity and
communication. In respect of each of these areas, the Commission notes
that one of the guiding principles set out in Chapter 1 of particular relevance
is that, in order to meet the requirements
of the Constitution concerning a fair trial and comparable provisions in
international human rights instruments, jurors should have certain
minimum standards of personal capacity and competence, which may require
reasonable support and accommodation that do not involve a disproportionate or undue burden.
12. In Chapter 5, the Commission
examines the extent to which specific categories of persons should be regarded
as ineligible for jury service and to what extent other categories of person
may be excused from service. The Commission examines the current categories of
persons who are ineligible for jury service, which comprises the President of
Ireland, a specific list of persons connected with the administration of
justice (including judges, lawyers in practise and members of the Garda
Síochána) as well as members of the Defences Forces. The Commission then
examines the group of persons who may be excused as of right from jury service,
including health care professionals (such as doctors, nurses and veterinary
surgeons), civil servants, ordained clergy and teachers. The Commission
discusses whether this approach to excusal should be replaced with a general
provision on excusal for good cause, which is currently available to any person
who does not come within the category of persons who are ineligible or
excusable as of right. The Commission also discusses proposals for deferral of
jury service to complement the provisions on excusal for good cause.
13. In Chapter 6, the Commission
examines the provisions in the Juries Act 1976 on disqualification of
persons from jury service primarily because they have been convicted of certain
offences. The Commission then discusses the link between disqualification and
the approach taken to expunging criminal records under a spent convictions
regime. The Commission also discusses the related process of vetting jury lists
to identify persons who are disqualified.
14. In Chapter 7, the Commission
examines jury tampering and considers possible reforms aimed at preventing it.
This issue concerns the principle, discussed in Chapter 1, that the right to a
fair trial requires a jury that is independent and unbiased. The Commission
discusses the relevant common law and statutory offences that deal with jury
tampering. The Commission also discusses the extent to which non-jury courts
have been used to address jury tampering. The Commission then considers the
concern expressed that the provisions in the Juries Act 1976 that permit
access to jury lists may, indirectly, facilitate jury tampering.
15. In Chapter 8, the Commission
examines to what extent current law is sufficient to deal with the risk of juror
misconduct, in particular the risk that a juror may engage in independent investigations, such as searching
for information about the case on the internet or visiting a crime scene alone. This
involves the application of two principles discussed in Chapter 1, the right to
a fair trial and that the jury must be unbiased. The Commission discusses
whether the juror’s oath to
arrive at a verdict “according to the evidence” is sufficient to prevent such
misconduct and a related issue, to what extent the publicity surrounding a case
could affect the fairness of a trial.
16. In Chapter 9, the Commission examines
to what extent juror remuneration and expenses could assist in supporting and
encouraging jury service. In Chapter 1, the Commission points out that jury
service is correctly described as a civic duty rather than a right but it is
nonetheless important that jurors should be encouraged to perform this civic
duty and that any disadvantage should be minimised as far as possible. In this
Chapter, the Commission examines the current position on remuneration before
setting out its final
recommendations on this aspect of jury service.
17. In Chapter 10, the Commission
examines the challenges posed for jurors in complex or lengthy trials where
they are presented with information such as DNA evidence in a murder trial or
financial information in a fraud trial. Allied to the complexity of the
information presented is that such trials may also extend to months rather than
days or weeks. The Commission examines whether non-jury trials or
special juries should be used
in cases of complexity or in lengthy trials and concludes that before
considering these and thereby creating another exception to the general right
in Article 38.5 of the Constitution to jury trial, other procedural solutions
should first be considered. The Commission therefore discusses three procedural
alternatives, namely, the selection of more than 12 jurors, the use of
assessors and the provision of specific information in written form to assist
juror comprehension. In this respect the Commission addresses, in particular,
the principle discussed in Chapter 1 that in order to ensure the right to a
fair trial, jurors should have certain minimum standards of personal
capacity and competence, which may require reasonable support and accommodation.
18. In Chapter 11, the Commission
examines whether provision should be made for empirical research into the
functioning of the jury system and, if so, to what extent. The Commission
examines the current position on the secrecy of jury deliberations in Ireland,
which is one of the key principles discussed in Chapter 1. The Commission
discusses comparative approaches to this question, before setting out its final
recommendations concerning the benefits and scope of empirical research.
19. Chapter 12 contains a summary of
recommendations made by the Commission.
20. The Appendix contains a draft
Juries Bill to implement the recommendations in the Report and to
consolidate the other provisions currently contained in the Juries Act 1976.
1.01
In this Chapter the
Commission examines the essential components of jury trial that are relevant to
the subject-matter of this Report. In Part B, the Commission outlines the
constitutional provisions related to the jury system in Ireland, together with
a brief overview of the development of the modern jury.[5]
The Commission focuses on legislative changes to the law on jury selection and
jury service during the 20th century, leading to the enactment of
the Juries Act 1976, which contains the current law on jury selection
and jury service. The Commission then turns in Part C to discuss the key
principles related to jury service, in particular those derived from the
Constitution and international human rights instruments. The Commission
concludes the chapter by setting out a summary of these key principles.
1.02
Court hearings involving a jury, whose members are drawn from the
general community, are a distinctive feature of common law legal systems, of
which Ireland is one. Indeed, Article 38.5 of the Constitution of Ireland contains a general mandatory requirement that, subject to specific
exceptions,[6] “no person
shall be tried on any criminal charge without a jury.” This means that,
in general, major criminal cases tried on indictment, such as murder and
robbery, must involve a jury trial. Thus, in Ireland’s court system, the jury’s
role in criminal cases is of major importance because its members have the
power to decide that a person is either guilty or not guilty of serious crimes.
At one time, juries in Ireland were also used in many civil cases, including in
personal injuries actions,[7] but they are now used in very few civil
cases, the most common being High Court defamation claims.[8]
Because of the central role juries play in the administration of justice,
notably in criminal trials, the basis on which persons are qualified and
eligible for jury service, and the process for the selection of juries are,
equally, of great importance to ensure that there is continued public
confidence in the jury system.[9]
1.03
The general right to a
jury trial in Article 38.5 of the Constitution forms part of the more general
right in Article 38.1 that “[n]o person shall be tried on any criminal charge
save in due course of law.” The phrase “due course of law” echoes the “due
process” clause in the US federal Constitution, and Kelly has noted that:
“Article 38.1 has been interpreted to embrace a range of both procedural
and substantive rights, the content of which has been influenced by common law
tradition, the European Convention on Human Rights and the case law of the
European Court of Human Rights, United States constitutional practice,
international agreements, and, not least, the views of the Irish judiciary as
to what constitutes minimum standards of procedural and substantive justice in
criminal trials.”[10]
1.04
In this respect,
therefore, the current constitutional position afforded to juries can only be
fully understood against the historical development of jury trial, to which the
Commission now turns.
1.05
The exact origins of
the jury remain unclear, but the concept of 12 persons being nominated to
determine whether specific persons had committed a crime has been traced to
about the year 1000 AD,[11] and it
therefore appears to have predated the arrival of the common law in England.[12]
The jury was initially referred to as the “jurata”, which translates as “a
group of persons who have taken an oath or are sworn,” and the jurors its
“juratores.” This was because, in the institution’s infancy, 12 jurors were
primarily empanelled from the neighbourhood as witnesses, and occasionally as
expert witnesses. Therefore, jurors provided factual evidence and information
about local customs, and also testified as to their own knowledge of the
circumstances surrounding the crime and any knowledge held about the accused.[13]
The development of jury trial in Ireland was very similar to its development in
England and Wales. Therefore, the English common law, which included the right
to jury trial, gradually replaced the system of Brehon law in existence in
Ireland, so that by the 17th Century, the common law tradition had a
firm hold throughout the island.[14]
1.06
Until the middle of the
17th century, juries who ignored the judge’s directions or who acquitted
the accused in spite of convincing evidence pointing to his or her guilt were
at risk of harsh punishments. Bushell’s Case put an end to this
practice in 1670. There, the jury acquitted two defendants in the face of
overwhelming evidence and were fined as a result. The foreman of the jury,
William Bushell, refused to pay, and was imprisoned. Vaughan CJ found that
juries would serve no meaningful purpose if they were obliged to follow the
judge’s interpretation of the facts, and this view then gave rise to the common
law principle that the jury’s decision on questions of fact was unassailable.[15]
Bushell’s case thus established the modern concept of the jury as the
independent fact-finder, subject to directions from the judge on questions of
law.
1.07
The 18th and
19th centuries in Ireland, complete with their many experiences of
violence and sectarian conflict, gave rise to unique challenges for the
institution of the jury. This was a time of intimidation of both jurors and
witnesses, widespread antipathy towards the Crown and close community ties
between jurors and accused, which combined to create serious difficulties in
securing convictions. As a consequence, the authorities employed various tactics
to secure the convictions of criminals.[16] Jury trial
was suspended for a host of offences, and where the use of juries was
unavoidable, the Crown exercised its right to “stand by” jurors,[17]
transferred cases to alternate venues, employed “special jurors”,[18]
and reduced charges in an effort to persuade accused individuals to plead
guilty. The use of the prosecution’s right to ask potential jurors to stand by
was particularly controversial and frequently led to accusations of jury
packing. However, the controversy surrounding jury packing was reduced by the
enactment of the Juries (Ireland) Act 1871 which
implemented a system of alphabetical rotation and thereby limited the
discretion of the sheriff in empanelling the jury.[19]
1.08
The defence was also in
a position to influence the composition of the jury through the frequent use of
the right to peremptorily challenge up to 20 jurors in felony cases, and up to
6 in misdemeanour cases, with the result that, despite the strenuous efforts of
the Crown, conviction rates remained low. Therefore, during periods of intense
unrest, jury trial was suspended entirely and a number of special courts were
established in their place.[20] Against this background, it may not be
surprising that the right of an accused to trial with a jury in serious
criminal cases is now enshrined in Article 38.5 of the Constitution of Ireland.
1.09
In Ireland, the Juries
Act 1927, which consolidated into a single Act
the pre-1922 legislation on juries, including the Juries (Ireland) Act 1871,
set out the key provisions on jury selection and jury service until it was
replaced by the Juries Act 1976, discussed
below. Eligibility for jury service under the Juries Act 1927
largely followed the model in the Juries (Ireland) Act 1871, and
was thus decided on the basis of occupation of land set at a specified rateable value. The 1927 Act
provided that Irish citizens aged 21 or upwards and under 65 who were on the
electoral register, and who possessed the relevant rating qualification, were
eligible for jury service.
1.10
The 1927 Act also provided that women should not be liable for jury
service, even if they met the property-owning requirement (which was, at that
time, unlikely) unless they themselves made an application to serve. From the
late 19th century, while the women’s movement had often linked the
argument for the right to vote with extension of jury service for women,
universal suffrage was conceded in many States before universal jury service for
women. Many Parliaments in common law states rejected the idea that women
should sit on juries. Two main arguments were made in this respect: firstly,
that women (especially married women) should not be required to serve on juries
where this would conflict with their duties at home;[21]
and, second, that the features of certain criminal trials (notably those
involving sexual offences) would be too onerous for women of a certain
(delicate) temperament.[22]
1.11
It was not until the arguments of the “first wave” of the women’s
movement (in Ireland, groups such as the Irish Housewives Association)[23] were gradually accepted in the second half of the 20th
century that legislation was enacted in a majority of common law states
providing for equality for women in terms of jury selection processes. In
Ireland, as discussed below, this argument had been accepted in 1965 in Ireland
by the Committee on Court Practice and Procedure, and when the Oireachtas
ultimately enacted the Juries Act 1976 in response to the Supreme Court
decision in de Burca v Attorney General,[24]
discussed below, this also became the position in the State.
1.12
By the early 1960s, there were growing concerns in a number of
countries, including Ireland, about the limited pool from which juries were
being drawn. This coincided with the emergence of the “first wave” of the
women’s movement. Against this emerging background of calls for sexual equality
across a range of areas (which included calls for equal pay and for freedom and
choice in sexual and reproductive health), in 1965 the Committee on Court
Practice and Procedure[25]
published two Reports concerning juries, one on jury service generally and the
other on jury challenges. The Commission discusses the recommendations made in
these Reports in detail in the succeeding chapters of this Consultation Paper,
but provides a brief overview here.
1.13
In its Report on Jury Service[26] the
Committee recommended fundamental reform of the selection system in the Juries
Act 1927. In connection with the property qualification, the Committee
noted that there had been a “great social revolution” since the enactment of
the 1871 Act, notably “universal adult suffrage and universal education.”[27]
The Committee also accepted that the property qualification had the effect
that, as was the position in England at that time (before the enactment of the
English Juries Act 1974), the jury was not representative of the
country as a whole but tended to be “predominantly male, middle-aged,
middle-minded and middle class”.[28]
The Committee therefore concluded that the property qualification was “no
longer appropriate in present-day [1965] circumstances”[29]
and that the electoral register should be the basis for jury selection in
future, largely because it is “revised annually and can be readily used for the
purpose.”[30]
1.14
As to the effective exclusion of women from jury service under the 1927
Act, the Committee, by a 9-3 majority, recommended – in response in particular
to submissions from women’s representative groups[31]
– that women should no longer be exempt from jury service. The majority
“accept[ed] the view that women should have equal rights and duties with men in
this matter [and that women’s] presence on juries will result in a more
balanced view being taken of cases in general.”[32]
1.15
The Committee also recommended that the exemptions in the 1927 Act for civil
servants, local government employees, and other specific categories of
employees were no longer justifiable.[33] In taking
this approach, the Committee took into account that, in place of exemptions, a
discretion to exclude in a limited group of cases would ensure that civil and
public servants urgently needed by Government departments or State bodies would
not be required to serve.
1.16
The Committee’s second 1965 Report on juries was a brief Report on Jury
Challenges.[34] In this Report, the Committee concluded that the
then-existing arrangements in the Juries Act 1927 for challenging
without cause had operated satisfactorily. In view, however, of the Committee’s
recommendations concerning the extension of jury service in its Report on
Jury Service, the Committee recommended that the system should be extended
and that joint challenges be abolished. The Commission discusses this in detail
in Chapter 3, below.
1.17
At the same time as the
Committee on Court Practice and Procedure was examining jury service in
Ireland, a virtually identical exercise was being carried out in England,
culminating in the 1965 Report of the Departmental Committee on Jury Service.[35] The impetus for the establishment of the Departmental Committee was the
growing concern that, as was also the case at that time under English law,
women were effectively excluded from jury service because of the property
qualifications applicable. Indeed, private members Bills had been proposed in
the UK Parliament in 1962 to provide for jury service by women, which reflected
the growing number of common law countries which had already legislated, or
were in the process of legislating for, this.[36] The Departmental Committee had been established in November 1962, and
it is worth noting that the Committee on Court Practice and Procedure, in the
course of preparing its Second Interim Report on Jury Service, had been
in contact with members of the English Departmental Committee.[37] The 1965 Report of the Departmental Committee made extensive recommendations
for reform of the law, and these were ultimately implemented in the English Juries
Act 1974.
1.18
The recommendations made in 1965 by the Committee on Court Practice and
Procedure had not been acted on when, in 1971, two members of the Irish Women’s
Liberation Movement (IWLM),[38] Máirín de
Burca and Mary Anderson, were arrested outside Dáil Éireann[39]
and charged with obstructing a police officer in the due execution of his duty,
contrary to section 38 of the Offences Against the Person Act 1861.[40] Having pleaded not guilty, they both elected to have the
charges tried with a jury and were sent forward for trial in the Circuit
Criminal Court.
1.19
While awaiting trial, they began proceedings, de Burca v Attorney
General,[41]
challenging the constitutionality of the provisions in the Juries Act 1927 which
restricted jury service to certain categories of property owners and which, in
effect, excluded women. The effect of the case was that any work on the
implementation of the recommendations made in 1965 by the Committee on Court
Practice and Procedure was put on hold, at least publicly and pending the
outcome.
1.20
Just before the case was heard in the High Court, the Report of the
Commission on the Status of Women[42] was
published, which recommended that a great deal of legislation be enacted
concerning sexual equality, for example in the area of employment equality, in
particular in the light of Ireland’s membership of the European Economic
Community (now the European Union), which began in January 1973. The Report
also reiterated the recommendation made in 1965 by the Committee on Court
Practice and Procedure that women should be qualified and liable for jury
service on the same terms as men.[43]
1.21
In de Burca, in the High Court Pringle J dismissed the
plaintiffs’ case, but, on appeal, the Supreme Court held that the restrictions
on jury service in the 1927 Act were in breach of the Constitution, and the
Court therefore declared the 1927 Act unconstitutional. Before the Supreme
Court decision, in July 1975 the Government had already introduced into the
Oireachtas[44] the Juries
Bill 1975, which was largely based on the recommendations in the 1965
Reports and modelled on the English Juries Act 1974. Following the
Supreme Court decision in December 1975, the 1975 Bill was quickly enacted by
the Oireachtas, with minor changes, as the Juries Act 1976.
1.22
In was noted during the Oireachtas debates on the 1976 Act that the
rating restriction in the 1927 Act had “excluded all men, however well
educated, who did not happen to have landed property; and in practice women
hardly ever served on juries.”[45]
In 1963, the last year for which figures were readily available before the
enactment of the Juries Act 1976, only 84,000 persons were eligible for
jury service.[46]
In the ten years up to 1974 only nine women were recorded as having applied for
jury service and of these only five were called for service and only three
actually undertook jury service.[47]
1.23
The Juries Act 1976 implemented
most of the recommendations made in 1965 by the Committee on Court Practice and
Procedure, but its enactment was, of course, accelerated by the decision of the
Supreme Court in de Burca v Attorney General. In terms of detailed content, it is also clear that (with some
exceptions) the English Juries Act 1974 was the legislative model used
for the 1976 Act.
1.24
The key eligibility criterion for jury service currently set out in
section 6 of the Juries Act 1976 is that a person must be a citizen of
Ireland aged at least 18, who has registered his or her name on the electoral
roll for general elections. In addition, the 1976 Act contains two grounds on
which categories of persons must be excluded from consideration for jury
service. Firstly, section 7 (and Schedule 1, Part 1) of the 1976 Act contains a
list of ineligible persons, including the President of Ireland,
practising solicitors and barristers and members of the Defence Forces. Second,
section 8 of the 1976 Act states that certain convicted persons are disqualified
from jury service. Section 9 (and Schedule 1, Part 2) of the 1976 Act then
contains a list of persons (including members of either House of the
Oireachtas, religious ministers, doctors, nurses, university lecturers and students)
who may be excused from jury service automatically (as of right).
Section 9 of the 1976 Act contains a general discretion to excuse a person from
jury service.
1.25
Sections 20 and 21 of the 1976 Act deal with the process by which
qualified potential jurors can be rejected by the parties involved in a court
case, in a criminal trial the prosecution and the defence. This is referred to
as challenging, and section 20 of the 1976 Act allows up to 7 challenges for
each party “without cause,” that is, without having to give any reason, often
referred to as “peremptory challenges.” Section 21 allows an unlimited number
of challenges “for cause”, that is, by showing that the potential juror is
unsuitable because, for example, he or she knows one of the parties and may, as
a result, be biased or perceived as being biased. Section 29 of the 1976 Act
requires an employer to pay the salary of any employee during jury service.
1.26
While, in general terms, the 1976 Act provided for jury selection from
the electoral roll for general elections, section 6 of the 1976 Act, as
enacted, had limited this to persons under the age of 70. In addition, Schedule
1 to the 1976 Act had included in the category of ineligible persons “[a]
person who because of insufficient capacity to read, deafness or other
permanent infirmity is unfit to serve on a jury.” The ageist and offensive
nature of these two provisions have, since then, been dealt with by amendments
made to the 1976 Act in the Civil Law (Miscellaneous Provisions) Act 2008.[48] These amendments by the Oireachtas recognised that the
1976 Act, as originally enacted, had clearly fallen behind the essential
standards of representativeness which are to be expected in the early 21st
century.
1.27
The Commission now turns to examine in detail
the essential components of jury service in Ireland, in particular those
related directly to this Report. The Commission examines these by reference to
the analysis in the de Burca case, as well as more recent decisions and
relevant international human rights instruments. These key elements are:
the nature of jury service, the representative nature of juries, based on
random selection from a pool of potential jurors; juries as impartial and
independent; the jury as independent fact-finder, guided by the judge on
matters of law; the requirement of juror ability or competence; and the extent
of the secrecy of jury deliberations.
1.28
In the de Burca case, Walsh J described jury service as follows:[49]
“It surely follows from the constitutional
obligation to have jury trial that jury service is an obligation that must fall
upon such members of the population as the State, by its laws validly enacted
under the Constitution, designates as being the persons liable for such duty or
qualified for such duty.”
1.29
The Commission agrees with the analysis of Walsh J that jury service is
not correctly described as involving an enforceable individual right; it can
more accurately be described as involving a duty that falls on members of the
population of the State. Nonetheless, the Commission considers that jury
service should be valued and supported to the greatest extent possible by the
State, and that any reforms of the current legislative framework should,
equally, have regard to this.
1.30
Representativeness
encompasses the concepts of random selection and independence. This means that
juries are intended to be composed of a representative cross-section of the
community, which is ensured through the process of random selection from a pool
of potential jurors, and which thereby promotes the independent nature of the
jury, and society’s participation in the institution. In de Burca v Attorney
General[50] Henchy
J described the jury as a group of people:
“who, chosen at random from a reasonably diverse panel of jurors from
the community, will produce a verdict of guilty or not guilty free from the
risks inherent in a trial conducted by a judge or judges only, and which will
therefore carry with it the assurance of both correctness and public
acceptability that may be accepted from the group verdict of such a
representative cross-section of the community.”
1.31
Referring to the
effective exclusion of women from jury service, Henchy J stated in de Burca
that:[51]
“Whatever may have been the position at common law or under statute up
to recent times, it is incompatible with the necessary diffusion of rights and
duties in a modern democratic society that important public decisions such as
voting, or jury verdicts involving life or liberty, should be made by male
citizens only. What is missing in decisions so made is not easy to define; but
reason and experience show that such decisions are not calculated to lead to a
sense of general acceptability, or to carry an acceptable degree of
representativeness, or to have the necessary stamp of responsibility and
involvement on the part of the community as a whole.”
1.32
Griffin J noted in de
Burca that an accused is not entitled to: [52]
“a jury which is tailored to the circumstances of the particular case,
whether relating to the sex or other condition of the defendant or to the
nature of the charges to be tried, provided that the jury be indiscriminately
drawn from those eligible in the community for jury service... It might happen
that a jury drawn by lot would include no women or, indeed, no men; but that
would not invalidate the jury.”
1.33
When the Northern
Ireland Court Service carried out a public consultation between 2008 and 2010
on widening the jury pool under the Juries (Northern Ireland) Order 2006[53]
it noted that the “vast majority of respondents agreed with the overall
objective of widening the jury pool to ensure that it is fully representative
of society.”[54]
1.34
A related issue of
representativeness in the State concerns Article 8 of the Constitution. Article
8.1 provides that the Irish language as the national language is the first
official language of the State and Article 8.2 provides that the English
language is recognised as a second official language. (The Irish language
version of Article 8.2 provides: “[g]lactar leis an Sacs-Bhéarla mar theanga
oifigiúil eile.”) In MacCarthaigh v Éire,[55]
while the Supreme Court reiterated the importance of the representative nature
of the jury, it rejected the argument that, in conducting a trial through the
Irish language, the right to jury trial included the right to a jury composed
of individuals with an adequate knowledge of the Irish language.
1.35
The issue of racial
representativeness arose in the English case R v Smith.[56]
The defendant, a black man, had been charged with assaulting a white man
outside a night club. He was tried by, and convicted by, an all-white jury. He
argued that the selection procedures under the English Juries Act 1974 were
incompatible with the right to a fair trial in Article 6 of the European
Convention on Human Rights (ECHR). The English Court of Appeal dismissed his
appeal against conviction. The Court referred to the case law of the European
Court of Human Rights (ECtHR), including Sander v United Kingdom,[57]
in which a juror had made a racist remark about the defendant, which was
reported to the trial judge, who allowed the trial to proceed. The ECtHR held
that, in these circumstances, the defendant’s right to a fair trial under
Article 6 of the ECHR had been breached. In R v Smith,
the Court of Appeal noted that the legitimacy of the jury system or the
procedure by which juries are selected had not been questioned in Sander
by the ECtHR. The Court
also added that “[n]othing arose in the present case to suggest that the
members of the jury were not performing their duty, in accordance with their
oath, to try the case impartially.” The Court rejected the argument that a fair-minded and informed
observer would regard it as unfair that the defendant was tried by a randomly selected
all-white jury or that the
trial could only be fair if members of the defendant’s race were present on the
jury. The Court therefore concluded that the defendant’s trial was not
in breach of Article 6 of the ECHR. The Court added:[58]
“It was not a case where a consideration of the evidence required
knowledge of the traditions or social circumstances of a particular racial
group. The situation was an all too common one, violence late at night outside
a club, and a randomly selected jury was entirely capable of trying the issues
fairly and impartially. Public confidence is not impaired by the composition of
this jury.”
1.36
Thus, representativeness means that the panel
of potential jurors from which a jury is selected should reflect the
composition of society, but it does not mean that the resulting jury actually
chosen for a specific case will do so. In general terms, a jury of 12 men or of
12 women, or an all-white jury, would be permissible, provided the jury panel
from which they were selected was representative. This general approach is
subject to the requirement of impartiality to which the Commission now turns.
1.37
The Victorian Law
Reform Commission has stated that maximising the representativeness of juries
should “promote impartiality by reflecting a greater cross-section of community
experience (and prejudice) so that no one view dominates.”[59]
Nonetheless, jury representativeness and impartiality are distinct concepts.[60]
In this respect, jury partiality or bias can be divided into two main
categories: interest prejudice (having a pecuniary or personal interest in
outcome of case) and specific prejudice (having attitudes about specific issues
which prevent the juror from rendering a verdict with an impartial mind).
1.38
In The People
(Attorney General) v Singer,[61]
a complex fraud trial arising from an alleged “Ponzi” or pyramid investment
scheme, it emerged that the foreman of the jury had been an investor in the
defendant’s scheme. The Court of Criminal Appeal therefore set the conviction
aside for this reason (among others):
“The whole purpose of jury-trial is third-party judgment, judgment by
indifferent persons... The victim is not to be thought of as indifferent, and
his presence on the jury manifestly offends against the concept of fair trial –
the essence of which is third party judgment – however honestly he should
strive to discharge his duty as juror.”[62]
1.39
The question of bias was
also considered in People (DPP) v Tobin,[63]
a trial for rape and sexual assault, during which it came to light that one
juror had experienced sexual abuse in the past. On receiving assurances
regarding the impartiality of the juror from the foreman of the jury, the trial
judge elected to take no further action.[64]
The conviction was set aside by the Court of Criminal Appeal, which noted:
“a reasonable and fair-minded observer would consider that there was a
danger, in the sense of a possibility, that the juror might have been
unconsciously influenced by his or her personal experience and, for that
reason, the appellant might not receive a fair trial. Moreover, even jurors
without similar experience of sexual abuse might well be influenced by sympathy
for a fellow juror who had suffered, at the hands of another, the type of abuse
with which the accused was charged.”[65]
1.40
The test of reasonable apprehension of bias set out in the Tobin case
is also found in the case law of the ECtHR on the right to a fair trial by an
impartial tribunal in Article 6 of the ECHR. In Sander v United Kingdom[66] a juror made a racist remark about the
defendant, which was reported to the judge, but he did not discharge the jury
because they signed a note disowning any racist remarks made. The jury
convicted the defendant. The ECtHR accepted that the personal impartiality
of jurors must be presumed until there is proof to the contrary, as is the case
for judges.[67] Nonetheless,
the ECtHR concluded that the
defendant’s Article 6 rights had been violated because an objective observer
might have doubts about the impartiality of the jury in that specific case. The
Court found that the nature of the remarks was such that a direction by the
trial judge to ignore them was not sufficient to undo the damage caused.
1.41
Jury impartiality,
however, does not require that individual jurors should rid their minds of all
opinions, beliefs, and other life experiences when undertaking their role.
Thus, juror impartiality and independence involves judgment by persons who have
no direct involvement in the trial or who, from an objective standpoint of the
reasonable observer, would not be regarded as partial or biased; but the
concept of impartiality also assumes judgment by persons of independence, with
opinions and beliefs and other experience of the realities of living in today’s
society.[68]
1.42
In O’Callaghan v
Attorney General,[69] the Supreme Court stated:
“The purpose of trial by jury is to provide that a person shall get a
fair trial, in due course of law and be tried by a reasonable cross section of
people acting under the guidance of the judge, bound by his directions on law,
but free to make their findings as to the facts. The essential feature of a
jury trial is to interpose between the accused and the prosecution people who
will bring their experience and common sense to bear on resolving the issue of
guilt or innocence of the accused.”
1.43
Thus, the judge ensures
that proper procedures are observed, determines matters of law such as the
admissibility of evidence and directs the jury on the legal principles and
rules they are to observe. Nonetheless, reflecting the view taken in the 17th
Century in Bushell’s Case, the jury are the independent arbiters of all
disputed issues of fact and, in particular, the issue of guilt or innocence.
Thus, while a judge might very well consider that, on the evidence presented in
a specific case and the law to be applied by the jury, the accused should be
convicted, nonetheless it would not be appropriate for the judge to direct the
jury to bring in a guilty verdict. In The People (DPP) v Davis,[70]
the Supreme Court thus held that a judicial direction requiring the jury
to return a verdict of murder was an unconstitutional usurpation of the jury’s
function.
1.44
In the de Burca[71] case Walsh J stated that the
Constitution “does not preclude
the Oireachtas from enacting that prospective jurors should have certain
minimum standards of ability or personal competence without which jury trial
might fail to serve as an essential part of the administration of the criminal
law.” The Law Reform
Commission of New Zealand has stated that one of the four goals of jury
selection is competence: “individual jurors should be competent in the sense
that they are mentally and physically capable of acting as jurors in the
trial.”[72]
1.45
Competence also
encompasses the effectiveness of the jury as a fact-finding tribunal.[73]
The New South Wales Law Reform Commission has argued that a jury system that is
“broadly representative” has the benefit of producing more competent juries
“because of the diversity of expertise, perspectives and experience of life
that is imported into the system.”[74]
1.46
The Law Reform
Commission of Western Australia commented that “[i]t is perhaps self-evident
that individual jurors should be competent in the sense that they are mentally
and physically capable of acting as jurors in the trial.’”[75]
Article 13 of the 2006 UN Convention on the Rights of Persons with Disabilities
(“UNCRPD”), which, at the time of writing, Ireland has signed but not ratified,
provides that States Parties are required to ensure effective access to justice
for persons with disabilities on an equal basis with others. The UNCRPD defines
reasonable accommodation as: “necessary and appropriate modification and
adjustments not imposing a disproportionate or undue burden, where needed in a
particular case, to ensure to persons with disabilities the enjoyment or
exercise on an equal basis with others of all human rights and fundamental
freedoms.”[76]
While the State is not at present bound by the provisions of the 2006 UNCRPD,
it has indicated that it will ratify the Convention in the near future, and the
Commission therefore considers that it should have regard to the Convention,
including the principle of “reasonable accommodation.” The Commission agrees
with the Law Reform Commission of New South Wales that: “fairness of the trial
takes precedence over the potential rights of a prospective juror. However,
prospective jurors should not be lightly excluded from an important civic duty.
It is important to ask whether the administration of justice is adversely
affected by denying the contribution that some in the community would be
willing and able to make, and whether thereby the representativeness of the
jury is compromised.”[77]
1.47
In summary, the
Oireachtas is entitled to stipulate that jurors must have a minimum level of
ability and personal competence in order to ensure the effectiveness of the
jury as a fact-finding tribunal and, therefore, the right to a fair trial.
Juror competence is reinforced by having a broadly representative pool from
which to select jurors, and such competence may require the provision of
reasonable accommodation, as set out in the 2006 UNCRPD.[78]
1.48
In de Burca v
Attorney General,[79] Walsh J
commented that “the jury should be free to consider their verdict alone without
the intervention or presence of the judge or any other person during their
deliberations. I think it also imports an element of secrecy.” This was
emphasised again by the Supreme Court in O’Callaghan v Ireland,[80]
in which O’Flaherty J stated that the “deliberations of a jury should always be
regarded as completely confidential” and therefore that the “deliberations of a
jury should not be published after a trial.”
1.49
The principle of jury
secrecy thus relates to ensuring that that there is no interference with the
deliberations of the jury, reinforcing the independence of the jury.[81]
It does not preclude, for example, members of the jury from disclosing
inappropriate behaviour in the jury room, such as the racist comments referred
to in Sander v United Kingdom.[82]
1.50
In conclusion, the
Commission considers that the following key principles arise from the
discussion in this Chapter.
1)
Jury service is more
accurately described as a duty which falls upon members of the population of
the State rather than as a right of an individual in the State.
2)
Juries should be
selected from a pool or panel broadly representative of the community, having
regard to the provisions on criminal trials in Article 38.1 and 38.5 of the
Constitution of Ireland.
3)
Jury representativeness
refers not to the actual jury selected but rather to the pool or panel of
persons from which juries are selected.
4)
Jury legislation may
validly exclude certain persons from the jury pool or panel, provided this does
not infringe specific constitutional provisions.
5)
Historical restrictions
on, or effective exclusions of, groups from the jury pool or panel do not
necessarily meet current constitutional requirements for representative juries.
6)
Restricting the jury
pool to property owners, and the effective exclusion of women from the jury
pool, is not constitutionally permissible, even though it was historically a
feature of juries legislation.
7)
While the panels need
not, as a constitutional requirement, match exactly the community at any given
time, they should be reviewed to determine whether the general jury pool from
which persons are being selected for jury service no longer reflect the
community as a whole.
8)
Jurors should be both
impartial and independent (and appear to be so, using an objective test) in
carrying out their functions, in accordance with the requirements of the
Constitution and comparable international human rights instruments concerning a
fair trial.
9)
The jury is as independent fact-finder, bound by the judge’s directions on matters of
law, but free to make their findings as to the facts in a case, including on
the guilt or innocence of a person in a criminal trial.
10) In
order to meet the requirements
of the Constitution concerning a fair trial and comparable provisions in
international human rights instruments, jurors should have certain
minimum standards of personal capacity and competence, which may require
reasonable support and accommodation that do not involve a disproportionate or undue burden.
11) The jury should be free to consider
their verdict in secrecy in the sense that they do so without the intervention
or presence of the judge or any other person during their deliberations; but
this does not preclude certain disclosures, for example, inappropriate
behaviour in the jury room.
1.51
The Commission
considers that these principles are of relevance to the detailed discussion of
the specific matters addressed in the remaining chapters of this Report.
2.01
In this Chapter the
Commission examines the jury selection process and also considers whether to
extend qualification for jury service to persons other than Irish citizens. In
Part B, the Commission examines the process for jury selection, which is
currently based on the register of Dáil Éireann electors, and explores whether
any viable alternative jury source list might be considered and also discusses
the role played by technology in the process. In Part C, the Commission
considers whether qualification for jury service should be extended to persons
other than Irish citizens, particularly in the light of significant increases
in recent years in the percentage of the population of the State who are
non-Irish citizens. This discussion relates to a number of key principles set
out in Chapter 1, in particular whether the current jury pool can continue to
be regarded as broadly representative of the community and related principles
as to whether expansion of the jury pool to non-Irish citizens would affect the
fairness of jury trials.
2.02
Section 6 of the Juries
Act 1976[83]
provides that every Irish citizen aged 18 years or upwards and who is
registered in the register of Dáil Éireann electors for that jury district (in
effect, the Dáil electoral register for the county or city in question) is
“qualified and liable to serve as a juror” in that jury district. In
1965 the Committee on Court Practice and Procedure, in its Report on Jury
Service, concluded that the electoral register should be the basis for jury
selection, largely because it is “revised annually and can be readily used for
the purpose.”[84] Section 6 of the 1976 Act thus involved the belated implementation of that
recommendation and was, more immediately, the legislative response to the
decision in de Burca v Attorney General.[85]
2.03
The Irish Nationality
and Citizenship Act 1956, as amended, provides that every person born on
the island of Ireland before 1 January 2005 is entitled to be an Irish citizen.
Since 1 January 2005 the citizenship of such a person is dependent on the
citizenship of their parents at the time of birth or the residency history of
one of the parents prior to the birth. A person who fulfils certain conditions
may also apply to the Minister for Justice and Equality for Irish citizenship
through the naturalisation process under the 1956 Act. The requirements for
obtaining naturalisation include residence in Ireland for at least 5 years and
being of good character. The vast majority of applicants for citizenship
through naturalisation are permanently resident in Ireland.
2.04
As discussed in detail
below in Part C, there has been a significant increase in the number of
non-Irish citizens living in Ireland since the enactment of the Juries Act
1976 and this demographic transformation raises the question as to whether the
current jury selection pool remains representative of Irish society.
2.05
Under the Electoral
Act 1992, as amended, Irish citizens may be registered to vote at
every election to Dáil Éireann on the register of Dáil electors. Irish citizens
may also be registered to vote at referendums to amend the Constitution, and
for European Parliament and local elections.[86] British citizens who are ordinarily
resident in the State when the electoral register is prepared may vote at Dáil
elections and also at European Parliament and local elections. Other EU
citizens who are ordinarily resident in the State when the electoral register
is prepared may vote at European Parliament and local elections.[87] Non-EU citizens who are ordinarily
resident in the State may vote at local elections only.[88]
It is notable that while British citizens may vote at elections to Dáil Éireann
they are not qualified for jury service because section 6 of the Juries Act 1976 provides
that Irish citizenship is also a prerequisite for jury service.
2.06
Each county council and
city council, as the electoral registration authority for its area, must
compile an annual register of Dáil electors. In order to be eligible for
inclusion on the register of electors, a person must (a) be at least 18 years
of age on the day that the register comes into force, which is 15 February of
each year, and (b) have been ordinarily resident in the State on 1 September in
the year preceding the coming into force of the register.[89]
2.07
The Commission notes
that the current arrangements for the preparation and maintenance of the
register of electors have been
criticised. The 2008 Report of the Joint Oireachtas Committee on the
Environment, Heritage and Local Government, The Future of the Electoral
Register in Ireland and Related Matters,[90] acknowledged that there were problems with the
completeness of data held in the register of electors and with its accuracy.
The Joint Committee recommended the establishment of a national office to ensure
the continuous registration of eligible persons and the revision of the
existing register onto a centralised IT database.[91]
Also in 2008, the Department of the Environment published a Preliminary Study
on the Establishment of an Electoral Commission in Ireland,[92]
which set out in some detail the functions of an Electoral Commission,
including those identified in the Oireachtas Committee’s report. The
establishment of an Electoral Commission remains government policy, and
legislative proposals to do so are planned.[93]
2.08
The Consultation Paper
noted that the proposed establishment of an Electoral Commission on a statutory
basis, and consequent improvements to the register of electors, would increase
its reliability, including as the basis for jury selection.[94]
2.09
In all parts of the United Kingdom, the electoral register remains the
source for jury lists. A national Electoral Commission has been in place for
some time in the United Kingdom and while this has not been a panacea for all
deficiencies in the electoral register it appears to have provided a focus for its
ongoing review so that improvements are put in place to ensure the accuracy of
the data held on the register.[95]
2.10
In all Australian
jurisdictions, the national electoral register is the primary source list for
jury selection. A number of law reform bodies have considered the issue. For
example, the Law Reform Committee of Victoria recommended that investigations
should be undertaken “to determine the administrative feasibility of
establishing an accurate database of citizens and non-citizen permanent
residents for jury service.”[96]
The Committee recommended that, in the interim, enrolment as an elector for the
Legislative Assembly should continue to be the requirement for
qualification.
2.11
New Zealand also uses
the national electoral register and the Mäori electoral rolls as the lists from
which to issue jury summonses.[97]
The Electoral Enrolment Centre of New Zealand, the organisation responsible for
maintaining the electoral rolls, also draws up jury lists annually. The Juries
Act 1981, as amended,[98]
provides that jury lists are supplied by the Chief Registrar of Electors to the
Registrar of the Court on a regular basis.
2.12
The Commission
considers that the issue of the extent to which persons over 18 are registered
to vote and remain on the electoral register – and therefore remain qualified
for jury service – is beyond the scope of this project and is more suitable for
consideration in the context of reform of electoral law generally (including
the proposed establishment of an Electoral Commission) rather than in the
context of the law on jury service.[99]
2.13
The Commission is conscious that, in other jurisdictions, the electoral
register remains the most common source for jury selection but that other
sources are also used, such as telephone directories, vehicle driver and
vehicle owner databases. In
the Consultation Paper, the Commission considered the possibility of using
supplemental source lists to enhance the representativeness of the jury pool,[100]
but queried the usefulness of such a project, particularly in light of the
administrative costs involved, and ultimately provisionally recommended that
jury lists should not be supplemented or cross-checked with other lists.[101] The Commission considers that, in the Irish setting,
alternative databases present many difficulties in terms of their scope and
reliability for the purposes of jury selection. The Commission has therefore
confined its review of an alternative to the electoral register to the rollout
of the Public Services Card (PSC) and it turns now to assess the viability of
the PSC for that purpose.
2.14
The Social Welfare
Consolidation Act 2005[102] provides
that the PSC, which is based on
the Personal Public Service Number (PPSN), is to be used as a unique identifier
that enables a person to access public services, notably at present social
welfare payments. There are approximately 3 million adults in Ireland to
whom a PPSN has been issued. The
Department of Social Protection, in conjunction with other Government
Departments, has developed the specifications for the PSC under the Standard
Authentication Framework Environment programme (SAFE). In 2010, a contract was
agreed with a service provider and the process of rolling out PSCs began in
2011.[103] In 2012, the
Department of Public Expenditure and Reform indicated that the PSC was being
introduced in an “accelerated fashion” under the Government’s public service
reform plan.[104] In 2011,
approximately 5,000 persons had been issued with a PSC and, by the beginning of
2013, this had increased to 100,000.[105]
It would appear that, even with the accelerated rate of rollout in 2012, it
will take some time for PSCs to be issued to all 3 million adults in the State.
2.15
The PSC provides a
higher assurance of identity than its forerunner, the PPSN. In addition, it is
envisaged that, as its name suggests, the PSC would not be restricted to
accessing social welfare benefits but could also be used in the context of a
range of public services, such as the ability to track an individual’s health
information throughout the health system (in the form of the Unique Health
Identifier under the proposed Health Information Bill[106]),
the EU driver’s licence or the public travel card. While the PPSN was issued
only to those individuals born in Ireland, working in Ireland or receiving a
social welfare benefit in the State, the PSC, by providing a much wider range
of social services, may in time capture a much broader proportion of the
resident population in Ireland. The PSC could thus eventually be used by a
range of public bodies to identify an individual for the provision of
e-government or online services.[107]
2.16
The Commission
acknowledges that the development of the PSC could in time provide a viable
alternative to the electoral register as a basis for juror selection. The
Commission notes that this would primarily be a matter for the Courts Service
to determine in the context of the ongoing development of its IT strategy, and
in conjunction with the Department of Social Protection. This would also be
subject to relevant requirements of the Data Protection Acts, and would
be subject to the proposed Data Sharing Bill[108]
which is broadly intended to encourage sharing of information across public
service bodies subject to suitable safeguards. The Commission also notes below
the intention of the Courts Service to streamline the electoral register data
for the jury selection system.[109]
2.17
For the present, the
Commission is satisfied that current arrangements for jury selection through
the electoral register remain suitable. The Commission notes that in the United
Kingdom, Australia and New Zealand the electoral registers remain the basis on
which jury lists are prepared. The Commission also notes in this respect that,
as discussed above, ongoing steps to ensure the accuracy of the electoral
register are being put in place, including through the proposed establishment
of an Electoral Commission. These are likely to affect current arrangements in
another important respect. As discussed below, the current county-based process
for the annual revision of the electoral register carries over into the jury
selection process, which is also primarily county-based. In the event that the
ongoing maintenance of the electoral register is transferred from local
authorities to the proposed Electoral Commission, it would appear sensible that
this centralised national process would equally carry over into the jury
selection process. Indeed, as also discussed below, this would appear
consistent with current developments in the Courts Service through the Combined
Court Offices project, which include planned arrangements to integrate ICT into
the jury selection process and the proposal to develop a central jury
management system.
2.18
The Commission
recommends that the register of electors should continue to be the source from
which jury panels are drawn. The Commission notes that the proposed
establishment of an Electoral Commission could further facilitate steps to
ensure the accuracy of the register of electors.
2.19
Section 10 of the Juries
Act 1976 provides that each electoral registration authority, that is, each
county council and city council, must deliver copies of the relevant register of
Dáil electors to the County registrar for that county or city as soon as
practicable after each such register is published. Section 11 of the 1976 Act
provides that the County registrar must draw up a panel of jurors from the
register using a procedure of random or other non-discriminatory selection.
2.20
As enacted, section
11 of the 1976 Act had provided that the jury panel was to be drawn up “for each court” in the jury district
but, as amended by section 55 of the Civil Law (Miscellaneous
Provisions) Act 2008, it now provides that the jury panel is to be drawn up
for “one or more courts within a jury district”. This allows a county registrar the discretion
to continue to form separate panels for the Central Criminal Court (High Court)
and the Circuit Criminal Court or to form a single jury panel for both courts.
This facilitates sittings of the Central Criminal Court outside Dublin. Section
11, as amended, also facilitates a single panel being summoned to the Criminal
Courts of Justice complex in Dublin, which opened in 2010 and which houses in a
single location jury trial in the Central Criminal Court and the Dublin Circuit
Criminal Court.
2.21
Section 11 of the 1976
Act also provides that the county registrar must omit persons from the
jury panel whom he or she knows or believes not to be qualified as jurors. This
would currently include persons whom the county registrar is aware are
disqualified from jury service arising from a criminal conviction as a result
of sending the jury panel to the Garda Central Vetting Unit, which is to be renamed the National Vetting Bureau
of the Garda Síochána when the National Vetting Bureau (Children and
Vulnerable Persons) Act 2012 comes fully into force.[110]
2.22
Section 12 of the 1976
Act provides that each county registrar must ensure that a written summons in
the prescribed form[111] is served
on every person selected as a candidate juror, requiring him or her to attend
as a juror at a court or other specified place.[112] The summons must be accompanied by a
notice (the J2 notice or form) informing the candidate juror of the effect of
certain provisions in the 1976 Act.[113] The specified provisions are those on:
qualification for jury service (section 6 of the 1976 Act: discussed in this
Chapter), ineligibility (section 7: see Chapters 4 and 5, below),
disqualification (section 8: see Chapter 6, below), excusal from jury service
(section 9: see Chapter 5, below) and offences by jurors (sections 35 and 36:
see Chapter 8, below).
2.23
Section 13 of the 1976
Act[114] provides that a jury summons may be sent by post or delivered by hand.
It also provides that, in a prosecution for non-attendance for service by a
juror, a certificate by the county registrar that the summons was either posted
or, as the case may be, delivered by hand, shall be evidence of the facts so
certified.
2.24
Section 14 of the 1976
Act provides that where it appears to a judge that a jury will or may be
incomplete, the judge may require any persons (where they are qualified and
liable to serve) to be summoned by the county registrar to make up the number
needed. In that case the judge must specify the area from which persons may be
summoned and the method of summons, whether by written notice or otherwise. Section
15(2) of the 1976 Act provides that this power may be exercised after balloting
has begun under section 15 and if so the judge may dispense with balloting for
persons summoned under section 14.
2.25
Section 15(1) of the
1976 Act provides that the selection of persons empanelled as jurors must be by
balloting in open court.
2.26
Section 15(3) provides
that before the selection of jurors begins the judge must “warn the jurors
present that they must not serve if they are ineligible or disqualified”
and of the penalty under section 36 of the 1976 Act for doing so. Section 15(3)
also provides that the judge must also state that any person who is selected on
the ballot must, if the person (a) knows that he or she is not qualified to
serve or (b) is in doubt as to whether he or she is qualified or (c) may have
an interest in or connection with the case or the parties, communicate the fact
to the judge either orally or otherwise as the judge may direct or authorise.
2.27
Section 15(4) provides that the foreman must be chosen by the jurors and
that this must be done at such time as the judge may direct or, in the absence
of a direction, before the jury bring in their verdict or before they make any
other communication to the judge.
2.28
The electoral register
provided annually to a county registrar under section 10 of the 1976 Act, in
effect the electoral register for a county or city in question, is usually
divided by the relevant court county office into groups, and jury lists are
drawn up on a random and cyclical basis from these groups. The total number of
jury summonses issued annually in the State is in the region of 100,000. Each
Courts Service county office draws up a jury panel for its own local county
business. In terms of volume, the Dublin Courts Service jury office issues the
most jury summonses annually, about 50,000 in total, as it is responsible for
summoning jurors for the Central Criminal Court (which sits primarily in
Dublin), the Dublin Circuit Criminal Court as well as the High Court in Dublin
for civil cases requiring a jury (the most common being for defamation claims).
The persons summoned from the jury panel are asked in the J2 notice that
accompanies the jury summons issued under section 12 of the 1976 Act to
indicate by reply whether they are ineligible, disqualified or excusable as of
right and these are then not called for jury service. Jurors who are otherwise
qualified and eligible are also invited in the J2 form to indicate whether they
are willing to serve on a jury or whether they wish to be considered for
excusal for a specific reason. Where a candidate juror puts forward a reason
for being excused, these are initially considered by the jury office.
2.29
A study carried out in
1993[115] correctly noted that the aim of the jury selection process is to issue
the minimum number of summonses to achieve an adequate supply of jurors. The
study noted that, firstly, there is an administrative cost attached to issuing
jury summonses: the number of staff required increases as the number of
summonses issued increases and more time is required to handle queries and deal
with follow-up documentation. It also noted that there is a cost to individual
members of the public and the economy from the allocation of time from other
activities to jury service. Therefore, the system seeks to ensure that there is
the closest possible match between the number of jurors required to serve and
the number of summonses issued.
2.30
The 1993 study found
that there was an attrition rate of between 60% and 70% of these summoned for
jury service, that is, that between 30% and 40% of those summoned were
available for jury service. The Commission has confirmed in its discussions
with consultees in 2012 that this attrition rate of between 60% and 70% remains
in place at the time of writing.[116]
The Commission understands that the attrition rate can be broken down as
follows. For about 10% of issued summonses, the summons is returned because for
example the person has left the address or is deceased. A further 10% of
persons who are summoned do not attend on the date specified in the summons.
Another 20% to 25% are within the lists of persons who are excusable as of
right, ineligible for jury service or disqualified arising from a criminal
conviction. A further 20% to 25% are qualified and eligible to serve but are
excused on the basis of the discretion to do so under the 1976 Act: the most
common reasons for allowing a discretionary excusal are that the person is a
full-time carer, has a medical procedure that cannot be postponed, work
commitments (in particular where the person is self-employed) or because
holidays have been booked.
2.31
For these reasons, the
Courts Service issues a number of jury summonses that assumes that up to 70% of
those summoned for service will, for these varying reasons, not be available to
serve on a jury. The Courts Service accepts that one of the effects of this
high attrition rate is that even though a person is called for jury service, he
or she may not actually serve because usually more people than necessary are
called. Potential jurors are required to return to court every day, whether or
not they are sworn on to a jury, unless otherwise directed by the court. Since
it is not always possible to forecast when a particular case will start or how
long it will last, a potential juror may sometimes have to wait at court for
what may seem like an unnecessarily long time. The Courts Service notes that
“[e]very effort is made by the court staff to see that the jurors are not kept
waiting and to release, as soon as possible, those people not likely to be
required to serve on a jury on a particular day.”[117]
2.32
The 1993 study also
indicated that, from a sample of attendance rates for jury service, in Dublin,
6% of those issued with summonses were prosecuted for non-attendance, whereas
the figure stood at 2% in Cork and 6% in Limerick. The study recommended that
the prosecution rate should be increased on the basis that this low level of
prosecution would not discourage non-attendance and it also recommended that
the level of fines under the 1976 Act be increased.[118] The maximum fine for non-attendance
under section 34 of the 1976 Act was increased from £50 (€63.49) to €500 by
section 60 of the Civil Law (Miscellaneous Provisions) Act 2008, which
came into force on 1 January 2009.[119]
It appears, however, that between 2009 and 2012 there were no prosecutions for
non-attendance under section 34 of the 1976 Act.[120]
2.33
The Commission turns to
examine to what extent the very large attrition rate of potential jurors and
the consequent requirement for potential jurors to attend court on a number of
days without being called, could be ameliorated, in particular through Information
and Communications Technology (ICT).
2.34
In England and Wales, random
selection of jurors from the electoral register has been done by computer since
1981,[121] and since
2001 a Central Juror Summoning Bureau has operated the juror summoning process
for the whole of England and Wales. A random list of potential jurors is
generated by computer from the electoral register. This is designed to overcome
the deficiencies of the former local-based system, principally in securing a
better match between the number of jurors summoned and the workload of each
court, in providing better communication with potential jurors and
accommodation of their needs, and in bringing greater consistency to the
treatment of their applications for excusal or deferral. The computer system
generates summonses and letters confirming dates for service.[122]
The 2001 Auld Review of the Criminal Courts of England and Wales noted
that the Central Juror Summoning Bureau computer system is linked to police
criminal records to enable automatic checks on any convictions of potential
jurors that would disqualify them from jury service.[123]
2.35
In Northern Ireland,
the Electoral Office supplies on a yearly basis a jury list of randomly
selected electors to the Northern Ireland Courts and Tribunal Service (NICtS).[124] The Electoral Office uses a
computer-based system similar to that employed in England and Wales to develop
the annual jury list. Until 2007, separate jury lists were prepared for each of
the 7 County Court Divisions in Northern Ireland. In 2007, a centralised Jury
Management Team was established in the NICtS, which is broadly comparable to
the English Central Juror Summoning Bureau. Since 2007, the annual jury list is sent to the
Jury Management Team, which manages the process of sending out jury notices for
the 7 County Court Divisions. The Commission notes that in a 2010 study of the
Northern Ireland jury selection process[125] the attrition rate was found to be about 33%, that is, less than half
the current rate in the State. It is important to note in this respect that the
list of ineligible persons and those excusable as of right in the Juries
(Northern Ireland) Order 1996 closely corresponds to the comparable list in
the Juries Act 1976. The 2010 study also noted that the number of jurors
called for jury service had been reduced each year since the centralised Jury
Management Team had been established in 2007 and that this had had at least
three positive effects: by comparison with previous years a higher proportion
of those called for jury service, 51%, had actually served on a jury (those who
were summoned and actually served on a jury were more likely to report that
they had a positive experience of the justice system by comparison with those
called but who did not serve); the reduction in the numbers called remained
consistent with the efficient and effective running of jury trials; and the
administrative costs of the jury selection process had been reduced by 15% by
comparison with previous years.[126]
2.36
The present system of
jury selection relies heavily on paper and the postal service, as well as
in-person communication, rather than being primarily dependent on ICT.[127]
The Commission understands that, at present, there is no e-mail communication
with candidate jurors. The website of the Courts Service includes a section on
jury notices, which informs candidate jurors in cases where they are not
required for attendance at a particular location.[128]
2.37
The then Director of
Public Prosecutions suggested in 2010 that developments in technology ought to
render unnecessary and redundant the process of physically assembling hundreds
of people in a court room each morning to select 12 jurors, which he described
as “a waste of citizens’ time.”[129]
A number of submissions received by the Commission suggested that more
effective use of technology could improve the current system for summoning and
empanelling jurors. These suggestions included the use of an ICT system at the
initial summoning stage of selecting a jury panel from the electoral register,
the use of e-mail and texting to notify summoned jurors of the date for
attending court initially (and any changes to this) and the creation of a live
website listing all cases in progress and any attendant delays.
2.38
The Commission fully appreciates that the Courts Service has been to the
forefront in the use of ICT to enhance the important public services which it
delivers. The Courts Service has noted that, in general terms, technological
advances have reduced back-office tasks and freed up staff to fill posts in
frontline services. It pointed out that, in 2011, 65% of family law maintenance
receipts and 92% of family law maintenance payments were paid electronically,
and over 26% of fines were paid online. Its website received over 2 million
visits in 2011, with over 30% being first time visitors.[130]
2.39
The Courts Service also
accepts that the use of ICT would enhance the efficiency of jury selection
procedures, and that this may be combined with the plans to complete the
roll-out of the Combined Court Office model to a single identified location in
each county.[131]
The Combined Court Office project, which follows from the provision for
combined court offices in the Courts and Court Officers Act 2009, is
intended to eliminate duplication of activities, facilitate the maintenance of
appropriate frontline services, allow more flexibility in opening times and
allow staff access to an increased range of expertise.[132] Among the proposals in the Courts
Service’s ICT Strategy Statement 2011-2014 is the establishment of a Central
Jury Management system.[133] This would consist of an interactive or online jury system that could
reduce the possibility of delay in jury selection, and which would include the
use of scanners and barcodes for juror attendance.[134] It is also the intention of the
Courts Service to streamline the electoral register data take-on for the jury
selection system.[135] The Commission welcomes these developments and the ongoing commitment,
within available resources, to apply ICT to the jury selection process. The
positive findings from the 2010 study of the centralised Jury Management Team
in Northern Ireland, discussed above, suggest that such developments would assist
in further improving the efficiency and effectiveness of the jury selection
process and also enhance the positive experience of those called for jury
service.
2.40
The Commission
commends the ongoing commitment of the Courts Service to enhance the efficiency
of jury selection procedures through the use of ICT resources and through its
proposal to establish a central Jury Management system, which has the potential
of leading to a higher proportion of those summoned for jury service actually serving
on a jury, to enhancing further the efficient and effective running of jury
trials and to reducing the administrative costs of the jury selection process.
2.41
In this Part, the
Commission discusses whether qualification for jury service should be extended
to persons other than Irish citizens, particularly in the light of the
significant increase in the percentage of the population of the State who are
non-Irish citizens. This discussion focuses on some key principles discussed in
Chapter 1, namely, that jury panels should be broadly representative of the
community having regard to the provisions on criminal trials in Article 38.1
and 38.5 of the Constitution of Ireland, and that while the panels need not, as
a constitutional requirement, match exactly the community at any given time,
they should be reviewed to determine whether the general jury pool from which
persons are being selected for jury service no longer reflect the community as
a whole. The Commission begins by reviewing comparative developments in jury
qualification. Following this, the Commission reviews the submissions received
on the provisional recommendations made in the Consultation Paper, and then
sets out its final recommendations for reform of the law on qualification for
jury service.
2.42
In England, Wales and
Scotland non-British citizens have been entitled to sit on juries since the
enactment of the Juries Act 1870, section 8 of which provided that
“aliens” who were resident in Britain for 10 years were qualified for jury
service. It is notable that the Juries (Ireland) Act 1871, which in most
other respects was modelled on the 1870 Act, provided in section 7 that
“aliens” were disqualified from jury service in Ireland.
2.43
Section 1 of the
Juries Act 1974 now provides that persons who are registered as
parliamentary or local government electors are eligible for jury service in the Crown Court (where most
criminal jury trials are held) and the High Court (for civil jury trials, now
confined primarily to defamation trials, as in Ireland). For this purpose a “local government elector”
is defined as a citizen
of the UK, a British Commonwealth citizen, a citizen of the Republic of Ireland
or a “relevant” citizen of the European Union (a citizen of an EU Member State
other than the UK or Ireland).
2.44
As already noted, section 8 of the Juries Act 1870 had required that a non-British
citizen be domiciled in
Britain for 10 years in order to be qualified for jury service. The 1965 Report of the Departmental
Committee on Jury Service[136] recommended
that the 10 year rule be replaced by a 5 year residency requirement, and this
was implemented in section 1 of the 1974 Act, which requires that the
parliamentary or local government elector must have been ordinarily resident in the United
Kingdom, the Channel Islands, or the Isle of Man for any period of at least 5
years since the age of 13. In 2001, the Auld Review of the Criminal
Courts of England and Wales received
a number of submissions calling for reform of the residency requirements but ultimately
considered that there was “no compelling case for change.”[137]
2.45
The Juries (Northern Ireland) Order 1996[138] provides that every person who is
aged between 18 and 65 and is registered as an “elector” is qualified for jury
service.[139] The 1996 Order defines “elector”
for this purpose as “a local elector” as defined in the Electoral Law Act
(Northern Ireland) 1962. [140] The definition of local elector in
the 1962 Act was repealed and replaced by the definition of local elector in
section 1 of the Elected Authorities (Northern Ireland) Act 1989. Section
1 of the 1989 Act, as amended,[141] provides that a person is entitled to vote as an elector at a local
election in Northern Ireland if on the date of the poll he or she is a citizen
of the UK, a Commonwealth citizen, a citizen of the Republic of Ireland or a
“relevant” citizen of the European Union (a citizen of an EU Member State other
than the UK or Ireland). This definition is identical to the definition that
applies in England and Wales. In addition, the person must be registered in the
register of local electors, and for this purpose the 1962 Act provides that the
person must have been resident in Northern Ireland for three months to qualify
for registration on the electoral lists.[142]
2.46
The Northern Ireland
Court Service carried out a public consultation between 2008 and 2010 on Widening
the Jury Pool,[143] which
examined a number of specific areas under which the Northern Ireland jury pool
could be extended. Given that the 1996 Order already provides for a very wide
definition of qualified “electors” which includes non-British citizens, the
focus of that consultation was on other aspects of widening the jury pool, such
as amending the list of ineligible persons, persons excusable as of right and
persons disqualified from jury service arising from criminal convictions. These
aspects are discussed in Chapters 4 to 6, below.
2.47
All Australian
jurisdictions require citizenship as an element of eligibility for jury
service. A number of law reform bodies in Australia have considered extending
eligibility to non-Australian citizens, but the position remains unchanged at the
time of writing.[144]
2.48
In New Zealand, section
6 of the Juries Act 1981, as amended,[145] provides that individuals who are
registered as electors are qualified and liable to serve as jurors. In New
Zealand, eligibility to vote in elections not only extends to citizens but also
to permanent residents, who have “at some time resided continuously in New
Zealand for a period of not less than one year.”[146] The Electoral Act 1993 provides
for the mandatory enrolment of those eligible to vote, including permanent
residents, on the register of electors (failure to do so being a criminal
offence).[147]
2.49
New Zealand uses the
national electoral register and the Mäori electoral rolls as the lists from
which to issue jury summonses.[148] The Electoral Enrolment Centre of New
Zealand, the organisation responsible for maintaining the electoral rolls, also
draws up jury lists annually. The Juries Act 1981, as amended,[149]
provides that jury lists are supplied by the Chief Registrar of Electors to the
Registrar of the Court on a regular basis. The system of processing lists and
administering summonses is computerised, which renders the process increasingly
more efficient.[150]
2.50
Citizenship is a
requirement for service as a juror in the United States, and indeed, many
believe that one of the key functions of jury service is to educate citizens
about democracy.[151]
2.51
In the Consultation
Paper, the Commission noted that there has been a significant increase in the
number of non-Irish citizens living and working in Ireland since the enactment
of the Juries Act 1976.[152] The Commission also noted that
extending jury selection to non-Irish citizens would significantly broaden the
pool of candidate jurors and would have the positive effect of aligning juror
panels with contemporary society.[153] Thus, the Consultation Paper
provisionally recommended that jury panels be based on the register of electors
for Dáil, European and local elections since non-Irish citizens are eligible to
vote in local elections.
2.52
The Consultation Paper
also provisionally recommended that non-Irish citizens drawn from the register
of electors should satisfy the 5 year residency eligibility requirement for
Irish citizenship in order to qualify for jury service, and that such
individuals must be capable of following court proceedings in one of the
official languages of the State, Irish or English.[154]
2.53
As noted above,[155]
the Consultation Paper also emphasised the importance of the principles of
representativeness and inclusiveness in drawing up jury lists, and
provisionally recommended that (a) jury panels should be based on the register of
electors for Dáil, European and local elections; (b) non-Irish citizens drawn
from the register of electors should satisfy the five year residency
eligibility requirement for Irish citizenship in order to qualify for jury
service, and (c) non-Irish citizen jurors must be capable of following court
proceedings in one of the official languages of the State, Irish or English.[156]
2.54
The Commission notes
that the question of extending eligibility for jury service beyond the current
position by which eligibility is confined to Irish citizens who are registered
on the Dáil electoral register – which amounts to a potential pool of about 3
million adults – is related to two of the key principles set out in Chapter 1.
These are: that the pool or panel should be broadly representative of the
community; and that, while the panels need not, as a constitutional
requirement, match exactly the community at any given time, they should be
reviewed to determine whether the general jury pool has, over time, begun to
shrink to such an extent that the persons being selected for jury service no
longer reflect the community as a whole.
2.55
The Commission acknowledges that there have been significant changes in
this respect in the population of the State in the 10 years from 2002 to 2011.
These changes have been greatly influenced by the fact that many citizens of the 27 Member States of the
European Union are free, under EU law, to live and work in the State; and that,
in addition, many other non-Irish citizens formed part of a large
pattern of inward migration to the State prior to the global economic downturn
of recent years. The Central Statistics Office (CSO) has published a breakdown
of the relevant figures derived from the April 2011 Census.[157] The following Table[158]
indicates the breakdown by nationality.
Table
Population of Non-Irish nationals in Ireland by
nationality, 2002, 2006 and 2011
Nationality
2002
2006
2011 Change
2002-2011 % change
Poland
2,124
63,276
122,585
120,461
5,671.4
UK
103,476
112,548
112,259 8,783
8.5
Lithuania
2,104
24,628
36,683
34,579
1,643.5
Latvia
1,797
13,319
20,593
18,796
1,046.0
Nigeria
8,969
16,300
17,642
8,673
96.7
Romania
4,978
7,696
17,304
12,326
247.6
India
2,534
8,460
16,986
14,452
570.3
Philippines
3,900
9,548
12,791
8,891
228.0
Germany
7,216
10,289
11,305
4,089
56.7
USA
11,384
12,475
11,015
- 369
3.2
China
5,842
11,161
10,896
5,054
86.5
Slovakia
297
8,111
10,801
10,504
3,536.7
France
6,363
9,046
9,749
3,386
53.2
Brazil
1,087
4,388
8,704
7,617
700.7
Hungary
409
3,440
8,034
7,625
1,864.3
Italy
3,770
6,190
7,656
3,886
103.1
Pakistan
2,939
4,998
6,847
3,908
133.0
Spain
4,436
6,052
6,794
2,358
53.2
Czech Republic
1,103
5,159
5,451
4,348
394.2
South Africa
4,185
5,432
4,872
687
16.4
Other non-Irish
45,348
77,217
85,390
40,042
88.3
Total
non-Irish
224,261
419,733
544,357
320,096
142.7
2.56
Thus, in 2011, there
were 544,357 non-Irish nationals living in Ireland, representing 12% of
the total population in the State. This was an increase of 124,624 since the
previous Census in 2006 (when non-Irish nationals represented 5.8% of the total
population) and an increase of 320,096 since the 2002 Census. The CSO figures indicate that 12 nations with
over 10,000 residents accounted for 74.4% of all non-Irish nationals in 2011. A
further 34 nations with between 1,001 and 10,000 residents accounted for
another 20.6% per cent of the non-Irish nationals in Ireland. There was an
increase of the number of non-Irish families with children, which increased
from 41% of all households in 2006 to 50% in 2011. It is clear that these
figures indicate a significant increase in the number of non-Irish nationals
living in Ireland between 2002 and 2011 and who have established more than a
temporary connection with the State. The percentage of non-Irish nationals with
children indicates a significant presence in Irish society over and above
residency. These non-Irish citizens therefore form an important part of
contemporary Irish society.
2.57
This demographic
transformation in the population of the State between 2002 and 2011 reinforces
the Commission’s view expressed in the Consultation Paper that the jury
selection pool in the Juries Act 1976 is not representative of
contemporary Irish society, given that a high number of long-term residents in
the State, who are not Irish citizens, are not qualified for jury selection
under the 1976 Act. Indeed, there was general consensus in the
submissions received and during the consultation process that, because only
Irish citizens are qualified to serve as jurors under the Juries Act 1976,
the current qualification criteria for jury service do not produce jury pools
or panels that are broadly representative of the community in Ireland.
2.58
The Commission notes
that just over 3 million Irish citizens over the age of 18 are eligible to vote
in general elections and are, therefore, qualified for jury service under the Juries
Act 1976. The Commission also notes that over 112,000 UK citizens live in
the State and are eligible to vote in general elections under the Electoral
Acts but are not qualified to serve on juries. By contrast, Irish citizens
are eligible to vote in general elections in the UK, and are qualified to serve
on juries there, including in Northern Ireland. The Commission also notes that
a further 100,000 adults, EU citizens and non-EU residents, are registered on
the local election register. Taking account of these indicative numbers, the
Commission notes that, if these adults were eligible for jury service, in the
region of 200,000 additional persons, representing much of the non-Irish citizen
population changes since 2002, would be available for jury service.
2.59
The Commission
considers that the exclusion of this very large group of people from potential
jury service is difficult to reconcile with the key principles set out in
Chapter 1, in particular that the pool or panel should be broadly
representative of the community; and that, while the panels need not, as a
constitutional requirement, match exactly the community at any given time, they
should be reviewed to determine whether the general jury pool has, over time,
begun to shrink to such an extent that the persons being selected for jury
service no longer reflect the community as a whole. In addition, having regard
to the general view expressed during the consultation process, the Commission
sees no reason to depart from the views expressed in the Consultation Paper
concerning the extension of qualification for jury service to non-Irish
citizens and residents who are registered to vote at elections in the State.
The Commission also notes that such a reform would mirror arrangements already
in place in the United Kingdom, including Northern Ireland, as well as in
comparable common law jurisdictions referred to above.
2.60
The Commission notes that the issue of whether eligibility for jury
service should be connected to a person’s length of residency in the State is
not simply a crude matter of excluding those who have recently arrived in Ireland.
Rather, it derives from the key principles set out in Chapter 1. These include
the requirement that in order to meet the provisions of the Constitution concerning a fair trial,
and of comparable provisions in international human rights instruments, jurors
should have certain minimum standards of personal capacity and competence. In
addition, in the specific context of criminal trials, which is the most common
use of jury trials in Ireland, the Commission notes the importance of the
specific provisions on
criminal trials in Articles 38.1 and 38.5 of the Constitution. Another
important principle of relevance is that jury pools should be representative of
the community, and this connotes a knowledge of and close connection with
society rather than mere residency. The Commission also recalls a related
general principle, namely, that jury service is a duty which falls upon members of the
population of the State rather than a right of an individual in the State.
2.61
The Commission also notes that, in the course of a trial, evidence may
often arise that involves important details of local knowledge and culture
which may not be familiar to a person who is newly arrived in the State and
which may require a period of social interaction with the local and national
community. In addition, complex evidence is often presented that would require
a high level of linguistic competence in the English language, through which
the vast majority of trials are conducted in Ireland. The Commission accepts
that there are likely to be a number of non-Irish nationals who will meet these
requirements. It is nonetheless important to emphasise that length of residency
is likely to be an important indicator of this aspect of juror competence, and
which underpins a crucial aspect of the Constitution and of international human
rights instruments, namely, that a person has a right to a court hearing that
can be described as applying standards of fair procedures.[159]
2.62
During the consultation process, there were differing views as to what
residency period would be required in order to deem a non-Irish citizen
eligible for jury service. Many of those who made submissions and with whom the
Commission engaged considered that the five months period set out in the Electoral
Acts in order to be registered to vote at local elections was too short a
period. The Commission also notes that there was no clear consensus as to what
would be an appropriate period, and the suggested periods ranged from 1 year to
5 years. It was also suggested that the type of residency rather than the
simple fact of residency might need to be considered, for example, drawing a
distinction between asylum seekers, those with leave to remain, and those with
permanent residency. A number of consultees acknowledged the difficulty of
verifying length of residency and of assessing a candidate juror’s level of
linguistic competence.
2.63
The Commission has concluded that a suitable length of residency requirement
should be in place to ensure that jury trials meet the requirements of the Constitution, and of comparable
provisions in international human rights instruments, concerning the right to a
fair trial. The Commission has also had regard in this respect to the
specific provisions on
criminal trials in Articles 38.1 and 38.5 of the Constitution. The Commission acknowledges
that, bearing in mind that it has recommended that jurors will continue to be
selected from the electoral register, it would be difficult to ensure that
those initially selected for jury service from the electoral roll meet a
residency requirement. In this respect, the Commission notes that it would be
for each summoned potential juror to consider and reflect on whether he or she
is eligible to serve. This would not, however, be unique to this specific
requirement of jury service; a similar issue arises, for example, in connection
with competence, discussed in Chapter 4, below. As the discussion above of the
attrition rate of jurors indicates, the current process for selection of
potential jurors from the electoral list involves the practical reality that a
percentage of those summoned are not qualified, are ineligible or are otherwise
disqualified from jury service. The Commission therefore notes that, both under
the existing provisions of the Juries Act 1976 and under the reform
proposals made by the Commission in this Report, there would remain a number of
areas where it is primarily a matter for the potential juror to inform the
court that he or she is not qualified or eligible for jury service and
therefore wishes to be excused from jury service. In that context, the
inclusion of a residency requirement would be consistent with this.
2.64
The Commission has concluded that, while there is no specific period
after which it can be said that all persons would be competent to serve on any
jury dealing with any matter, a period of 5 years would be a suitable period of
time to indicate that the person has become part of the community and would
therefore be competent to carry out the functions of a juror, which is also the
indicative time period related to applying for citizenship through
naturalisation. The Commission emphasises that it remains a matter for each
potential juror to determine whether he or she is competent to carry out the
duty of jury service and that, on being summoned for jury service, if he or she
has any doubt to inform the court of this. This approach is consistent with the
Commission’s analysis of competence in Chapter 4 of the Report.
2.65
The Commission recommends that, in addition to the current position
under which Irish citizens who are registered to vote as Dáil electors in a
jury district are qualified and liable to serve on juries, the following
persons should also be qualified and liable to serve: every citizen of the
United Kingdom aged 18 years or upwards who is entered in a register of Dáil
electors in a jury district; and every other person aged 18 years and upwards
who is entered in a register of local government electors in a jury district.
2.66
The Commission also recommends that a non-Irish citizen referred to
in paragraph 2.65 must, in order to be eligible for jury service, be ordinarily
resident in the State for 5 years prior to being summoned for jury service.
3
3.01
In this Chapter, the Commission examines jury challenges, that is,
objections made to jurors after they have been drawn from the panel of
potential jurors but before they have been sworn as jury members. The Juries
Act 1976 currently provides for two types of challenge: challenges without
cause shown, sometimes referred to as peremptory challenges, which involve
objections made without putting forward a stated reason; and challenges for
cause shown, that is, objections based on putting forward a specific reason.
The 1976 Act permits each participant in a criminal or civil trial to make
seven challenges without cause and, because of this, in practice there are very
few occasions in which challenges for cause are made. In Part B, the Commission
discusses challenges without cause shown (peremptory challenges) and, in Part
C, challenges for cause. In both Parts, the Commission examines the two types
of challenge by reference to comparable processes in other jurisdictions and
then sets out its final recommendations.
3.02
Section 20(2) of the Juries
Act 1976 provides that, in every criminal trial involving a jury,
the prosecution and each accused person may challenge 7 jurors without cause
shown. Similarly, section
20(1) provides that, in every civil trial involving a jury, each party
may challenge 7 jurors without cause shown. The challenge is generally made immediately before the juror steps up to
swear the juror’s oath.[160] Section
20(3) of the 1976 Act provides that whenever a juror is lawfully challenged
without cause shown, he or she shall not be included in the jury.[161]
This does not mean that the person is excused from jury service; where a person is challenged, he or
she returns to the jury panel and may very well be selected again in the
balloting procedure and may, therefore, be liable to serve on another jury if
he or she is not challenged.
3.03
The 1976 Act contains no equivalent of section 59 of the Juries Act
1927, which had included the prosecution’s right to “stand by” jurors in
criminal cases, that is, to object to a juror without cause subject to the
juror being retained for selection for a later trial if required. In that
respect, the 1976 Act now places the prosecution and defence in a criminal
trial on the same footing as far as challenges are concerned.[162] In
practice, in criminal trials, challenges are often exercised by the solicitor
for the defence and for the prosecution, though counsel may also be involved in
some instances.[163]
This contrasts with the position in the United Kingdom, where the Commission
understands that counsel are more often involved in jury challenges.
3.04
No reasons are provided
for the challenge without cause, nor do they involve any questioning of the
potential juror; hence their peremptory nature. As such, they reflect “a
subjective assessment of the likely attitude of the juror to the challenger’s
case, based on matters such as: age, sex, appearance, address or employment.”[164]
3.05
During the 20th
century and early years of the 21st century, the entitlement to make
challenges without cause in the United Kingdom was, over time, reduced and,
ultimately, abolished. In England and Wales, in 1948 the number of permissible
peremptory challenges was reduced from 20 to 7,[165]
and section 12(1) of the Juries Act 1974 retained the number at 7 (as
already noted, this was also adopted in the Juries Act 1976). The number
was reduced to 3 by section 43 of the Criminal Law Act 1977, and
the right of peremptory challenge was abolished entirely in England and Wales
by section 118(1) of the Criminal Justice Act 1988[166]
and in Scotland by the Criminal Justice (Scotland) Act 1995.
3.06
In Northern Ireland,
peremptory challenges were abolished in 2007 by section 13 of the Justice
and Security (Northern Ireland) Act 2007, which amended the Juries
(Northern Ireland) Order 1996. This change
formed part of a number of related changes made to the 1996 Order in the 2007
Act in order to implement proposals in a 2006 Consultation Paper
published by the UK Government[167] to support
the reintroduction of jury trial in Northern Ireland, thus replacing the
non-jury Diplock courts that had been in place since the early 1970s in Northern Ireland. The 2006
Consultation Paper had concluded that the return of jury trial should be
accompanied by the abolition of peremptory challenges in order to prevent any
appearance of biased selection procedures.[168]
3.07
Notwithstanding the
abolition of peremptory challanges, the Crown retains the right to “stand by,”
which involves sending the juror back into the jury pool or panel, from where
he or she could be called again if the pool runs out of potential jurors. Thus,
Article 15(4) of the Juries (Northern Ireland) Order 1996 provides that
the judge may at the request of the Crown, but not of a private prosecutor,
order any juror to “stand by” until the panel has been used in full. There is
no limit on the number of candidate jurors which may be challenged in this way.
After the abolition of the peremptory challenge, the Attorney General for
England and Wales issued guidelines on the use of the “stand by” procedure,[169]
which state that it should only be used on the basis of clearly defined and
restrictive criteria: (a) to remove a juror in a terrorist or security
case in which the Attorney General has authorised a check of the jury list or (b) where the juror is
“manifestly unsuitable” and only if the defence agrees, for example, where a juror for a complex case
would not be competent because of literacy issues.
3.08
All jurisdictions in the United States have some system of peremptory
challenges in place.[170] Counsel
for both parties are permitted to question jurors prior to empanelment. There
is support both judicially and academically for the abolition of peremptory
challenges.[171] Some
States have reduced the number of peremptory challenges available to each
party.[172]
3.09
As is the case in many
jurisdictions, peremptory challenges are used in the United States as a means
of influencing the composition of the final 12 members of the jury. Thus, in a
1992 Massachusetts trial of a Catholic priest for blocking access to abortion
clinics, the prosecution used peremptory challenges to eliminate prospective
jurors with Irish Catholic-sounding surnames, on the assumption that ethnicity
and religion would control jurors’ perspectives.[173]
The conviction was overturned on the basis that this had violated the
defendant’s right to a jury drawn from a representative cross-section of
society.
3.10
In Swain v Alabama[174]
the US Supreme Court found that the systematic use of peremptory challenges
could violate the Equal Protection Clause of the US federal Constitution. In Batson
v Kentucky[175] a
majority of the US Supreme Court found that, once the defendant raises a prima
facie case of racial discrimination with respect to peremptory challenges, the
burden shifts to the State to come forward with a neutral explanation for
challenging black jurors. Furthermore, race-based challenges by the defendant
are also prohibited. In JEB v Alabama[176]
the Court went further and held that excluding jurors through the use of
peremptory challenges on the basis of gender also violated the Equal Protection
Clause. Blackmun J stated:
“All persons, when granted the opportunity to serve on a jury, have the
right not to be excluded summarily because of discriminatory and stereotypical
presumptions that reflect and reinforce patterns of historical discrimination.”
3.11
The emphasis here is on
(a) the rights of prospective jurors, (b) the need to prohibit any injustice
one or other party might suffer as a result of an unrepresentative jury, and
(c) the damage caused to public confidence in the justice system by racially
discriminatory practices in jury selection.[177]
3.12
Section 634 of the Canadian Criminal Code provides that where an accused
is charged with high treason or first degree murder, the prosecutor and the
accused are each entitled to 20 peremptory challenges. Where the sentence for the
offence charged exceeds five years, the prosecution and defence are each
entitled to 12 peremptory challenges. In all other cases, both parties are
entitled to 4 peremptory challenges each. In the case of a joint trial, Article
634 provides that “the prosecutor is entitled to the total number of peremptory
challenges available to all the accused.”
3.13
All Australian states and territories have some right of peremptory
challenge available.
3.14
In New South Wales, each party is entitled to three peremptory
challenges. The New South Wales Law Reform Commission has recommended that the
right of peremptory challenge be retained,[178]
but suggested that the mechanism should be continually monitored and abolished
if it is considered that it does not serve any legitimate purpose.[179]
The Jury Amendment Act 2010 did not change the position in New South
Wales with respect to peremptory challenges.
3.15
In Victoria the three methods that exist to challenge a candidate juror
are: challenge for cause, peremptory challenge, and the Crown’s right to stand
aside.[180] The
Parliament of Victoria Law Reform Committee in its Final Report on jury service
in 1996 recommended that the right of the Crown to stand aside prospective
jurors should be substituted for a right to peremptorily challenge.[181]
The Committee also recommended that the Director of Public Prosecutions should
publish guidelines on the use of peremptory challenges by the Crown.[182]
Sections 38 and 29 of the Juries Act 2000 now provide that the Crown may
stand aside between 4 and 10 potential jurors per accused, depending on how
many accused have been arraigned in the trial. Each accused is entitled to
challenge peremptorily between 4 and 6 candidate jurors, depending on how many
accused have been arraigned in the trial.
3.16
Section 17 of the New
Zealand Juries Amendment Act 2008 provides
that, in every case tried by a jury, each party may challenge without cause 4
jurors. When two or more persons are being tried together, the prosecution may
challenge without cause a maximum of 8 jurors.
3.17
Under section 24 of the
Juries Act 1981, as amended by the Juries Amendment Act 2008, the
prosecution and defence are each entitled to 4 peremptory challenges. Where there
are two or more defendants, the Crown is entitled to a total of 8 challenges
without cause.
3.18
Under section 27 of the
1981 Act, a trial judge can direct individuals to stand by until all other
jurors are called and challenged, and this power does not appear to be limited
to any particular number of potential jurors.
3.19
In its Report on
Juries in Criminal Trials,[183]
the New Zealand Law Commission recommended that the mechanism be retained. The
Commission also recommended the introduction by the prosecution of guidelines
explaining the bases on which it is or is not appropriate to use the peremptory
challenge. The Juries Amendment Act 2008 allowed for the retention of
peremptory challenges, but did not refer to a system of guidelines for their
use.
3.20
In Hong Kong, section 29 of the Jury Ordinance, provides that both the defence and prosecution
are entitled to challenge up to 5 candidate jurors without cause. The
prosecution is entitled to “stand by” candidate jurors. In Hong Kong, the court
has considerable discretion in excluding persons from jury service during the
trial, prior to the verdict. The Law Reform Commission of Hong Kong considered
the area in 2008 but did not recommend any reform.[184]
3.21
The Consultation Paper
outlined a number of arguments both against peremptory challenges and also in
favour of their retention.
3.22
The arguments listed
against peremptory challenges included the following: peremptory challenges
have the potential to cause juror frustration and humiliation,[185]
the challenge is inherently arbitrary,[186]
it is inefficient,[187] such
challenges do not give rise to representative juries and provide scope for
discrimination,[188] they can
be exploited by potential jurors,[189]
the challenge for cause is a sufficient alternative to meet the needs of
justice,[190] and it is
an ineffective tool in excluding biased jurors.[191]
3.23
Abramson has commented
on the position in the United States: [192]
“Lawyers often use their peremptory challenges on the basis of some
suspicion that young or old, rich or poor, white-collar or blue-collar, Italian
or Irish, Protestant or Jewish jurors will be favourable to the other side. The
effect of such peremptory challenges may be to lessen the representative nature
of the jury actually seated. Why should lawyers be able to undermine the
cross-sectional nature of the jury at all? Such a question forces us to
explore, at a more philosophical level, what theory of representation we are
trying to practice when we reform juries to be cross sections of the
community.”
3.24
Commenting on jury
systems more widely, Vidmar notes:
“Critics of the peremptory challenge argue that not only does the
challenge permit, and perhaps even encourage, invidious discrimination against
potential jurors, it causes jurors to become ‘frustrated and cynical about the
justice system.’”[193]
3.25
In the Irish setting,
it has been suggested that “[i]ts arbitrary nature is just the sort of thing
which brings the law into disrepute, especially in the eyes of those who have
given of their time to act as jurors.”[194]
3.26
In favour of the
peremptory challenge, the Consultation Paper noted the following arguments: the
challenge for cause is not a sufficient alternative to the peremptory challenge
in meeting the needs of justice,[195]
the accused is afforded some degree of control over the composition of the
jury,[196] the
challenge can assist in securing a representative jury,[197]
and the peremptory challenge ensures that competent and impartial jurors are
selected.[198]
3.27
As already noted, a
number of law reform agencies have recommended the retention of peremptory
challenges. For example, the New Zealand Law Reform Commission has noted that:
“One advantage which peremptory challenges have over challenges for
cause is that the latter are more demeaning, as counsel must publicly
articulate their reasons for asserting a juror’s unsuitability. Prior to
empanelling, some judges explain to the jurors the peremptory challenge process
and tell them that the reasons for challenge are not to be regarded as
personal. This takes most of the sting out of peremptory challenges, and the
Commission would endorse this practice.”[199]
3.28
The New Zealand Law
Reform Commission also noted that peremptory challenges provide the accused
with a measure of control over the composition of the jury that will judge him
or her, and that if the opportunity to challenge in such a manner were to be
removed, the accused may hold a sense of grievance or injustice as a result.[200]
3.29
On balance, the
Consultation Paper provisionally recommended that peremptory challenges be
retained.[201] It
provisionally formed the view that a reduction from 7 peremptory challenges to
5 may be appropriate, but ultimately invited submissions as to whether the
number should be reduced.[202]
3.30
The Commission did not
consider that the development of statutory, enforceable guidelines on the use
of peremptory challenges would be a useful reform as there would be no clear
basis upon which to monitor compliance with the guidelines.[203]
The Commission did consider, however, that guidelines may be useful in
assisting prosecuting counsel in making a decision on whether it is appropriate
to peremptorily challenge, and therefore provisionally recommended that the
Director of Public Prosecutions should develop guidelines on when it is
appropriate to use them.[204]
3.31
The submissions received by the Commission, and its further
consultations with interested parties, reflected a wide diversity of views on
peremptory challenges. Some consultees favoured abolition, others suggested a
reduction in the number and others urged retention of the current number of
peremptory challenges. From a procedural point of view, it was noted that fewer
individuals might have to be summoned for jury service if the number of
challenges were reduced.
3.32
As to the practice of challenges, consultees noted that, in general,
both sides in a criminal trial ordinarily use between 3 and 5 challenges each,
but that in some instances all 7 challenges are used by both the prosecution and
defence. A number of consultees acknowledged that the use of peremptory
challenges has the potential to undermine the principles of representativeness.
It was suggested by some that conservatively dressed individuals, who may be
linked to a certain social class, are frequently or always challenged
peremptorily, but other consultees considered that this was not necessarily
their experience. Equally, it was noted that in some instances, there might be
a preference by one side for a jury comprising a majority of women or, as the
case may be, a majority of men. It was also noted that, as both sides were
entitled to the same number of challenges, any apparent preference for, or
dislike of, a person on grounds of his or her social class or sex by one side
would be cancelled out through the exercise of peremptory challenges by the
other side. Consultees therefore noted that, in practice, any attempt by either
side to use all their peremptory challenges to achieve a specific “balance” was
unlikely to achieve this aim. Consultees accepted that they had been involved
in trials involving a jury comprising 12 women and (reflecting the invariable
position before the de Burca case and the enactment of the Juries Act
1976) a jury comprising 12 men. The Commission reiterates, as already noted
in Chapter 1, that a jury of 12 women or a jury of 12 men is perfectly
permissible; jury representativeness requires that the panel or pool from which
a jury is selected should be broadly representative of the community, not that
the jury actually chosen is broadly representative. In addition, the Commission
notes that, in practice, the process of peremptory challenges generally results
in juries that reflect the panel or pool from which they emerge.
3.33
Consultees acknowledged that the process of peremptory challenge could
cause embarrassment for a potential juror if not handled suitably; and the
Commission notes that, as pointed out in Chapter 1, while jury service is
correctly described as a duty rather than a right, it should be valued and
supported to the greatest extent possible by the State. Consultees noted that
trial judges usually explained that the use of peremptory challenges did not
involve any personal slight on a potential juror, and it was agreed that it would
be appropriate that the procedure be explained clearly and, as far as
practicable, in a consistent manner.
3.34
Consultees noted that, by contrast with the position in the past when
the prosecution had the additional power to “stand by”, the current law dealt
with both sides equally (with the arguable exception of the minority of trials
involving multiple defendants, referred to below). Indeed, it was noted that
the operation of peremptory challenges in practice meant that a potential juror
was not completely shut out from being considered for jury service; a juror who
is challenged peremptorily remains part of the jury panel and may be selected
again through the balloting procedure and, if no objection is made, may serve
on a different jury. Consultees noted that this often occurred in practice in
the context of court areas such as Dublin where more than one jury was required
from the panel summoned for jury service.
3.35
As to peremptory challenges in multiple-defendant trials, consultees did
not favour allowing the prosecution to have the total number of peremptory
challenges available to all the accused (the position in Canada, but not the
approach taken in any other jurisdiction reviewed).
3.36
Having considered this
matter again in preparing this Report, the Commission accepts that, as
summarised above, a number of valid arguments can be made both for the
abolition of, and retention of, peremptory challenges. In arriving at a final
conclusion and recommendation, the Commission remains of the view as expressed
in the Consultation Paper that, on balance, the arguments in favour of
retaining peremptory challenges outweigh those in favour of their abolition.
The Commission notes in this respect that the peremptory challenge process as
it operates in practice in Ireland has the effect that juries are broadly
representative of the pool or panel from which they are selected (and the
Commission emphasises that this is a separate matter from the issue discussed
in Chapter 2 as to whether the pool or panel as currently constituted should be
expanded). The Commission has also taken into account that, in the majority of
common law jurisdictions reviewed for this project, the concept of peremptory
challenge has been retained, including after extensive consideration by law
reform agencies. In this respect, the Commission agrees with the views
expressed by the New Zealand Law Reform Commission that the retention of
peremptory challenges affords the accused some degree of control over the
composition of the jury, that, in practice, it is consistent with securing a
representative jury, and that it also ensures that competent and impartial
jurors are selected.
3.37
The Commission also
agrees that, when suitably explained, the process of peremptory challenge has
an advantage over the process of challenges for cause (discussed in Part C,
below), which can be more demeaning because the solicitor or counsel must
publicly articulate their reasons for asserting a juror’s unsuitability. The
Commission also notes that the complete abolition of peremptory challenges
could lead to lengthy pre-trial selection of jurors, based on detailed
questioning of candidate jurors, which in itself could be intrusive and
demeaning, as well as involving additional trial costs.
3.38
As to whether the
number of peremptory challenges should be reduced, the Commission has concluded
that no clear case has been made for this and that, therefore, it is more
appropriate to retain the current law. This includes concluding that there
should not be a different rule for the minority of trials involving multiple
defendants. The Commission notes that its consultative process has revealed a
good qualitative understanding of the operation of peremptory challenges in
practice. The process could, perhaps, benefit from future empirical research,
which the Commission discusses more generally in Chapter 11, below; and the
Commission considers that the ongoing application in practice of peremptory
challenges, and any future reform of this area, could beneficially be preceded
by such research. The Commission has also concluded that no convincing case has
been made for statutory guidance on the criteria to be used for peremptory
challenges, but, equally, that the courts should continue to provide clear and
consistent guidance to the effect that the use of peremptory challenges
does not involve any personal slight on a potential juror, and that the Director of Public Prosecutions
could consider whether general guidance would be suitable for inclusion in the Guidelines
for Prosecutors.[205]
3.39
The Commission
recommends that the current law in the Juries Act 1976 on challenges without
cause shown (peremptory challenges) should be retained. The Commission also
recommends that the courts should continue to provide clear and consistent
guidance to the effect that the use of peremptory challenges does not involve
any personal slight on a potential juror and that the Director of Public
Prosecutions consider whether general guidance on challenges without cause
shown would be suitable for inclusion in the Director’s Guidelines for
Prosecutors.
3.40
Challenges for cause
shown are rarely used in Ireland. This is because of the availability for both
sides of 7 challenges without cause shown (peremptory challenges), which the
Commission has discussed in Part B.
3.41
Section 21(2) of the Juries
Act 1976 provides that “any number of jurors” may be challenged for
cause shown by both the prosecution and each accused. Similarly, section 21(1)
of the Juries Act 1976 provides that “any number of jurors” may
be challenged for cause shown by any party. Section 21(3) of the 1976 Act
provides that it is for the trial judge to decide, as he or she “shall think
proper”, if the challenge ought to be upheld. Section 21(4) of the 1976 Act
provides that, where the challenge is upheld, the challenged juror shall not be
included in the jury.
3.42
The 1976 Act does not
prescribe in detail the procedure applicable to a challenge for cause.[206]
The challenge must generally be made before the juror has begun to take the
oath, but the judge would appear to have discretion to permit a challenge to be
made if the juror has already started to take the oath.[207]
A challenge for cause cannot be made after the jury has been sworn in, even if
information grounding cause only becomes available at that stage.[208]
3.43
The 1976 Act does not
specify what constitutes “cause” for the purpose of this type of challenge. In
this respect, Walsh states:
“Clearly, this will be satisfied by any of the factors which render the
juror ineligible to serve. Beyond that there is less certainty. Presumably a
juror will be excluded if the party making the challenge is able to put forward
cogent reasons why the juror might not discharge the obligations of jury
service fairly and impartially. This presupposes something more than a subjective
assessment of the juror’s likely attitude to the challenger’s case based on
criteria such as age, sex, social status etc. In order to succeed, it is likely
that the challenger will have to be able to point to matters personal to the
individual which would call into question his or her capacity to function as a
capable and impartial juror in the individual case, as distinct from cases
generally or cases of any particular category.”[209]
3.44
Walsh suggests that
much of the issue turns on the concept of bias:
“The common law authorities suggest that some apparent or actual bias is
necessary in order to challenge a juror successfully. If, for example, a juror
had expressed hostility to one side or other, was related to or had a material
connection with one of the parties or had expressed a wish as to the outcome of
the case it is likely that he or she would be excluded. If a jury member is a
victim of the offence charged against the accused, he or she should clearly be
excluded. It is unlikely, however, that a juror could be challenged
successfully on more objective grounds such as, for example, having a past
criminal record, being the former victim of a similar crime, being related to a
police officer, being a member of a particular ethnic community or having a
particular religious belief. Having prior knowledge of the case may be more
problematic. Generally, the mere fact that a juror has read, heard or seen
previous media coverage of the case will not be sufficient in itself to satisfy
cause. Nevertheless, cause may be shown where the nature of that coverage is
such that it would prevent the juror from trying the case impartially.”[210]
3.45
In some jurisdictions,
it has been held that a sufficient foundation must be laid before a challenge
for cause will be entertained.[211]
This is not the case in Ireland and, indeed, in The People (Attorney
General) v Lehman (No.2)[212]
the Court of Criminal Appeal held that the trial court had acted
appropriately in refusing to permit defence counsel to question each juror on
whether he had read newspaper reports of the proceedings. Similarly, in The
People (Attorney General) v Singer[213]
the Court of Criminal Appeal held that the defendant was not permitted to
question a juror in order to determine whether he was an investor in the
defendant’s investment scheme:[214]
“In the absence of knowledge on the applicant’s part that the juror was
an investor and claimant in the liquidation it is clear he could not have
discovered his incapacity. The trial judge could not allow jurors to be questioned
before challenge with a view to enquiring whether they were investors and
claimants in the liquidation: see The People (Attorney General) v Lehman
(No.2)... Moreover for an accused to challenge for cause without
information and to call the juror as a witness in support of such challenge in
the hope of obtaining proof would amount to an abuse of the process of the
Court.”
3.46
In the Singer case,
it transpired that the foreman of the jury had been an investor in the
defendant’s scheme and the Court of Criminal Appeal overturned the defendant’s
conviction on the basis of the apparent bias of the juror.[215]
3.47
The only information
available to parties as of right, in advance of the potential challenge for
cause being exercised, is the jury panel accessible under section 16(1) of the
1976 Act. The panel includes the names and addresses of panel members as shown
on the Dáil register of electors. The notice accompanying the jury summons asks
the recipient to inform the county registrar of his or her occupation, and
where this information is communicated it is also available to anyone
inspecting the panel list. As Walsh notes:
“Apart from these meagre pieces of information the prosecution and
defence must rely on their own devices to dig up information which they can use
to mount effective challenges to individual panel members.”[216]
3.48
The prosecution has the
advantage of Garda assistance in sourcing such information. In 1978 the
Minister for Justice noted that:
“to enable it to exercise its statutory right of challenge, including
challenge with showing cause, the prosecution may take steps to inform itself
of any matters which it considers relevant to prospective jurors. In practice
this means that the prosecution can look to the Garda Síochána for assistance
in making inquiries.”[217]
3.49
In The People (DPP)
v McCarthy[218] a
juror was challenged for cause based on a claim that a family member of the
juror had a criminal conviction. On appeal, it was argued that some sort of
jury vetting had taken place in order for such information to have been
unearthed. The Court of Criminal Appeal, rejecting this argument, held that the
1976 Act made no provision for jury vetting but that it provided an entitlement
to inspect the panel of jurors by virtue of section 16 of the 1976 Act. The
Court noted that it was not aware of any authorities which would prohibit
reasonable enquiries to be made.
3.50
Notwithstanding this,
the current position is that there is no inherent jurisdiction to permit the
advance questioning of jurors as to their state of knowledge of the accused or
the case in question for the purposes of ascertaining whether a challenge for
cause ought to be exercised.[219] Therefore,
the often lengthy pre-trial challenge procedure in both civil and criminal
trials in the United States is not a feature of jury trials in this country.
3.51
Indeed, in Director
of Public Prosecutions v Haugh[220]
the Director of Public Prosecutions successfully challenged an order made
by the first respondent trial judge concerning a questionnaire which had been
prepared for distribution in the pending trial of an accused with the intention
of determining the influence that pre-trial publicity of the case had had on
candidate jurors. The High Court found that the distribution of such a
questionnaire would constitute an unacceptable interference with the normal
rules concerning jury selection both under the Constitution and within the terms
of the 1976 Act. The High Court held that any potential prejudice amongst
jurors could be dealt with through the provision of appropriate directions by
the trial judge. Walsh has noted that the courts are extremely reluctant to
entertain the argument that there has been so much adverse reporting about a
case or the defendant that it would be impossible to empanel a jury which would
not already have a view on the defendant’s guilt.[221]
3.52
Nevertheless, the trial
judge has an implicit power to put questions to the juror to determine his or
her eligibility or suitability to serve.[222]
Thus, section 35(3) of the 1976 Act provides:
“If any person refuses without reasonable cause or excuse to answer, or
gives an answer known to him to be false in a material particular, or
recklessly gives an answer that is false in a material particular, when
questioned by a judge of the court for the purpose of determining whether that person
is qualified to serve as a juror, he shall be guilty of an offence and shall be
liable in summary conviction to a fine not exceeding €500.”[223]
3.53
Notwithstanding this,
judicial enquiries will not lead to challenges for cause as exercised by the
parties to the case, and it is this mechanism upon which the current section
focuses. In what follows, the Commission examines comparative approaches to the
challenge for cause procedure in order to provide a backdrop against which the
consideration of any reform is then discussed.
3.54
In all parts of the
United Kingdom, both the defence and prosecution may challenge an unlimited
number of jurors for cause, and this process is heard by the presiding judge.[224]
As in Ireland, challenges for cause shown are relatively rare.[225]
Where they occur, the judge
may order that the hearing of a challenge for cause will be held in camera
or in chambers where this is necessary in the interests of justice.[226]
In England and Wales, the defendant is permitted to question the juror
directly, but generally only after he or she has presented prima facie evidence
of the grounds upon which the challenge is to be made.[227]
In Scotland, the questioning of jurors to establish
cause is prohibited and challenges for cause shown are limited to establishing
that the juror is ineligible to serve or otherwise disqualified.[228]
3.55
Legislation permitting challenges for cause is widespread in the United
States.[229] Indeed,
the process of jury challenging in the United States (based in part on
challenges without cause shown and in part on challenges for cause shown)
sometimes involves a lengthy process that includes pre-trial questionnaires and
detailed examination and cross-examination of potential jurors. This process,
usually referred to as scientific jury selection (SJS), includes in some
instances the use of jury consultants, such as psychological “profilers,” who
provide advice based on personal grooming habits, survey responses, facial
tics, attitude and race, among other matters. This process has been used in
highly-publicised criminal trials, in particular where the death penalty is at
issue, and in class-action civil law tort claims where the level of potential
damages may be enormous. The development of SJS has been criticised on the
grounds that it allows parties with virtually unlimited resources an unfair
advantage in terms of jury selection. It has been suggested, however, that the
available literature does not support the widespread view that SJS is as
significant during civil and criminal trials as is commonly believed or that it
has a profound effect on trial outcomes.[230] The Commission notes that the development of SJS appears to be a
particular feature of specific types of criminal and civil trials in the United
States that are not typical of criminal or civil trials in Ireland.
3.56
Challenges for cause are permitted in Canada by section 638 of the
Canadian Criminal Code, and they have been used with greater frequency in
recent years, but there remains disagreement on the scope of permissible
grounds for their use, as well as the scope of permissible questions leading to
their use.[231] In R v
Williams[232] the Supreme Court of Canada held that an accused could
challenge a candidate juror for cause on the ground that the juror was “not
indifferent between the Queen and the accused.” In this case, the accused, an
aboriginal, had not been permitted to challenge candidate jurors on the basis
of potential racial prejudice, in a locality in which there was widespread
antipathy or prejudice towards aboriginals. The Court suggested that the right
to trial by an impartial tribunal was not only a fair trial right, but also a
non-discrimination right.[233]
3.57
All Australian jurisdictions have a system of challenge for cause. The
permitted grounds are: lack of necessary qualifications, personal defects
resulting in incapacity, partiality, having served on a jury in the same
matter, and past conviction for an “infamous,” but not necessarily
disqualifying, crime.[234] Challenges
for cause are rare, since counsel for either side have access to limited, if
any, information about candidate jurors prior to empanelment, and it is
generally considered more convenient to rely on peremptory challenges,[235]
as described above in Part B.
3.58
In New Zealand, the Juries
Act 1981, as amended by the Juries Amendment Act 2008, provides that
jurors may be challenged “for want of qualification” (which is ultimately a
capacity assessment) or “for cause.” Although the procedure is conducted in
private, challenges for cause are rare in New Zealand due to the lack of
information generally available to parties about candidate jurors.
3.59
In its Consultation
Paper, the Commission considered reform of the challenge for cause procedure as
a substitute for the peremptory challenge, and noted that the challenge for
cause shown is difficult to carry out in open court where there is a risk of
juror intimidation.[236] The
Commission also noted that the lack of reliable information regarding candidate
jurors explains the popular use of peremptory challenges, since reasons for the
latter type of challenge are not required.[237]
3.60
The Commission did not
favour introducing pre-trial questionnaires for candidate jurors to provide
information upon which to challenge such individuals and it therefore
provisionally recommended that such a process continue to be prohibited.[238]
3.61
The Commission noted
that while the challenge for cause is seldom used, it continues to serve an
important purpose and the Commission therefore provisionally recommended that
the procedure be retained in its current form.[239]
3.62
The submissions
received by the Commission generally agreed that the current law on challenges
for cause shown ought to be retained, and that juror questionnaires should
continue to be prohibited. This view was reiterated in the further
consultations which the Commission also conducted. The Commission therefore
sees no reason to depart from the views expressed in the Consultation Paper.
3.63
The Commission
recommends that the current law in the Juries Act 1976 on challenges for cause
shown should be retained. The Commission also recommends that pre-trial juror
questionnaires continue to be prohibited.
4
4.01
In this Chapter, the Commission discusses three matters related to the
capacity or competence of potential jurors to carry out their functions as
jurors.[240] In Part B, the Commission discusses
the eligibility of prospective jurors whose physical capacity may require
reasonable accommodation to serve on juries. In Part C, the Commission deals
with candidate jurors whose mental ill-health may affect their competence to
carry out jury duty. The Commission also discusses the separate question as to
whether a person’s decision-making capacity may affect his or her competence in
this respect. In Part D, the Commission examines the issue of linguistic
capacity and communication. In respect of each of these areas, the
Commission notes that one of the guiding principles set out in Chapter 1 of
particular relevance is that, in order to meet the requirements of the Constitution concerning a
fair trial and comparable provisions in international human rights instruments,
jurors should have certain minimum standards of personal capacity and
competence, which may require reasonable support and accommodation that do not
involve a disproportionate or
undue burden.[241]
4.02
In this Part, the
Commission discusses the eligibility of prospective jurors whose physical
capacity may require reasonable accommodation to serve on juries. The
Commission’s discussion focuses primarily on individuals whose capacity may
relate to mobility, hearing or sight.
4.03
Schedule 1, Part 1, of
the Juries Act 1976, as amended by section 64(a) of the Civil Law
(Miscellaneous Provisions) Act 2008, provides, under the heading “Other
people” (which read “Incapable persons” in the 1976 Act as enacted) that the
following persons are ineligible for jury service:
“Persons who have –
(b) an
enduring impairment
such that it is not practicable for them to
perform the duties of a juror.”
4.04
This Part focuses on
paragraph (b), enduring impairment, insofar as it relates to physical capacity.
Prior to the amendment of the 1976 Act by the 2008 Act, the relevant provision
in Schedule 1, Part 1,
of the Juries Act 1976 provided that the following was ineligible: “A
person who because of insufficient capacity to read, deafness or other
permanent infirmity is unfit to serve on a jury.” Thus, the amendment made by
the 2008 Act repealed the specific reference in the 1976 Act to “deafness,”
although this can be taken to be included in the more general phrase “enduring
impairment.” In addition, the 2008 Act replaced the objectionable phrase “is
unfit to serve on a jury” with the somewhat more acceptable phrase “such that
it is not practicable for them to perform the duties of a juror.”
4.05
The use of the word
“practicable” in the 1976 Act, as amended by the 2008 Act, alludes to something
that is feasible or possible, and therefore indicates that a person with some
reading difficulties and some enduring impairments would not necessarily be
precluded from carrying out the duties of a juror; otherwise, the words from
“such that” would be redundant. This raises the issue as to what type of
accommodation, if any, is already provided or might be provided for those who
require assistance or accommodation in carrying out the duties of a juror.
4.06
As to physical
accessibility of public buildings, the Commission notes that section 25(1) of
the Disability Act 2005 provides that “a public body shall ensure
that its public buildings are, as far as practicable, accessible to persons
with disabilities.” In general,[242]
this requires that a building
under the control of a public body, such as a courthouse under the control of
the Courts Service,[243] should, as
far as “practicable” (the same word that is used in the Juries Act 1976),
be physically accessible for members of the public not later than 31 December
2015.[244] This
includes, in general terms, accessibility for potential jurors who are summoned
for jury service. Similarly, in terms of accessibility to a public service,
section 26(1)(a) of the 2005 Act provides that, where a service is provided by
a public body, which includes the courts,[245]
it must “where practicable and appropriate, ensure that the provision of
access to the service by persons with and persons without disabilities is
integrated.” Section 26(1)(b) of the 2005 Act requires the public body “where
practicable and appropriate” to provide for assistance, if requested, to
persons with disabilities in accessing the service if the public body “is
satisfied that such provision is necessary” to ensure compliance with section 26(1)(a) of the 2005 Act. Section
25(2) requires a public body to appoint an access officer for this purpose.[246]
4.07
The Commission is
conscious of the commitment of the Courts Service to ensuring the achievement
of these objectives. In terms of physical accessibility, this includes where
courthouses are refurbished or where entirely new court buildings are
developed. This commitment was underlined in 2010 when the Courts Service
achieved the status of “Ability Company” in the “Environmental Accessibility”
category of the O2 Ability Awards 2010. The award followed an assessment of the Courts
Service on a range of factors including policies relating to disability,
accessibility and organisational commitment, and an examination of the Criminal
Courts of Justice complex in Dublin, which opened in 2010.[247]
4.08
In terms of specific
arrangements, including physical accessibility and service accessibility, the
Commission notes that wheelchair ramps are
provided at the entrances to many courthouses and that signage and contact
details for court offices are in Braille. Similarly, in refurbished
court buildings, members of the public and those with cases before the court
can adapt hearing aids to make use of induction loops which form part of the
public address system in the courtrooms. In addition, wheelchair users can give
evidence in many courthouses at the front of the court beside the witness box.[248]
4.09
In this respect, the Commission notes that the
Courts Service is committed to facilitating physical accessibility for court
users. To that extent, for example, a prospective juror who is also a
wheelchair user would not become ineligible to serve as a juror within the
terms of Schedule 1,
Part 1, of the Juries Act 1976, as amended in 2008, because the
physical accessibility of most courthouse buildings means that it is
“practicable” for a wheelchair user to perform the duties of a juror. For this
reason, basic issues of physical accessibility and other well-established
matters of accessibility to services such as induction loops have not given
rise to controversy in Ireland in recent years,[249] but other aspects of accessibility
related to physical ability have been the subject of recent litigation, notably
in terms of hearing and deafness.
4.10
As to the question of
hearing and deafness, in Clarke v County Registrar for County
Galway[250] the
applicant, who had been deaf since birth, had been summoned for jury service
and wished to serve as a juror. The respondent county registrar had excused her
from jury service in purported exercise of the power to excuse under section 9
of the Juries Act 1976. Section 9(1)(a) of the 1976 Act provides that a
county registrar may excuse from jury service any person who falls within the
category of “persons excusable as of right” in Schedule 1, Part 2 of the 1976
Act,[251] and where
such a person informs the county registrar of his or her wish to be excused.
The applicant sought judicial review of the respondent’s decision to excuse her
from jury service on the ground that the county registrar had acted ultra
vires section 9 of the 1976. In the High Court, O’Keeffe J agreed that the
county registrar had no jurisdiction under the 1976 Act to excuse the applicant
for two reasons: the applicant did not fall within any of the categories of
persons in Schedule 1, Part 2 of the 1976 Act that are excusable from jury
service as of right, and she had not applied to be excused from jury service
(indeed, on the contrary, she had clearly expressed a wish to serve as a
juror). On this basis, he quashed the decision to excuse the applicant from
jury service.
4.11
O’Keeffe J noted that
there is no specific mechanism in the 1976 Act for excusing from jury service
those persons listed in Schedule 1, Part 1 of the 1976 Act who are ineligible
for jury service, but he also stated that “where there is an issue as to the
capacity of the juror to serve it is a matter for the Court to rule on.” In
that respect, O’Keeffe J’s decision to quash the respondent’s excusal of the
applicant from jury service did not indicate that he considered that the
applicant was eligible for jury service. In this respect, it appears to have
been understood that the applicant would have required the assistance of
another person, commonly referred to as the “13th person in the jury
room,”[252] to act as
interpreter of some material in order to serve as a juror, and O’Keeffe J added
that, in his view, the presence of an interpreter would breach the principle of
the secrecy of jury deliberations. O’Keeffe J stated:
“The courts in this country have upheld the principle of the
confidentiality of the deliberations of the jury. In my opinion, there is no
provision in trial by jury as provided for in Article 38 [of the Constitution]
for a person to be present with the jury other than the jurors. Such a presence
would breach the absolute confidentiality of such deliberations and the manner
in which discussions and deliberations take place which is an integral part of
trial by jury. Such confidentiality of jurors in the deliberations of the jury
is also part of the common law. This conclusion applies to the presence of a
sign language interpreter. Furthermore, there is no provision express or
implied in the [1976] Act that a sign language interpreter can assist a person
such as the applicant either at the hearing of the case in open court or when
the jury retire.”
4.12
O’Keeffe J thus
considered that it would not be permissible to have an additional person in the
jury room to assist a deaf juror. A similar view was taken by the Circuit
(Criminal) Court in November 2010 in The People (DPP) v JM
(Application of Owens).[253] In this case, Mr Owens, a person with a profound hearing impairment, had
been summoned for jury service and had been selected by ballot from the jury
panel. Like the applicant in the Clarke case, discussed above, Mr Owens
would have required a sign language interpreter in order to carry out his
functions as a juror. On this basis, Judge White requested him to leave the
jury box because the law did not permit an additional person in the jury room.
Judge White added that, where no interpreter is required, he would have had no
qualms permitting a deaf person to serve as a juror, but that constitutional
questions may be engaged where an interpreter is present. Judge White thus
concluded that it was not practicable, within the meaning of Schedule 1, Part 1
of the 1976 Act, for Mr Owens to perform the duties of a juror due to his
enduring impairment and that, therefore, he was ineligible to serve.
4.13
A materially different
approach was taken in the High Court (Central Criminal Court) later in November
2010 in The People (DPP) v O’Brien (Application of Dunne).[254]
As in the previous two instances discussed above, Mr Dunne had been summoned
for jury service and, arising from his deafness, would have required the
presence of an interpreter to carry out his duties. It was argued on his behalf
that, whereas Schedule 1, Part 1 of the 1976 Act as originally enacted had
amounted, in effect, to a ban on deaf jurors, the amendments made in 2008 to
the 1976 Act (discussed above) had the effect that the issue now was whether it
was “practicable” for a deaf person to serve as a juror. It was argued that,
with the aid of signers and modern technology, jurors could serve without
difficulty. Carney J accepted this argument and, significantly, considered that
the situation in relation to having a 13th person in the jury room
“can be met by an appropriate oath being taken by the signer in which he would
submit himself to the same obligations of confidentiality as rest on the other
jurors.” He added that he would be prepared to have the signer participate in
this case as an interpreter on taking, first of all, the ordinary interpreter’s
oath and then going on to take a further oath in relation to confidentiality.
4.14
Carney J was thus
prepared to allow a deaf person serve on a jury, and would have sworn an
interpreter along the same lines as a juror, though he acknowledged that it had
been intimated to him that if he took this course Mr Dunne would be objected to
by means of a challenge without cause shown (peremptory challenge). Indeed,
immediately after the decision of Carney J, the juror in question was subject
to such a challenge and therefore did not serve. The approach of Carney J
appears to reflect recent developments in some other jurisdictions, which the
Commission discusses below.
4.15
At the time of writing,
the Commission understands that no person with a hearing or sight impairment to
the extent that the person would require signage or other interpretive
assistance has served on a jury in Ireland.
4.16
As the comparative
discussion below indicates, a number of other matters arise in this context
that would require consideration. From a technological point of view, while a
loop system would resolve the issue of hearing evidence for some with a mild
hearing loss, for persons with more profound hearing loss it would be necessary
to have in place a computer-aided real time transcription (CART) system. The
Commission is aware that a CART system is in place in some refurbished
courthouses in Ireland, but not in all courthouses.[255]
A second issue is that, while sign language interpreters are currently engaged
in Irish courtrooms for the purposes of accommodating deaf defendants and
witnesses, Irish Sign Language has no formal status in legislation and that
there is no formal accreditation or registration process for interpreters.[256]
A third matter and an important principle which the Commission has already set
out in Chapter 1, is that the provision of assistance and accommodation,
whether in the form already in place or which might be proposed, must have
regard to the right of a person to a fair trial, in particular the right of the
accused to a fair criminal trial, as provided for in the Constitution and in
international human rights instruments, and to the consequent requirement that jurors
should have certain minimum standards of personal capacity and competence.[257]
4.17
The Commission now
turns to provide a brief comparative and international law analysis of this
matter before outlining the provisional recommendations made in the
Consultation Paper, following which the Commission sets out its final
recommendations.
4.18
In the Consultation
Paper,[258] the
Commission considered the approach in a number of other jurisdictions to the
issue of physical disability and jury service, as well as relevant
international law standards. What follows is a brief review of this, taking
account of developments since the Consultation Paper was published.
4.19
In England and Wales,
section 9B of the Juries Act 1974, as inserted by the Criminal
Justice and Public Order Act 1994, provides that where “on account of a
physical disability” there is doubt as to the capacity of a person to act
effectively as a juror, he or she may be brought before a judge, who must
affirm the summons unless the judge is of the opinion that the person will not,
on account of that disability, “be capable of acting effectively as a juror.”
In Northern Ireland, Article 11(4) and (5) of the Juries (Northern Ireland)
Order 1996 are to the same effect. These provisions are, in general terms,
comparable to the amendments made in 2008 to the Juries Act 1976 and to
that extent, physical disability is no longer an insurmountable obstacle to
jury service. Thus, a person who uses a wheelchair will be facilitated.
Similarly, a person with profound sight loss may serve on a jury, and the
Commission notes that the former British Home Secretary David Blunkett, who has
profound sight loss and who is accompanied by a guide dog, was called for jury
service and served on a jury in England in 2011.[259]
As to a person with profound deafness who would require the presence of a
signer or interpreter the Commission notes that, in the United Kingdom, the
comparable and long-standing rule of jury secrecy is set out in statutory form
in section 8 of the Contempt of Court Act 1981. In that context, in Re Osman[260] it was held that the presence of an interpreter in the
jury room was not permissible, even if the interpreter took no part in the
deliberations; and that the potential juror was (in the absence of an
interpreter) not in a position to carry out his functions effectively and was
therefore ineligible to serve.[261]
4.20
The 2001 Auld Report, Review
of the Criminal Courts of England and Wales, considered the issue of
physical disability and jury service. In terms of physical accessibility to
courtroom buildings under the Disability Discrimination Act 1995 (broadly
equivalent to the Disability Act 2005 in the State), the Auld Report
noted the improvements made and that this accessibility was fully supported by
the Disability Committee of the Bar Council of England and Wales, which had
observed in its submission that “the concept of disabled persons sitting on
juries is wholly consistent with the principle of random selection from all
members of society. Enabling them to do so is not just a question of evaluating
their disability and relating it to the task, but also of providing, where
reasonably practicable, the facilities and/or assistance to them to undertake
it.”[262] The Auld
Report noted the case law such as the Osman case referred to above, and
commented that the Disability Committee of the Bar Council had suggested that
“anxieties about an interpreter intruding on the privacy of the jury room would
be met if he were required to undertake to communicate with the disabled person
and the other jurors only as an interpreter and not to divulge the jurors’
deliberations to any third person.”[263]
The Auld Report acknowledged the “understandable caution” about a 13th
person in the jury room but noted that “accredited interpreters work to agreed
professional standards that should preclude any attempt to intrude on or breach
the confidence of juries’ deliberations.”[264]
The Report noted that, in 2000, the then UK Lord Chancellor (Lord Irvine) had
indicated that he could see no objection to deaf people serving as jurors; and
that, as this matter was then under review by the UK Government, the Auld
Report did not make a specific recommendation on this matter, but stated that
“in principle... all reasonable arrangements, coupled with suitable safeguards,
should be provided to enable people with disabilities to sit as jurors with
third party assistance.”[265] Since,
2001, no change has been made to the relevant legislative provisions but the Commission
notes that the approach suggested in the Auld Report and by the Disability
Committee of the Bar Council of England and Wales is comparable to the approach
taken by Carney J in The People (DPP) v O’Brien (Application of Dunne),[266]
discussed above.
4.21
In New Zealand, the Juries
Act 1981 as enacted had excluded from jury service persons with “blindness,
deafness or other permanent physical disability.” Under section 16AA of
the Juries Act 1981, as amended by the Juries Amendment Act 2000,
individuals lacking physical
capacity are not automatically disqualified from serving, but the judge may on
his or her own motion or on application by the registrar discharge the summons
where the judge is satisfied that, due to physical incapacity, an individual is
not capable of effectively fulfilling the role of a juror. This is very similar
to the provisions in place in the United Kingdom and Ireland and would have
facilitated for jury service those hearing or sight impaired persons who did
not require an interpreter. The New Zealand Sign Language Act
2006 formally recognised New Zealand Sign Language (NZSL) as an official
language and for its use in legal proceedings; and as a result, a deaf man
served as a juror with the aid of an interpreter for the first time in New
Zealand in a tax fraud case (and was selected as foreman by his juror
colleagues).[267]
4.22
In Australia, as in
many other common law jurisdictions, jury service legislation in some of the
states and territories continues to provide that persons with visual and
hearing difficulties are not permitted to serve on juries. This matter has been
subject to review by law commissions in recent years and, arising from this,
amending legislation has been enacted. The New South Wales Law Reform
Commission examined the issue in its 2006 Report on Deaf or Blind Jurors,[268]
and recommended that persons with visual and hearing difficulties should not be
prevented from serving on juries solely on that basis. This recommendation was
implemented in section 14A(b) of the New South Wales Jury Act 1977, as
inserted by the Jury Amendment Act 2010, which provides that a juror may
be excused from jury service if “some disability associated with that person
would render him or her, without reasonable accommodation, unsuitable for or
incapable of effectively serving as a juror.” The reference to “reasonable
accommodation” echoes the language of the 2006 UN Convention on the Rights of
Persons With Disabilities (UNCRPD), discussed below. In 2010, the Law Reform
Commission of Western Australia recommended that a person should not be disqualified
from service on the basis of physical disability alone, but that where that
incapacity renders a person unable to discharge the duties of a juror, this
would constitute sufficient reason to be excused by the summoning officer or
trial judge.[269] This
recommendation was implemented in section 34G(2)(f) of the Western Australia Juries
Act 1957, as inserted by the Juries Legislation Amendment Act 2011,
which provides that a person may be excused from jury service if the court is
satisfied that he or she “is not capable of serving effectively as a juror
because he or she has a physical disability.”
4.23
In Canada, federal law
permits persons with some physical disability to serve on juries, and a number
of provinces follow this approach.[270]
Section 627 of the Criminal Code of Canada provides that a judge may
permit a juror with a physical incapacity who is otherwise qualified to serve
as a juror to have technical, personal, interpretative or other support
services. Section 638(1)(e) of the Criminal Code also provides that a prosecutor or an accused is
entitled to any number of challenges on the ground that a juror, even with the
aid of such support services as are referred to in section 627, is physically
unable to perform properly the duties of a juror.
4.24
In the United States,
the US Supreme Court has described jury service in language that reflects
the approach in Ireland. In Thiel v Southern Pacific Co,[271]
the Court stated that “[j]ury service is a duty as well as a privilege of
citizenship.” Similarly, in Powers v Ohio,[272]
the Court stated that jury service “is an exercise of responsible citizenship
by all members of the community, including those who otherwise might not have
the opportunity to contribute to our civic life.” As to jury service by persons
with disabilities, Title II of the
Americans with Disabilities Act 1990 prohibits state and local courts, as public entities,
from discriminating against jurors who are hard of hearing, and requires them
to take appropriate steps to ensure
that communications with applicants, participants, and members of the public
lacking capacity are as effective as communication with others; and to this end
appropriate auxiliary aids and services are to be furnished where necessary.[273] Before and since 1990, a number of
US states have reformed their jury service legislation to prohibit the
disqualification of a person from jury service exclusively on the basis of a
hearing or visual incapacity.[274]
4.25
This has also been
accompanied by a change in the approach taken in case law on the question of
the presence of a sign-language interpreter in the jury room. In 1978,
in Eckstein v Kirby,[275] a federal
trial court upheld a law excluding deaf or hard of hearing people from jury
service, in part on the grounds that the presence of a sign-language interpreter would
violate the secrecy of the jury room. In 1987, in United States v Dempsey,[276]
a federal US Court of Appeals took a different approach. In this case, the
defendant had challenged a deaf juror for cause, but the trial court held that
the juror was eligible to serve and allowed an interpreter to be present during
jury deliberations. The trial court required the interpreter to swear an oath
promising to serve strictly as an interpreter and not to participate in the
jury deliberations. The defendant was convicted and, on appeal, the Court held
that the presence of the interpreter in the jury room had not interfered with
the secrecy of the jury. The Court noted that the trial court had protected
against the risk that the interpreter might unlawfully participate in the jury
discussion by requiring him to take an oath not to disclose any confidential
information entrusted to him and not to discuss the testimony or the merits of
the case under any circumstances with anyone, including the juror for whom he
was appointed. The Court also pointed out that interpreters had become
commonplace in today’s society and would be seen as part of the background, not
as another participant.[277] The
nuanced nature of US case law can be seen in the 2010 decision of the Ohio Supreme
Court in State v Speer.[278]
In this case, the Court held that it was proper to dismiss a deaf juror when
the trial relied heavily upon a recorded emergency call. In addition to
assessing the words and the emotions of the caller, which the Court held that
an interpreter could convey, the jurors in this case were required to decide
whether the caller sounded as if he was under the influence of alcohol or if
his tone otherwise conveyed evidence of his guilt. Given the role that auditory
information played in the case, the Court concluded that a deaf person could
not serve as a juror in this specific instance.
4.26
The increasing number
of deaf jurors in the United States, and the consequent use of sign-language
interpreters, has also led to the development of detailed codes of professional
conduct with which the interpreters must comply. The leading example of such a
code is that developed by the US National Association of the Deaf (NAD)
and the US Registry of Interpreters for the Deaf (RID), the NAD-RID Code of Professional
Conduct.[279]
4.27
Article 13 of the 2006 UN Convention on the
Rights of Persons with Disabilities (“UNCRPD”), which, at the time of writing,
Ireland has signed but not ratified, provides that States Parties are required
to ensure effective access to justice for persons with disabilities on an equal
basis with others. The UNCRPD defines reasonable accommodation as: “necessary
and appropriate modification and adjustments not imposing a disproportionate or
undue burden, where needed in a particular case, to ensure to persons with
disabilities the enjoyment or exercise on an equal basis with others of all
human rights and fundamental freedoms.”[280] In Chapter
1, the Commission noted that one of the guiding principles relevant to this
Report is that, in order to meet the requirements of the Constitution concerning a fair trial and comparable
provisions in international human rights instruments, jurors should have
certain minimum standards of personal capacity and competence, which may
require reasonable support and accommodation that do not involve a disproportionate or undue burden.[281]
4.28
In the Consultation
Paper the Commission provisionally recommended that: (i) the Juries
Act 1976 be amended to ensure that no person is prohibited from jury
service on the basis of physical disability alone and that capacity be
recognised as the only appropriate requirement for jury service, and that it
should be open to the trial judge ultimately to make this decision having
regard to the nature of the evidence that will be presented during the trial;[282]
(ii) reasonable accommodation be provided to hearing and visually impaired
jurors to assist them in undertaking the duties of a juror;[283]
(iii) a proper system for regulation and control of court interpreters be
established;[284] (iv) an
oath should be introduced applicable to interpreters and stenographers who
assist deaf jurors in interpreting evidence at trial, which would include a
commitment to uphold the secrecy of jury deliberations;[285]
(v) the Courts Service should prepare guidelines for the reasonable
accommodation of persons with physical disabilities to participate in the jury
system;[286] (vi) the
Courts Service should provide disability awareness training to Courts Service
personnel dealing with jurors with disabilities;[287]
and (vii) a physical disability should not be a basis for excusal from jury
service as of right but where a lack of capacity is indicated such excusal
should be given.[288]
4.29
During consultation,
the importance of facilitating individuals with physical mobility difficulties
was emphasised. The Criminal Courts of Justice complex in Dublin which, as
already noted, opened in 2010 provides universal access for persons with
mobility difficulties entering the courthouse as well as the jury box specifically.
In other courts throughout the country, these facilities are being implemented
on a phased basis.
4.30
On the question of
individuals with hearing difficulties serving on juries, there was general
agreement that the presence of a CART operator or sign language interpreter
would represent a major change to the jury system. Consultees agreed
that, with technological supports, the translation of documentary evidence for
blind jurors would not pose significant difficulties, but it was suggested that
a difficulty arises where charts, photographs or CCTV footage might be
introduced as evidence.
4.31
A number of consultees suggested that both blind and deaf individuals
may be capable of contributing to the discussion in ways that hearing and
sighted individuals would not. Other submissions emphasised the importance of observing witness demeanour (an
issue for persons with sight difficulty) or tone of voice (an issue for persons
with hearing difficulty) in comprehensively and accurately assessing evidence,
and suggested that further consideration ought to be given to the question on
the basis that deaf or blind jurors could defer to other jurors in relation to
issues of demeanour and visual evidence.
4.32
Some submissions doubted
the utility of an oath for stenographers and interpreters. Others argued
that there is no reason why there should be a blanket ban on allowing a 13th
person, in the form of a sign language interpreter, to enter the jury
deliberation room. Some consultees
suggested that interpretation or transcriptions might not be entirely accurate
and that a 13th person in the jury room might influence the decision of the
jury. Some suggested that the standards for sign language interpreting
in Ireland are very high, but it was acknowledged that a standardised system of
accreditation does not exist at present. It was noted that a sign language
interpreter would be required all of the time, and not just in the deliberation
room, which could leave the interpreter marginalised in terms of matters
discussed between jurors outside of the deliberation room. It was also pointed
out that best practice standards would require the presence of not just one
interpreter but 2 to 3 interpreters at a time; that is, not merely a 13th
person in the jury room but more often also a 14th or 15th
person (though not necessarily at the same time).
4.33
Having considered the
matter in preparing this Report, the Commission is of the view that, as a
matter of general principle, it is important to ensure as far as practicable
the participation in society of individuals with physical disability. This
reflects long-standing policy in this area and is already recognised in, for
example, the Disability Act 2005. The Commission also fully supports the
integration of persons with disabilities in society based on (a) a presumption
of capacity, and (b) reasonable support and accommodation. This approach
derives from the Commission’s general approach in the 2006 Report on
Vulnerable Adults and the Law[289]
and the Commission understands that this is likely to be reflected in the
proposed Assisted Decision-Making (Capacity) Bill, scheduled to be
published in 2013, which is intended to implement the key elements of that 2006
Report and which also involves a key component of the State’s stated intention
to ratify the 2006 UNCRPD.
4.34
The Commission notes
that, in the specific context of jury service, the amendments made in 2008 to
the Juries Act 1976 have involved an important step in the direction of
providing that persons with a physical disability are not completely prohibited
from jury service. In that respect, the improvements in the physical
accessibility of courthouses in Ireland – in accordance with the duty to do so
in the Disability Act 2005 which must be implemented by the end of 2015
– are consistent with these amendments to the Juries Act 1976. Nonetheless,
the Commission considers that it would be more consistent with general policy,
with best practice examples on jury service from other jurisdictions already
discussed, and with the 2006 UNCRPD, to provide expressly that capacity
to serve be recognised as the appropriate requirement for jury service, and
that it should be open to the trial judge ultimately to determine this having
regard to the nature of the evidence that will be presented during the trial.
4.35
Equally, however, the
Commission considers that the involvement of jurors with disabilities must be
considered in the context of the role of jury trial, in particular as a
mechanism within the framework of the criminal justice system. The Commission
has emphasised in its summary in Chapter 1 of the relevant principles that the
right to a fair trial, as guaranteed by the Constitution and by relevant
international human rights instruments, includes the right to be tried by a
jury whose members are of personal capacity and competence. This involves being
competent to assess in full the evidence presented. As the case law discussed
above indicates, this may require case-by-case analysis, even in those
jurisdictions such as the United States where deaf jurors and interpreters have
been a feature of the legal landscape for some time. The Commission is
conscious that the participation of persons with disabilities in a jury has
required, and will continue to require, the provision of physical
accessibility, such as wheelchair ramps, and other reasonable accommodation
such as induction loops, that make participation practicable and achievable.
The Commission fully supports these developments.
4.36
The Commission
considers that it is equally important to emphasise that if there is a conflict
between the accommodation of a prospective juror and the right to a fair trial,
the fairness of a trial must be given priority. The Commission also reiterates
two other guiding principles from Chapter 1: that jury service is more
accurately described as a duty which falls upon members of the population of
the State rather than as a right of an individual in the State; and that the
jury should be free to consider their verdict in secrecy in the sense that they
do so without the intervention or presence of the judge or any other person
during their deliberations (but this does not preclude certain disclosures, for
example, inappropriate behaviour in the jury room).
4.37
In the specific context
of the need for those with extensive hearing or sight disability to be
accommodated with sign or language interpreters, the Commission notes that this
also involves consideration of two specific matters. Firstly, the Commission
acknowledges that there has been a difference of opinion expressed in the High
Court decisions discussed above as to whether the presence of a 13th
person (or, possibly, more) in the jury room would be permissible. The
Commission accepts that Carney J’s view that a specific oath for interpreters
would overcome any difficulties reflects the approach taken in those
jurisdictions where deaf jurors have been a feature of jury trials, notably the
United States but also in other jurisdictions discussed above. The Commission
notes that there was no consensus on this matter in the submissions received or
in the views of consultees with whom the Commission further consulted. A
second, related, matter is that the Supreme Court has placed emphasis on the
importance of witness demeanour being visible to a trier of fact, including a
jury. [290] The importance of tone of voice,
and the assessment of audio evidence by the jury pose challenges in the case of
deaf jurors. In the case of blind jurors, the importance of witness demeanour
and the jury’s assessment of crime scene video evidence, photographic evidence,
and jury views are also highly relevant. The Commission accepts that not all of
these issues arise in all trials, but it underlines the case-by-case problems
that are posed.
4.38
The Commission considers that once in court
prospective jurors may identify themselves to the court where they consider
their capacity raises the question of carrying out the duties of a juror in the
specific case. This could be reinforced by the development of guidance which
would include discussion of the importance that jurors are able to understand and
follow the evidence that may be presented and that individuals who have
concerns about their capacity to follow and assess the evidence should make
themselves known, in a confidential fashion, to the court registrar or to the
judge.
4.39
The Commission
recommends that the court registrar or judge may excuse a candidate juror who
has identified himself or herself as unable to sit as a juror on that occasion.
Such jurors would have an absolute entitlement to be excused based on the fact
that they are the best person to assess their own capacity to understand and
follow the evidence. In cases where a juror wishes to serve but is unsure of
his or her eligibility, or where the registrar or judge considers that this may
arise, the judge should carry out a brief and confidential exchange to arrive
at a decision on this matter. In making this decision, the judge should apply
the presumption of capacity as well as the requirement of juror competence to
ensure the right to a trial in due course of law. The Commission also considers
that the judge should make it clear to the jury through an instruction that it
is both their entitlement and responsibility to inform the judge where a
question of capacity regarding another juror arises. Where the judge considers
that, even with reasonable and practicable accommodation, a juror will not be
capable of carrying out their duties as a juror, the judge should excuse the
prospective juror as ineligible to serve.
4.40
The Commission also
considers in this context that it would be appropriate that the further
research on jury service recommended in Chapter 11 of this Report, below,
should include research into permissible and practicable supports and
accommodation for this purpose, based on international best practice and
experience. The Commission notes that, in the specific context of potential
jurors with hearing or sight difficulties, there is as yet no system of formal
accreditation of Irish sign language interpreters or CART operators in the
State. Nonetheless, it is clear from discussions with interested parties that
considerable work is ongoing to develop best practice codes of conduct and
standards for Irish sign language interpreters and CART operators. The
Commission considers that, at this stage of the development of such codes and
standards, it is not possible to make a definitive recommendation on this
matter. The Commission notes that there are considerable difficulties, both in
terms of the potential, or perceived, unfairness of a trial that involves a 13th
person (or more) in the jury room, and also the practical working out of such a
system were it to be introduced. The Commission notes that in some of the
jurisdictions surveyed in this Report such codes, standards and practical
arrangements have been introduced and appear to work satisfactorily at least in
some trials. The Commission has concluded that such a development would require
considerable exploration of the relevant legal and practical challenges, and
that this would best be done through a dedicated research project as part of
the general research recommended in Chapter 11. This would take into account
developing codes, standards and practical experience from other jurisdictions
as discussed above in this Chapter, and would then determine whether it would
be feasible to apply these in the context of the jury system in Ireland.
4.41
The Commission
recommends that the current provisions of the Juries 1976, which provide that
persons are ineligible to serve as jurors if they have an enduring impairment
such that it is not practicable for them to perform the duties of a juror,
should be replaced with a provision to the effect that a person is eligible for
jury service unless the person’s physical capacity, taking account of the provision
of such reasonably practicable supports and accommodation that are consistent
with the right to a trial in due course of law, is such that he or she could
not perform the duties of a juror.
4.42
The Commission
recommends that the application of this provision should not involve an
individual assessment of capacity. The Commission also recommends that the
provision should be supplemented by guidance which would remind jurors in
general of the requirements of eligibility for jury service, which should be
expressed in a manner that encourages those with any doubts as to their
physical capacity to carry out the functions of a juror to identify themselves.
In making this decision, the judge should apply the presumption of capacity as
well as the requirement of juror competence that forms part of the right to a
trial in due course of law. The guidance should also make it clear to jurors
that it is both their entitlement and responsibility to inform the court where
a question of capacity regarding another juror arises. The Commission also
recommends that if there is a conflict between the accommodation of a
prospective juror in accordance with the 2006 UN Convention on the Rights of
Persons With Disabilities and the right to a fair trial, the fairness of a
trial must be given priority. The Commission recommends that where the judge
considers that, even with reasonable and practicable accommodation, a juror
will not be capable of carrying out their duties as a juror, the judge should
excuse the prospective juror as ineligible to serve. The Commission also
recommends that a physical disability that may require accommodation or support
may constitute “good cause” for the purposes of an application for “excusal for
cause.”
4.43
The Commission
recommends that the Disability Act 2005 should include express recognition for
the provision of physical accessibility, such as wheelchair ramps and other
reasonable accommodation such as induction loops, that make participation by
persons with disabilities in a jury practicable and achievable.
4.44
The Commission
recommends that, as to physical disability, it would be appropriate that the
research on jury service recommended in paragraph 11.18 of this Report should
include research into permissible and practicable supports and accommodation
for this purpose, based on international best practice and experience. The Commission also recommends
that, in the specific context of potential jurors with hearing or sight
difficulties, a dedicated research project should be developed that takes full
account of the ongoing development of best practice codes of conduct and
standards for Irish sign language interpreters and CART operators, and that
also has regard, where relevant, to the potential that the presence of a 13th
person (or more) in the jury room may have an impact on the fairness of a
trial. This research project would take into account developing codes,
standards and practical experience from other jurisdictions, and would then
determine whether it would be feasible to apply these in the context of the
jury system in Ireland.
4.45
In this Part the
Commission deals with prospective jurors whose mental health may affect their
competence to carry out jury duty. The Commission also discusses the separate
question as to whether a person’s intellectual, decision-making, capacity may
affect his or her competence in this respect.
4.46
Schedule 1, Part 1 of
the Juries Act 1976 provides that:
“A person who suffers or has suffered from
mental illness or mental disability and on account of that condition either –
(b) regularly attends for treatment
by a medical practitioner
is ineligible for jury service.”
4.47
The 1976 Act does not
define mental illness or mental disability, although it is clear that the test
of ineligibility for jury service is not merely that a person has a mental
illness or mental disability; rather, that the person’s condition has resulted
in him or her being resident in a hospital or other similar institution or
regularly attends for treatment by a medical practitioner. The Commission also
notes that the 1976 Act appears, by using the singular “that condition,” to
conflate mental illness and mental disability; it is clear that these are quite
separate matters and should be considered separately, and the Commission
proceeds to do so in this Part.
4.48
In England and Wales,
Schedule 1, Part 1 of the Juries Act 1974 as originally enacted provides
that an individual is ineligible to serve as a juror where he or she suffers or
has suffered from a mental illness, psychopathic disorder, mental handicap or
severe mental handicap and on account of that condition either (a) is resident
in a hospital or other similar institution; or (b) regularly attends for
treatment by a medical practitioner. In this respect, it is clear that the
English 1974 Act was the basis for the comparable provisions in the Juries
Act 1976, although the 1974 Act provided that the terms used, such as
mental handicap or severe mental handicap, were to be interpreted in accordance
with the English Mental Health Act 1959, the relevant legislation at
that time providing for involuntary commitment of persons to hospital arising
from mental ill-health. In 2001, the Auld Report recommended that the 1974 Act
should not be amended to alter the ineligibility of this category of persons;
this can be contrasted with the Auld Report’s recommendations, discussed above,
that the 1974 Act should be amended concerning physical disability. Since 2001,
these provisions of the 1974 Act have been amended, but these have been limited
to (a) adding further detailed provisions concerning persons with mental
ill-health who are ineligible and updating the references to relevant mental
health legislation and (b) providing for the first explicit distinction between
mental ill-health and mental capacity. Thus, the Criminal Justice Act 2003 added
that a person in guardianship under the Mental Health Act 1983 (which
replaced the Mental Health Act 1959) was ineligible for jury service.
The 2003 Act had also added a third category, those who have been determined by
a judge under the 1983 Act to be incapable, by reason of mental incapacity, of
managing and administering his or her property and affairs. The Mental
Capacity Act 2005 replaced this third category and amended the relevant
provision in the 1974 act to provide that the following person is ineligible
for jury service: “A person who lacks capacity, within the meaning of the
Mental Capacity Act 2005.” The Commission notes that the heading for Schedule
1, Part 1 of the 1974 Act, which originally read “The mentally ill,” was
changed to “Mentally Disordered Persons” by the 2003 Act but was not further
changed by the 2005 Act.
4.49
Australian
jurisdictions exclude from jury service people lacking mental capacity where
the incapacity renders the person incapable, unable or unfit to perform the
functions of a juror.[291] The mental
impairment caught by the legislation of the various jurisdictions can range
from short-term anxiety or depression, to long-term psychological disorders and
includes cognitive deficits such as those caused by intellectual disability,
brain injury, dementia, or the like.
4.50
Section 8(i) of the New
Zealand Juries Act 1981 provided that persons with “mental disorders”
could not serve as jurors, and section 8(k) of the 1981 Act provides that
person with “intellectual disabilities” are ineligible for service. In 2008,
the New Zealand Government published its Disability (United
Nations Convention on the Rights of Persons With Disabilities) Bill 2008
which, as its title indicates, proposed to amend a wide range of New Zealand
legislation in order to
implement the 2006 UN Convention on the Rights of Persons with Disabilities
(UNCRPD). The Bill proposed to repeal section 8(i) of the 1981 Act and to
retain section 8(k) of the 1981 Act. The New Zealand Parliament’s Justice and
Electoral Committee’s review of the 2008 Bill, which approved these proposals,
noted that “the definition of mental disorder [in the 1981 Act] is overly broad
and includes mood disorders no matter how severe their effect.” The
Committee also noted that the Bill proposed to continue to allow excusal from
jury service on the basis of intellectual disability.[292]
Thus, section 5 of the New Zealand Disability (United Nations
Convention on the Rights of Persons With Disabilities) Act 2008 repealed
section 8(i) of the 1981 Act
and retained section 8(k) of the 1981 Act.
4.51
In the Consultation
Paper the Commission emphasised the importance of juror competence in ensuring
the right to a fair trial for the accused and in this light recommended that
persons with an intellectual incapacity should continue to be ineligible for
jury service.[293]
4.52
With a similar emphasis
being placed on the significance of competence, the Commission provisionally
recommended that impaired mental health should not automatically exclude
persons from jury service, but rather that persons believing themselves to be
incapacitated by such impairment should apply for an excusal.
4.53
Some consultees suggested that the ideal would be a situation in which
individuals were presumed to have capacity and, where necessary, assessed on a
case-by-case basis and provided with reasonable accommodation. It was accepted,
however, that this leads to very complex practical questions, and would also be
subject to adequate resourcing.
4.54
In general, it was agreed that a functional approach avoids the
tendency to categorisation inherent in a status-based approach. It was
suggested by some that a system of self-assessment could be introduced, in
which the necessary skills to undertake the functions of a jury, and the duties
of the juror, are outlined in brief, and anybody considering themselves not to
meet this standard would apply to the Courts Service for an excusal.
4.55
The Commission notes
that the Government’s Assisted Decision-Making (Capacity) Bill, due to
be published in 2013, is likely to contain a general statutory principle that
persons aged 18 and upwards are presumed, unless the contrary is established,
to have decision-making capacity; and that the Bill will also provide that
capacity should be based on a functional test of whether the person understands
the nature and consequences of the decision at the time it is being made. The
Commission also notes that the Government’s General Scheme of a Capacity Bill,
which was published in 2008 and which is likely to influence the content of the
2013 Bill, stated (in Head 20) that the general principles on capacity in the
Bill would not affect the law concerning the capacity required of a person when
“acting as a member of a jury”. The Commission also reiterates the principle,
as outlined in Chapter 1, that the right to a fair trial in the Constitution
requires that jury members have the capacity and competence to carry out their
decision-making functions and that capacity and competence is an individual,
rather than group, attribute. In this respect the Commission has concluded
that, subject to appropriate reformulation, the current restrictions on those
whose ill health or decision-making capacity prevent them from carrying out the
functions of a juror should be retained.
4.56
The Commission
emphasises in this respect that is important to differentiate clearly between,
on the one hand, ill-health and, on the other hand, decision-making capacity,
and that this should be reflected in the legislation on jury service. The
Commission notes that the current provisions in the Juries Act 1976 fail
to distinguish between ill health and decision-making capacity.
4.57
Having considered this
matter, the Commission has concluded that, as to mental health, the test for
ineligibility in the Juries Act 1976 should be reformulated to provide
that the following person is ineligible to serve as a juror: a person whose ill
health means that he or she is resident in a hospital or other similar health
care facility or whose ill health means that he or she could not perform the
duties of a juror. As to decision-making capacity, the Commission has concluded
that the test for ineligibility in the Juries Act 1976 should be
reformulated to provide that the following person is ineligible to serve as a
juror: excuse individuals “whose capacity, with permissible and practicable
supports and accommodation, would be such that he or she could not perform the
duties of a juror.”
4.58
Having considered this
matter, the Commission has concluded that, as to mental health, the test for
ineligibility in the Juries Act 1976 should be reformulated to provide
that a person is eligible for jury service unless, arising from the person’s
ill health, he or she is resident in a hospital or other similar health care
facility or is otherwise (with permissible and practicable assisted
decision-making supports and accommodation that are consistent with the right
to a trial in due course of law) unable to perform the duties of a juror. As to
decision-making capacity, the Commission has concluded that the test for
ineligibility in the Juries Act 1976 should be reformulated to provide
that a person is eligible for jury service unless his or her decision-making
capacity, with permissible and practicable assisted decision-making supports
and accommodation that are consistent with the right to a trial in due course
of law, would be such that he or she could not perform the duties of a juror.
The Commission also considers that the relevant procedural and research issues
identified in the context of physical disability, discussed above, should also
apply (subject to suitable adaptation) to ineligibility and excusal arising
from ill health and decision-making capacity.
4.59
The Commission
recommends that, as to mental health, the test for ineligibility in the Juries
Act 1976 should be reformulated to provide that a person is eligible for jury
service unless, arising from the person’s ill health, he or she is resident in
a hospital or other similar health care facility or is otherwise (with permissible
and practicable assisted decision-making supports and accommodation that are
consistent with the right to a trial in due course of law) unable to perform
the duties of a juror. The Commission recommends that, as to decision-making
capacity, the test for ineligibility in the Juries Act 1976 should be
reformulated to provide that a person is eligible for jury service unless his
or her decision-making capacity, with permissible and practicable assisted
decision-making supports and accommodation that are consistent with the right
to a trial in due course of law, would be such that he or she could not perform
the duties of a juror.
4.60
The Commission
recommends that the application of this provision should not involve an
individual assessment of capacity. The Commission also recommends that the
provision should be supplemented by guidance which would remind jurors in
general of the requirements of eligibility for jury service, which should be
expressed in a manner that encourages those with any doubts, arising from their
ill health or decision-making capacity, about being able to carry out the
functions of a juror to identify themselves. In making this decision, the judge
should apply the presumption of capacity as well as the requirement of juror
competence that forms part of the right to a trial in due course of law. The
guidance should also make it clear to jurors that it is both their entitlement
and responsibility to inform the court where a question of capacity regarding
another juror arises. The Commission also recommends that if there is a
conflict between the accommodation of a prospective juror in accordance with
the 2006 UN Convention on the Rights of Persons With Disabilities and the right
to a fair trial, the fairness of a trial must be given priority. The Commission
recommends that where the judge considers that, even with reasonable and
practicable accommodation, a juror will not be capable of carrying out their
duties as a juror arising from ill health or decision-making capacity, the
judge should excuse the prospective juror as ineligible to serve. The
Commission also recommends that ill health or decision-making capacity that may
require accommodation or support may constitute “good cause” for the purposes
of an application for “excusal for cause.”
4.61
The Commission
recommends that it would be appropriate that the research on jury service
recommended in paragraph 11.18 of this Report should include research into
permissible and practicable supports and accommodation in connection with
health and decision-making capacity, based on international best practice and
experience.
4.62
Schedule 1, Part 1, of
the Juries Act 1976, as amended by section 64(a) of the Civil Law
(Miscellaneous Provisions) Act 2008, provides (under the heading “Other
people”) that the following persons are ineligible for jury service:
“Persons who have –
(b) an
enduring impairment
such that it is not practicable for them to
perform the duties of a juror.”
4.63
This Part focuses on
paragraph (a), that is, incapacity to read. Prior to the amendment of the 1976
Act by the 2008 Act, the relevant provision in Schedule 1, Part 1, of the Juries Act 1976 provided
that the following (under the heading “Incapable persons”) was ineligible: “A
person who because of insufficient capacity to read... is unfit to serve on a
jury.” The 2008 Act replaced the phrase “is unfit to serve on a jury” with the
somewhat more acceptable phrase “such that it is not practicable for them to
perform the duties of a juror.”
4.64
The 1976 Act, as
amended, clearly sets a form of reading literacy threshold that is not general
in nature but rather is specific to performing the duties of a juror. In that
respect, the test of capacity or competence is a “functional test” in the sense
used by the Commission in its 2006 Report on Vulnerable Adults and the Law,[294]
namely, that it is specific to the particular decision or activity to which
it relates. The 2006 Report recommended that this functional approach to
capacity, and a general presumption of capacity, should be included in the
adult capacity legislation which it recommended should be enacted. As noted
above, the proposed Assisted Decision-Making (Capacity) Bill (scheduled
to be published in 2013) is intended to implement the key elements of that 2006
Report also involves a key component of the State’s stated intention to ratify
the 2006 UN Convention on the Rights of Persons With Disabilities.
4.65
The Commission also
notes that the use of the word “practicable” in the 1976 Act, as amended by the
2008 Act, alludes to something that is feasible or possible, and therefore
indicates that a person with some reading difficulties would not necessarily be
precluded from carrying out the duties of a juror; otherwise, the words from
“such that” would be redundant. This raises the issue as to what type of
accommodation, if any, is already provided or might be provided for those who
require assistance or accommodation in carrying out the duties of a juror.
4.66
Section 36 of the 1976
Act provides that a person commits an offence if he or she serves on a jury
knowing that he or she is ineligible for jury service. The jury summons on foot
of which a person attends for jury service draws the potential juror’s
attention to section 36 of the 1976 Act and, while the Commission recognises
that a person who has profound inability to read may not be fully aware of this
provision the 1976 Act imposes a general duty to disclose any ineligibility
when the jury is being selected.
4.67
The Commission is aware
from its consultation process and further discussion with interested parties
that the Courts Service does not carry out any literacy test of potential
jurors. In practice, the issue is dealt with in the same way that other grounds
of ineligibility are, namely, it is assumed that a juror will act in accordance
with the summons and, if ineligible for jury service, will disclose that fact.
Consultees also noted that some comprehension difficulties are often identified
when a person repeats, or attempts to repeat, the juror’s oath in court. This
is then dealt with in a sensitive and informal manner where the potential juror
is reminded of the requirements of the 1976 Act.
4.68
There is no requirement
under the 1976 Act that jurors be fluent in English, which is the language used
in the vast majority of trials conducted in Ireland.
4.69
The Commission acknowledges that in certain
cases literacy is an important requirement for jurors when assessing
documentary evidence and other written materials. Written evidence and visual
aids (in written form) are becoming more regular features of contemporary
trials, which also often involve complex scientific and financial information.
The Commission notes that the National Adult Literacy Agency (NALA)
has pointed out that up to 25%
of Irish adults have literacy difficulties, which can arise from problems
experienced during the education process, some of which are connected to
learning disabilities such as dyslexia or dyspraxia.[295] The Commission also recognises that
language fluency is an important component of a juror’s comprehension of both
written and verbal evidence, which also continues to be a key feature of
trials.
4.70
The Commission
considered a number of comparative approaches to this issue in the Consultation
Paper, a brief overview of which is provided here.[296]
4.71
In England and Wales, the 1965 Report of the
Departmental Committee on Jury Service considered a number of proposals
calling for educational, intelligence or literacy tests as a requirement for
inclusion on the list for jury service.[297] The Committee rejected these
proposals but did recommend that persons who found it difficult to read, write,
speak or understand English should not be eligible for jury service. Section 10 of the Juries Act 1974 provides
that where it appears to the appropriate officer that there is doubt as to the
capacity of an individual to act effectively as a juror on account of an
“insufficient understanding of English,” that individual may be brought before the
judge who will determine whether or not the individual should be discharged. The 1986 Fraud Trials Committee
Report (the Roskill Report) considered that that the term “insufficient
understanding of English” in the 1974 Act did not sufficiently meet the
recommendations of the 1965 Report as to literacy.[298]
4.72
The English 2001 Auld
Review Report also considered the issue of literacy of jurors.[299] The Report acknowledged that
imposing a literacy qualification for jury service resulted in excluding “a
significant section of the community who, despite that inability, have much to
contribute to the broad range of experience and common-sense that is required
in a jury.”[300] The Report also accepted that it
was becoming increasingly necessary for jurors to have a reasonable grasp of
written English, that the simplest of cases normally involved exhibited
documents and that it was necessary for jurors to be able to understand these.
The Report recommended increased use of visual aids and written summaries of
the issues, and that there should be a procedure for ensuring that only
literate persons were selected for fraud trials or any case that involved
critical documentary evidence.[301]
4.73
The Auld Review
considered that the present system of leaving the judge as the final filter
during the process of jury selection to identify illiterate jurors was
“probably the best that can be achieved. By then the nature of the case for
trial and its likely demands on the literacy of potential jurors can be
assessed.” It also considered that the trial judge should give the panel of
potential jurors an ample and sensitively expressed warning of what the case
would entail, and provide jurors with a way in which they could seek excusal
without causing them embarrassment. It also considered that as “a very last
resort, there is always the option for the prosecution to ‘stand by’ a
potential juror who clearly has difficulty, when being sworn, in reading the
oath.”[302]
4.74
In Australia every
state and territory has a statutory language requirement in place, although the
formulation of the test for eligibility varies between jurisdictions.[303]
The New South Wales Law Reform Commission considered that non-nationals
acquiring Australian citizenship coming from communities adopting a different alphabet or writing style, may be able
to speak and communicate in English but have only a limited ability to read.[304]
As such it was considered that a general restriction on persons unable to read
may be undesirable. The Law Reform Commission of Western Australia agreed with
this approach and considered that a literacy requirement that applied across
the board would be undesirable, as it would exclude a section of people from
jury service that would be capable of discharging the duties of a juror.[305]
It considered that in circumstances where written aids were provided it would
be possible for another juror to read out relevant parts of the material to
other jurors if necessary and that in trials involving a significant amount of
written evidence it would be necessary for jurors to be able to read.
4.75
The Law Reform Commission of Western Australia also considered that the
informal procedures used by court staff in identifying persons with
communication and comprehension difficulties were subjective. It proposed that
the courts should develop a set of guidelines with standardised procedures and questions
to assist in the assessment of the English language ability so that candidate
jurors were only excluded from jury service when absolutely necessary.[306]
4.76
In New Zealand, under
section 16AA of the Juries Act 1981, a judge may, on his or her own
motion or on application by the court registrar, discharge the summons of a
person if the judge is satisfied that, because of difficulties in understanding
or communicating in the English language, the person is not capable of acting
effectively as a juror. Candidate
jurors are instructed in the jury booklet and introductory video for jurors to
advise court staff if they are unable to understand English.[307] Research conducted for the New
Zealand Law Commission’s review of the jury system indicated that despite these
steps to indentify persons with comprehension issues, jurors were selected for
jury service who had difficulty in understanding evidence as English was their
second language.[308] The New Zealand Law Commission was
of the opinion that an additional screening process was desirable but
impracticable. The Commission did, however, recommend that when a jury retires
to select a foreman the trial judge should direct the jurors to talk amongst
themselves to ensure that they are all able to speak and understand English. It
also recommended that in circumstances where it appeared that a juror was
unable to do so the trial judge should be advised of the fact. It acknowledged
that this recommendation may be considered problematic in that it places a
burden on jurors to identify their peers as lacking linguistic competency and
that some jurors may feel uneasy with this and be reluctant to do so. In
addition, a person may be reluctant to identify such a person fearing that they
will be opening themselves to an accusation of racism or bias.
4.77
The New Zealand Law
Commission noted that, as over a million New Zealand adults fell below the
minimal level of English literacy competence required to meet the demands of
everyday life and 20% of adults had “very poor” literacy skills, a significant
number of people would not pass a juror literacy test.[309] The Commission therefore did not
recommend the introduction of a literacy test as it considered that this would
cause considerable administrative difficulties and that the level of literacy
that would be required of a juror would vary from case to case depending on the
amount of written evidence involved in a trial.[310]
4.78
Section 638(f) of the
Criminal Code of Canada provides that a prosecutor or accused is entitled to an
unlimited number of challenges for cause on the ground that a juror does not
speak the official language of Canada that is the language of the accused or
the official language of Canada in which the accused can best give testimony.
4.79
Article 13 of the 2006
UN Convention on the Rights of Persons with Disabilities (“UNCRPD”), which, at
the time of writing, Ireland has signed but not ratified, provides that States
Parties are required to ensure effective access to justice for persons with
disabilities on an equal basis with others. The UNCRPD defines reasonable
accommodation as: “necessary and appropriate modification and adjustments not
imposing a disproportionate or undue burden, where needed in a particular case,
to ensure to persons with disabilities the enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms.”[311] In Chapter 1, the Commission noted that one of the guiding
principles relevant to this Report is that, in order to meet the requirements of the Constitution
concerning a fair trial and comparable provisions in international human rights
instruments, jurors should have certain minimum standards of personal
capacity and competence, which may require reasonable support and accommodation
that do not involve a
disproportionate or undue burden.[312]
4.80
In the Consultation
Paper, the Commission provisionally recommended that procedures for the testing
of juror literacy should not be introduced, and that all jurors should have a
responsibility to inform the court registrar if they have literacy difficulties
and should seek excusal on that ground.[313]
The Commission also provisionally recommended that it should be an offence for
any person knowingly to present for jury service where their lack of literacy
renders them incapable of performing their duties.[314]
4.81
The Commission
provisionally recommended that a requirement of fluency in English should be
introduced for all persons serving on a jury,[315]
and the Commission invited submissions on methods to be used in order to
establish that a juror is able to understand and communicate in the English
language.[316]
4.82
In the course of the
Commission’s consultation process and discussion with interested parties there
was general agreement that the absence of fluency in the English
language poses difficulties as to the fairness of a trial. There was no
consensus as to the precise steps that might be put in place to address this,
but a number of suggestions were made. A number of consultees pointed out that
current practice is often to use the process of taking the juror’s oath to
assess linguistic capacity, while others emphasised the importance of
establishing capacity prior to empanelment.
4.83
Another suggestion was to require any person who has lived in the
country for a certain minimum period to declare themselves to the court
registrar or judge and that an exchange could then take place in order for the
court to assess linguistic capacity. A number of submissions suggested that a specific requirement be
introduced that a juror be fluent in English. It was also noted that deferral
of jury service might be more appropriate than excusal because the individual’s
language skills could be expected to improve over time.
4.84
In coming to its conclusions on reading and linguistic capacity the
Commission emphasises the importance of juror competence to the fairness of a
trial. The Commission notes that this is not a new issue and, indeed, that it
is a continuing one bearing in mind that up to 25% of Irish adults have literacy difficulties.[317] The Commission also notes that this
is not, therefore, an issue confined to non-Irish nationals although the
ability to understand English, as opposed to the question of literacy levels in
general, may pose particular issues for those who have been resident in Ireland
for a relatively short period and whose first language is not English. It is
relevant to note in this context that the Commission has already
recommended that, for a juror who is not an Irish citizen, he or she must be
resident in the State for at least 5 years. For those whose first language may
not have been English on their arrival in the State, this is likely to minimise
the problem of fluency in English.
4.85
The Commission has concluded that it is important, in order to ensure a
fair trial process, that any juror, irrespective of their citizenship, should
be able to read, write, speak
and understand English to the extent that it is practicable for him or
her to carry out the functions
of a juror. The Commission does not propose to set down any prescriptive
arrangements for the assessment of this aspect of capacity and it notes that
the current arrangements appear to work satisfactorily, under which court officials,
judges and practitioners use their knowledge and experience to discern
indications of capacity or otherwise on a case-by-case basis. The Commission
considers that these arrangements can be supplemented by guidance which would
remind jurors in general of the requirements of eligibility for jury service,
which should be expressed in a manner that encourages those with any doubts as
to their capacity to identify themselves. The guidance should also make it
clear to jurors that it is both their entitlement and responsibility to inform
the court where a question of capacity regarding another juror arises.
4.86
This would facilitate a
discussion with the court official or judge who would be well placed to
consider, having regard to the specific trial or trials about to be conducted,
the competence of the potential juror. The Commission emphasises that this does
not amount to setting as a prerequisite that there be an individual assessment
of capacity in respect of all jurors, notwithstanding the current reality that
up to 25% of those called may have some literacy difficulty. The Commission is
satisfied that the current informal arrangements, based on specific matters
such as the ability or otherwise to take the juror’s oath, remain a suitable method
in this respect. In trials with a significant amount of written information
(evidence rather than visual aids), judges are likely to emphasise at the
outset the importance of reading and linguistic capacity.
4.87
As to the issue of
reasonable accommodation in accordance with the 2006 UN Convention on the
Rights of Persons With Disabilities, the Commission accepts that, where this is
practicable and reasonable it should be done. Nonetheless, the Commission
considers that any such arrangements must have regard to the right to a fair
trial. The Commission notes that, in a related area, the Oireachtas has
legislated to provide that jurors be assisted to the greatest extent possible
in complex criminal trials, in particular through the provision of written
documents, which the Commission discusses in Chapter 10, below. These
arrangements clearly facilitate juror comprehension in such complex cases, but
they must be seen against the general background that the jurors are competent
in the sense discussed in this Chapter in order to ensure that the trial
process retains the fundamental attributes of a trial in due course of law. The
Commission considers that it would be appropriate that the further research on
jury service recommended in Chapter 11, below, should include research into
permissible and practicable supports and accommodation for this purpose, based
on international best practice and experience.
4.88
The Commission
recommends that, in order to be eligible to serve, a juror should be able to
read, write, speak and understand English to the extent that it is practicable
for him or her to carry out the functions of a juror. The Commission also
recommends that this should not involve an individual assessment of capacity
but that it should continue to be a matter that is considered by court
officials, judges and practitioners using their knowledge and experience to
discern indications of capacity or otherwise on a case-by-case basis. The
Commission also recommends that these arrangements be supplemented by guidance
which would remind jurors in general of the requirements of eligibility for
jury service, which should be expressed in a manner that encourages those with
any doubts as to their capacity to identify themselves. The guidance should
also make it clear to jurors that it is both their entitlement and
responsibility to inform the court where a question of capacity regarding
another juror arises.
4.89
The Commission
recommends that, as to reasonable accommodation in accordance with the 2006 UN
Convention on the Rights of Persons With Disabilities concerning reading and
linguistic understanding, any such arrangements must ensure that the trial
process retains the fundamental attributes of a trial in due course of law. The
Commission also recommends that it would be appropriate that the research on
jury service recommended in paragraph 11.18 of this Report should include
research into permissible and practicable supports and accommodation for this
purpose, based on international best practice and experience.
5
5.01
In this Chapter, the
Commission examines the extent to which specific categories of persons should
be regarded as ineligible for jury service[318] and to what extent other categories of person may be excused from
service. In Part B, the Commission examines the current categories of persons
who are ineligible for jury service, which comprises the President of Ireland,
a specific list of persons connected with the administration of justice
(including judges, lawyers in practise and members of the Garda Síochána) as
well as members of the Defence Forces. In Part C, the Commission examines the
group of persons who may be excused as of right from jury service, including
health care professionals (such as doctors, nurses and veterinary surgeons),
civil servants, ordained clergy and teachers. The Commission discusses whether
this approach to excusal should be replaced with a general provision on excusal
for good cause, which is currently available to any person who does not come
within the category of persons who are ineligible or excusable as of right. In
Part D, the Commission discusses proposals for deferral of jury service to
complement the provisions on excusal for good cause.
5.02
Schedule 1, Part 1 of
the Juries Act 1976 provides that the following are ineligible for jury
service: the President of Ireland, a specific list of persons and professions
connected with the administration of justice and members of the Defence Forces.
5.03
The list in the 1976
Act under the heading “Persons concerned with administration of justice”
comprises the following:
· Persons holding or who have at any
time held any judicial office
· Coroners, deputy coroners and
temporary coroners
· The Attorney General and members of
his or her staff
· The Director of Public Prosecutions
and members of his or her staff
· Practising barristers and solicitors
· Apprentice solicitors, and other
persons employed to carry out work of a legal character in solicitors’ offices
· Officers attached to a court or to
the President of the High Court and officers and other persons employed in any
office attached to a court
· Persons employed from time to time
in any court for the purpose of taking a record of court proceedings
(stenographers)
· Members of the Garda Síochána
· Prison officers and other persons
employed in any prison, including juvenile detention centres
· Persons employed in the welfare
service (probation service) of the Department of Justice and Equality and
· A person in charge of, or employed
in, a forensic science laboratory
5.04
The list in the 1976
Act under the heading “Defence Forces” comprises the following:
· Members of the Permanent Defence
Force, including the Army Nursing Service and
· Members of the Reserve Defence Force
while in receipt of pay for such service or duty.
5.05
Walsh has commented
that the exclusion of a very wide range of persons associated with the
administration of justice “is a well-established feature of jury composition in
the common law world” and that is based on two related aspects of the function
of a jury. Firstly, it is “a vital element in protecting the jury’s essential
image as a representative body of laypersons which provides a critical balance
to the legal professionals in the administration of justice.” Second, excluding
such persons from jury service is related to “the need to avoid the appearance
of bias which may result if such personnel were to sit in their capacity as
ordinary citizens determining whether their colleagues had proved a case beyond
a reasonable doubt.”[319]
5.06
The Commission agrees
that the exclusion of these categories of persons is important in order to
reinforce the impartiality of the jury, one of the guiding principles set out
in Chapter 1 of this Report. Were such persons to be eligible for jury service
there is the risk that they may be deferred to in the jury room on the basis of
their status or legal knowledge or that they may have information (or access to
it) about the defendant or the victim that is not presented in evidence at
trial. This rationale was also noted during the Oireachtas debates on the 1976
Act.[320]
5.07
As pointed out by
Walsh, most jurisdictions continue to apply an approach to ineligibility
that is broadly comparable to that in the 1976 Act, although the Commission acknowledges that a small
number have moved significantly towards a view that all professions should be
eligible for jury service. Among the first to do this was the state of New York
which, in 1993, launched a New York Jury Project with the general
aim of making juries more representative of the communities from which they
were selected thus making the jury system itself fairer and more efficient.[321]
The outcome was that New York state law removed all previous statutory
occupational exclusions and exemptions, including those connected with the
administration of justice. Other states in the United States have also limited
the ineligibility list, but many still exclude members of professional fire and
police forces and members of the armed forces on active duty.[322]
5.08
The only common law jurisdiction of which the Commission is aware to
have followed the New York approach is England and Wales. The 1965 Report of the Departmental
Committee on Jury Service (the Morris Committee) recommended that persons
involved in the administration of justice should continue to be ineligible for
jury service in England and Wales,[323]
and this was implemented in the Juries Act 1974, as enacted.
Between 1974 and 2001, a number of reviews had accepted that it was appropriate
to continue the exclusion of persons connected with the administration of
justice.[324] The 2001
Auld Review recommended, however, that in terms of eligibility for jury service
no distinction should be drawn between professions or occupations and it
rejected the suggestion that other members of the jury would be unduly
influenced by the presence of a judge, a lawyer or a police officer.[325]
It also considered that, in terms of the potential for bias, or the perception
of bias, this could be dealt with by the trial judge on a case-by-case basis.
It accordingly recommended that the exclusion of these persons from jury
service should be removed and this was implemented by amendments to the 1974
Act made by the Criminal Justice Act 2003. The effect of this is that
the 1974 Act, as amended in 2003, provides that virtually all persons involved
in the administration of justice, including judges, lawyers and police
officers, are eligible to serve on juries in England and Wales.
5.09
The changes made in
2003 have been described as controversial, and Hungerford-Welch has noted that
one effect is that, since 2003, “the composition of the jury has been a
frequent ground of appeal against conviction.”[326]
In R v Abdroikov, Green and Williamson,[327]
the UK House of Lords (since 2009 replaced in its judicial capacity by the UK
Supreme Court) dealt with appeals from three separate trials, the first two
involving a jury that included a serving police officer, and the third involving
a solicitor employed by the Crown Prosecution Service (CPS). The House of Lords
reviewed the changes in the 1974 Act arising from the Auld Review, and held
that, in enacting the 2003 Act, the UK Parliament must have been aware of the
test for apparent jury bias but that it must have also concluded that it was
appropriate to move from excluding certain persons from eligibility to virtual
universal eligibility. In that respect it considered that the UK Parliament
must have considered that the risk of bias in the case of serving police
officers or CPS solicitors was manageable within the system of jury trial. It
also noted, however, that the expectation expressed in the Auld Report that
doubtful cases would be resolved by the trial judge was not possible where
neither the judge nor counsel knew that the juror was a police officer or CPS
solicitor.
5.10
In Abdroikov,
the House of Lords concluded that the first defendant’s conviction could stand
but it quashed the other two. In the case of the first defendant, the trial did
not turn on a contest between the evidence of the police and of the defendant,
and it would have been difficult to suggest that unconscious prejudice, even if
present, would have been likely to operate to his disadvantage. In the second
defendant’s trial, however, there was a crucial dispute on the evidence between
the defendant and the police officer who was the alleged victim; since the
victim and the police officer on the jury shared the same local service
background, the instinct of a police officer juror to prefer the evidence of a
brother officer to that of a drug-addicted defendant would be judged by the
fair-minded and informed observer to be a real and possible source of
unfairness, beyond the reach of standard judicial warnings and directions. In
the third defendant’s trial, the House of Lords agreed that justice was not
seen to be done where one of the jurors was a full-time, salaried, long-serving
employee of the prosecutor, the CPS.
5.11
The approach recommended by the Auld Report has not been followed in
Northern Ireland or Scotland. In Northern Ireland, the Juries (Northern
Ireland) Order 1996 continues to deem ineligible for jury service persons
connected with the administration of justice, including members of the
judiciary, solicitors and barristers.[328] During 2008 and 2009 the Scottish
Government conducted a review of its juries legislation. In a 2008 Consultation
Paper,[329] it pointed out that the
rationale for the exclusion of those working within the justice system is that
they could have knowledge of the case or those involved in bringing or
defending the case, or access to systems such as computerised records about
cases or individuals, which could interfere with their impartiality. It added
that “[i]n a relatively small jurisdiction such as Scotland, the risk of
conflicts of interest is real and should be minimised” and that the wholesale
exclusion of those working in the criminal justice system was a response to
this.[330]
It also noted that the English 2003 reforms had given rise to difficulties,
such as those noted above, and that they had created a new procedural layer in
the jury selection process that was not consistent with fairness or efficiency.
While inviting comments on whether the English approach should be adopted in
Scotland, it noted that “the objectivity and impartiality of jurors should not
be compromised.”[331]
In its 2009 review of the consultation process that followed, the Scottish
Government stated that it did not intend to amend the “ineligible for jury
service” list, pointing out that the responses to the consultation did not
indicate a strong appetite for change. It added that there was “a strong
indication from respondents that it would be unwise to open up jury duty to
those who work within the justice system.”[332] Similar views were expressed by consultees in Northern Ireland
when the Northern Ireland
Court Service carried out a public consultation between 2008 and 2010 on Widening
the Jury Pool.[333]
5.12
In the Australian states and territories the relevant legislation on
jury service continues to render ineligible persons connected with the
administration of justice. In
2010, the Law Reform Commission of Western Australia, having reviewed the
matter extensively, concluded that the key elements of such restrictions should
remain in place, so that judges, lawyers in practice and those closely
connected to the administration of justice such as coroners would continue to
be ineligible for jury service.[334]
Thus, the Western Australia Juries Act 1957, as amended by the Juries
Legislation Amendment Act 2011, continues to render ineligible
persons connected with the administration of justice.
5.13
In terms of international law, the European Court of Human Rights
(ECtHR) has held that the right to a fair trial under Article 6 of the European
Convention on Human Rights (ECHR) may be violated by the presence on the jury
of a serving police officer. In Hanif and Khan v United Kingdom[335] the applicants had been convicted of drugs offences by a
jury that included a police officer who knew one of the police officers giving
evidence and had worked with him previously. The trial judge allowed the police
officer to sit as a juror, and he subsequently became the foreman. The
applicants appealed their convictions on this basis, but the convictions were
upheld by the English Court of Appeal, and the UK House of Lords refused the
applicants leave to appeal. The ECtHR noted that, of the 13 jurisdictions it
had surveyed,[336] only three
(Belgium, England and New York) permitted police officers to serve on juries.
The ECtHR did not conclude that police officers could never be permitted to
serve on juries but that because English law was in a significant minority on
this point it had to be regarded with careful scrutiny. In the case, the ECtHR
held that the right of the applicants to a fair and impartial hearing had been
violated.
5.14
In approaching the list
of ineligible persons in the Consultation Paper, the Commission took into
account the small population in the State and the relatively small numbers of
persons connected with the administration of justice. It noted that if all
categories of ineligibility were removed, it would be extremely difficult to
establish independent and objective juries.[337]
The Commission therefore provisionally recommended that the following
categories of persons continue to be ineligible for jury service: the
President,[338] members of
the judiciary,[339] retired
members of the judiciary,[340] coroners
and deputy coroners,[341] the
Attorney General and members of staff of the Attorney General,[342]
the Director of Public Prosecutions and members of staff of the Director of
Public Prosecutions,[343] practising
barristers, solicitors and solicitors’ apprentices,[344]
members of An Garda Síochána,[345]
prison officers and other persons employed in a prison or place of detention,[346]
persons working in the Probation Service,[347]
and persons in charge of, or employed in, a forensic science laboratory.[348]
5.15
The Commission
provisionally recommended that clerks and other persons employed on work of a
legal character in solicitors’ offices, and members of the Permanent and
Reserve Defence Forces,[349]
should be eligible for jury service.[350]
5.16
The Commission invited
submissions on whether persons employed to take court records (stenographers),[351]
and officers attached to a court,[352]
are sufficiently connected to the criminal justice system to merit their continued
ineligibility for jury service.
5.17
The Commission provisionally recommended that civilians employed in the
Garda Síochána continue to be eligible for jury service:[353] such persons are not currently included
in Schedule 1 of the 1976 Act. The
Commission also provisionally recommended that retired members of An Garda
Síochána should not be eligible for jury service until three years after
retirement and that retired Gardaí selected for jury service should inform the
court of their former occupation.[354]
5.18
In the submissions
received and in the further consultative meetings held by the Commission there
was general agreement that the President of Ireland should continue to be
ineligible for jury service particularly having regard to his or her
constitutional role.
5.19
There was also general
agreement that those most closely associated with the administration of justice
should continue to be ineligible for jury service. Thus consultees were in
general agreement that members of the judiciary and persons employed in
the offices of the Director of Public Prosecutions and of the Attorney General
(which includes the Chief State Solicitor) should continue to be ineligible.
There was also general agreement that members and staff of the Garda Síochána
Ombudsman Commission should be ineligible to serve (which would reflect the
comparable position in
Northern Ireland). These views were influenced by the small size of the State
and the connected risks discussed in the Consultation Paper to the impartiality
of the jury (actual or perceived) and which (as discussed above) had also been
adverted to by the Scottish Government in its review of the Scottish jury
system in 2008 and 2009.
5.20
As to whether
practising solicitors and barristers should serve, the majority of consultees
considered that they should continue to be ineligible. A minority of consultees
suggested that solicitors and barristers, whether practising or not, should be
eligible for jury service and that, if called, a solicitor or barrister could
indicate to the court whether there was a specific reason why he or she should
not be a juror in a specific case.
5.21
As to whether officers attached to a court should be eligible to serve,
it was also noted that there was the possibility that other jurors could be
influenced by the level of knowledge that such persons would bring to the
deliberations. A similar view was expressed concerning stenographers, and it
was also noted that the role of stenographers was being replaced by the computer-aided real time
transcription (CART) system being introduced into refurbished
courtrooms.[355] Consultees
also noted that, since the enactment of the Juries Act 1976, as the
Courts Service has been established (under the Courts Service Act 1998)
the reference to officers attached to a court should also refer to employees of
the Courts Service.[356]
5.22
A large majority of consultees agreed that, for the same reasons already
discussed (possible deference by other jurors and the risk of bias), members of
the Garda Síochána should be ineligible for jury service, with a minority
suggesting that that they be eligible after a number of years following
retirement. There was also general agreement that civilian persons employed in
the Garda Síochána should be ineligible.
5.23
There was general agreement that members of the Defence Forces should be
eligible to serve on juries.
5.24
Having considered these
views, the Commission notes the importance of the guiding principle in
Chapter 1 that jury members must be, and be seen to be, independent and unbiased. It could be suggested
in this respect that the list of persons who may be regarded as ineligible to
serve on juries in civil cases need not be as extensive as the list that would
apply to criminal trials. Having considered this matter, the Commission has
concluded that any such differences do not warrant providing for two separate
lists of ineligible persons. The Commission also considers that a significant
factor in this respect is the small size and population of the State, which
necessarily means that the number of persons currently ineligible under the
1976 Act, including those involved in the administration of justice, is small
in number and that, reflecting the nature of Irish society generally, they are
often well acquainted with each other through work-related and social
interaction. The Commission notes that this factor influenced the analysis by
the Scottish Government when in 2008 and 2009 it reviewed this aspect of jury
service in Scotland, which has a comparable population. The Commission agrees
with the thrust of that analysis, which militates strongly in favour of
continuing the current list of persons who are ineligible for jury service. In
order to ensure the independent
and unbiased nature of juries, therefore, the Commission has concluded
that, subject to some minor alterations which are set out in the
recommendations below, it is appropriate to retain the list of ineligible
persons currently contained in Schedule 1 of the Juries Act 1976.
5.25
The Commission recommends that the President of Ireland should
continue to be ineligible for jury service.
5.26
The Commission
recommends that members of the judiciary, and retired members of the judiciary,
should continue to be ineligible for jury service.
5.27
The Commission
recommends that coroners and deputy coroners should continue to be ineligible
for jury service.
5.28
The Commission
recommends that the Attorney General and members of the staff of the Attorney
General should continue to be ineligible for jury service.
5.29
The Commission
recommends that the Director of Public Prosecutions and members of the staff of
the Director of Public Prosecutions should continue to be ineligible for jury
service.
5.30
The Commission
recommends that practising barristers and solicitors should continue to be
ineligible for jury service.
5.31
The Commission
recommends that solicitors’ apprentices, clerks and other persons employed on
work of a legal character in solicitors’ offices should continue to be
ineligible for jury service.
5.32
The Commission
recommends that officers attached to a court (which, having regard to the
establishment of the Courts Service under the Courts Service Act 1998, should
also include employees of the Courts Service) continue to be ineligible for
jury service.
5.33
The Commission
recommends that persons employed to take court records (stenographers) continue
to be ineligible for jury service.
5.34
The Commission
recommends that serving members of An Garda Síochána should continue to be
ineligible for jury service.
5.35
The Commission
recommends that retired members of An Garda Síochána should no longer be
eligible for jury service.
5.36
The Commission
recommends that civilians employed by An Garda Síochána who perform entirely
administrative functions should be eligible for jury service.
5.37
The Commission
recommends that Commissioners and staff of the Garda Síochána Ombudsman
Commission be ineligible for jury service.
5.38
The Commission
recommends that prison officers and other persons employed in a prison or place
of detention should continue to be ineligible for jury service.
5.39
The Commission
recommends that persons working in the Probation Service should continue to be
ineligible for jury service.
5.40
The Commission
recommends that persons in charge of, or employed in, a forensic science
laboratory should continue to be ineligible for jury service.
5.41
The Commission
recommends that members of the Permanent Defence Force, and members of the
Reserve Defence Force while in receipt of pay for any service or duty, should
be eligible for jury service.
5.42
Section 9 of the Juries
Act 1976 provides that a county register “shall” excuse any person summoned
for jury service who is one of the persons specified in Schedule 1, Part 2 of
the 1976 Act and where that person informs the county registrar of his or her “wish
to be excused.” The persons in Schedule 1, Part 2 who are thus “excusable as of
right” from jury service are:
· Members of either House of the
Oireachtas
· Members of the Council of State
· The Comptroller and Auditor General
· The Clerk of Dáil Éireann
· The Clerk of Seanad Éireann
· A person in Holy Orders
· A regular minister of any religious
denomination or community
· Vowed members of any religious order
living in a monastery, convent or other religious community
· The following health care
professionals if actually practising and registered:
o Medical practitioners
o Dentists
o Nurses
o Midwives
o Veterinary surgeons
o Pharmaceutical chemists
· A member of staff of either House of
the Oireachtas, heads of Government Departments and Offices, any civil servant,
any civilian employed by the Minister for Defence under section 30(1)(g) of the
Defence Act 1954, the secretary to the Commissioners of Irish Lights and
any person in the employment of the Commissioners, chief officers of local
authorities, the head or principal teacher of the college of a university, of a
school or other educational institution, and any professor, lecturer or member
of the teaching staff of any such institution (on a certificate from a
designated person that it would be contrary to the public interest to have to
serve as a juror because he or she performs services of public importance that
cannot reasonably be performed by another or postponed)
· Whole-time students at a college of
a university, of a school or other educational institution
· Masters of vessels, duly licensed
pilots, and duly licensed aircraft commanders
· Persons aged 65 years or upwards
5.43
Persons on this list
are, of course, eligible to serve as jurors if they so wish, but where they do
not wish to they may inform the county registrar who must excuse them under
section 9 of the 1976 Act.[357]
5.44
In approaching this
aspect of jury service, the Commission has had regard to two related matters.
In the first place, the group of persons who may be excused as of right
comprises a significant proportion of the overall pool of about two million
registered electors from which juries are chosen. Thus, to take some of the
larger groups of persons involved in this list, there are in the order of
65,000 nurses in the State (on the active register of An Bord Altranais, the
Nursing and Widwifery Board), about 60,000 teachers and lecturers in
educational institutions (persons whose salaries are paid by the Department of
Education), almost 30,000 civil servants, about 18,000 doctors (registered with
the Medical Council), in the region of 4,500 pharmaceutical chemists
(registered with the Pharmaceutical Society of Ireland), over 2,000 veterinary
surgeons (registered with the Veterinary Council of Ireland) and about 2,000
dentists (registered with the Dental Council). This group amounts to almost
200,000 persons who are “excusable as of right” under the 1976 Act (to which
would need to be added the other categories, such as those over 65 years of
age).
5.45
A second important
matter to which the Commission has had regard is that, in practice, many
persons who are excusable as of right exercise the option not to serve as
jurors under the 1976 Act. As already noted, the Commission’s discussions with
consultees in 2012 confirmed that there is an attrition rate of between 60% and
70% of those summoned for jury service[358]
and that this can be broken down as follows. For about 10% of issued summonses,
the summons is returned because for example the person has left the address or
is deceased. A further 10% of persons who are summoned do not attend on the
date specified in the summons. Another 20% to 25% are within the lists of
persons who are excusable as of right, ineligible for jury service or
disqualified arising from a criminal conviction. A further 20% to 25% are
qualified and eligible to serve but are excused on the basis of the discretion
to do so under the 1976 Act: the most common reasons for allowing a
discretionary excusal are that the person is a full-time carer, has a medical
procedure that cannot be postponed, work commitments (in particular where the
person is self-employed) or because holidays have been booked. Apart from this
administrative reality in terms of the number of jury summonses that must be
issued in order to ensure that a sufficient number of persons are available for
jury service, a former Director of Public Prosecutions has pointed out that
another important effect is that “almost anybody with a professional
qualification is either excluded or can claim to be excused.” He pointed out
that “what one ends up with on a jury is not a group of 12 random citizens: it
is a group of people are very heavily weighted towards the unemployed, students
and housewives. It is not, generally speaking, a representative sample.”[359]
5.46
The 2001 Auld Review in
England and Wales acknowledged that there might be good reasons for excusing
people from jury service when they are required to perform important roles
during the period specified in the summons.[360]
It concluded that there was no reason, however, why they should be entitled to
be excused as of right “simply by virtue of their position.”[361]
The recommendations of the Auld Review were implemented in amendments to the Juries
Act 1974 made by the Criminal Justice Act 2003. The position in
England and Wales since 2003 is, therefore, that those summoned for jury service
make an application for excusal in circumstances where they are unable to
undertake jury service or where it would not be in the public interest.
Summoning officers in the Jury Central Summoning Bureau (JCSB) consider all
deferral and excusal applications. This is done on a case-by-case basis, having
regard to the individual merits of the application. The approach of the
summoning officers is to be fair to the applicant for excusal, while being
consistent and attentive to the needs of the court in selecting a
representative jury.
5.47
In its 2008 Consultation Paper on reform of the jury system in Scotland,[362]
the Scottish Government noted that the reforms in England and Wales had not led to the situation that those
previously “excusable as of right” would henceforth serve on any jury for which
they were summoned. It commented that “the pattern of the previous excusals as
of right has, to some extent, been replicated, at least in relation to some of
the more obviously public service-focused occupations in healthcare such as
hospital consultants and doctors.”[363]
In its 2009 review of the consultation process that followed, as already
noted the Scottish Government stated that it did not intend to amend the
“ineligible for jury service” list, pointing out that the responses to the
consultation did not indicate a strong appetite for change. This was also the
case in respect of the list of
those occupations that were eligible to apply for “excusal as of right.” [364]
5.48
In Australia, there has
been a significant reduction in the categories of those who are excusable from
jury service in most of the states and territories. This has been influenced by
the analysis made by a number of reviews of jury legislation. Thus, the 1994
Australian Institute of Judicial Administration review of jury management in
New South Wales noted that the list of exemptions in that jurisdiction was too
wide and that the exemptions were difficult to reconcile.[365]
Similarly, in 2007 the New South Wales Law Reform Commission recommended that
individuals should not be entitled to excusal solely on the basis of their occupation,
but that excusal should be decided on a case-by-case basis.[366]
As a result, since 2010 the legislation in New South Wales sets out a list of
criteria that must be established in an individual case to excuse a potential
juror.[367] A similar
position applies in Tasmania,[368]
Southern Australia[369] and
Queensland.[370]
5.49
In New York state, arising from the 1993
New York Jury Project, excusal from jury service is now granted
on the basis of ill health (physical or psychological) or “undue hardship” and
these are decided on a case-by-case basis.
5.50
In the Consultation
Paper, the Commission provisionally recommended that the categories of persons
excusable as of right under the 1976 Act should be repealed and replaced with a
general right of excusal for good cause,[371]
and that evidence should be required to support applications for excusal.[372]
5.51
In the submissions received by the Commission and in the further
consultations held with interested parties, there was general agreement that,
as a result of the wide number of professions included in the category of
“excusal as of right” only a small number of professionals actually serve on
juries and that the effect was that some juries are composed of young persons
and those over 65. It was acknowledged that persons are rarely prosecuted for
failing to turn up for jury service.
5.52
There was general
agreement that excusals as of right from jury service ought to be restricted. It
was suggested that if this occurred, a discrete method should be available to
those wishing to communicate information to the court as to the grounds on which
excusal was sought. It was
also accepted that self-employed persons, small business owners and
those with caring responsibilities were likely to be able to continue to apply
successfully for excusals on a case-by-case basis.
5.53
The Commission
acknowledges that the current system of excusal on the basis of membership of a
particular profession or by holding a particular position in Ireland is
difficult to reconcile with the fundamental principle set out in Chapter 1 that
the jury pool should be broadly representative of the community and that jury
selection should, in general, be random in nature. The Commission is also of
the opinion that the approach adopted in the 1976 Act is not sustainable, as
the range of persons carrying out important functions across the public or
private sectors varies from time to time to such an extent that it is not
feasible to maintain a definitive list. In any event, the Commission is of the
view that the maintenance of a list of persons who are excusable as of right is
likely to give rise to confusion or a sense of arbitrary selection.
5.54
The Commission notes
that section 9(2) of the 1976 Act confers a general power on the county
registrar or, as the case may be, the judge to excuse a juror from attendance
if that person shows “good reason” why he or she should be so excused. As
already noted, the most common reasons for allowing a discretionary excusal are
that the person is a full-time carer, has a medical procedure that cannot be
postponed, work commitments (in particular where the person is self-employed)
or because holidays have been booked.
5.55
It has been suggested
to the Commission that merely putting forward these grounds is generally
sufficient for excusal and that documentary evidence is not usually sought. The
Commission considers that clear criteria should be in place to assess
applications for excusal. A measure of flexibility would also have to be
retained for a case-by-case analysis of particular circumstances. To this end,
the Commission recommends that the Courts Service should prepare and publish
guiding principles to assist county registrars in determining whether to grant
or refuse the application for excusal. These could be based on the type of
criteria developed in other jurisdictions.[373]
It should be necessary to support applications for excusal with sufficient
evidence. It would not be unduly burdensome to require a person to provide a
copy of a travel itinerary showing the dates of holidays booked, for example.
Similarly, it is not unreasonable to require medical certification for doctor
and dentistry appointments or other evidence that a person can easily obtain.
5.56
The Commission
recommends that section 9(1) and Schedule 1, Part 2, of the Juries Act 1976,
which provide for a list of persons excusable from jury service as of right,
should be repealed and replaced with a general right of excusal for good cause,
and that evidence should be required to support applications for excusal.
5.57
The Commission
recommends that the Courts Service should prepare and publish guiding
principles to assist county registrars in determining whether to grant or
refuse the application for excusal for good cause.
5.58
Under a deferral
system, a person unable to undertake jury service elects to undertake the
obligation at a later date. This does not conflict with the principle of random
selection, since it is only after random selection of the candidate juror that
deferral is possible. There is no system of deferral of jury service in Ireland
at present, and the Commission considers that such a system could ultimately
reduce the number of people excused, as well as the number of those summoned,
because the Courts Service would have a record of people who rescheduled for
particular dates in the calendar year.
5.59
Many jurisdictions have
sought to end excessive excusal rates through the introduction of a system of
deferral. In England and Wales, section 9 of the Juries Act 1974 provides
for a system of deferral which is discretionary and based on a showing of “good
reason.” In Australia, deferral systems have been introduced in Victoria, South
Australia, Tasmania, and the Northern Territory. The excusals are generally for
periods up to 12 months, with an option to renew. In 2001, the New Zealand Law
Commission recommended the introduction of a system of deferral of up to 12
months (with the possibility to renew), which was implemented in section 11 of
the New Zealand Juries Amendment Act 2008.
5.60
The Consultation Paper
provisionally recommended that a deferral date of up to 12 months should be
introduced in circumstances where a person is not available to undertake jury
service.[374] The
Commission also provisionally recommended that a second deferral should be
available to a juror, provided that the application is for good cause.[375]
Finally, it was provisionally recommended that guidelines on excusal should
contain a section on the administration of the deferral system.[376]
5.61
The submissions
generally welcomed the Commission’s provisional recommendations on the introduction
of a system of deferral and this was confirmed in the further consultations
held with interested parties. Some submissions suggested that there should be a
statutory presumption that service be deferred rather than issuing excusals,
except in tightly drawn circumstances.
5.62
Some concern was
expressed that the introduction of a system of deferral could give rise to
additional administrative costs. The Commission accepts that this may be the
case but it is also of the view that this would be entirely outweighed by the
benefit of ensuring that travel plans, medical appointments and the like would
no longer deprive candidate jurors of an opportunity to undertake jury service.
The deferral system would encourage greater participation in jury service and
would contribute to underpinning the principle of ensuring that the pool from
which juries are chosen remains representative of the community as a whole. It
may also reduce the number of people seeking excusals and would enhance the
experience of those jurors who will have been facilitated in organising their
affairs and will thus have minimised the inconvenience caused to themselves,
their families, and where relevant their employers. In circumstances where a
deferral is granted, the Commission considers that it should be granted for a
period of up to 12 months. The Commission acknowledges that a court will not
always be in a position to provide advice on court sittings for the forthcoming
year. The Commission considers, however, that a general timeframe of 12 months
could be provided to the juror without requiring exact dates to be published.
5.63
The Commission
recommends that the legislation on jury service should include a presumption
that, even where a person provides excusal from service for cause shown, his or
her jury service should be deferred for a period of up to 12 months.
5.64
The Commission
recommends that the guidelines on excusal already recommended in this Report
should contain a section on the administration of the deferral system.
6
6.01
In this Chapter, the
Commission examines the disqualification of persons from jury service primarily
because they have been convicted of certain offences. In Part B, the Commission
discusses the current position in the Juries Act 1976 as well as
comparative approaches to this issue. The Commission discusses in this respect
the link between disqualification and the approach taken to expunging criminal
records under a spent convictions regime. In Part C, the Commission reviews the
provisional recommendations in the Consultation Paper and submissions received,
and then sets out its final recommendations. In Part D, the Commission
discusses the related process of vetting jury lists to identify persons who are
disqualified.
6.02
Section 8(a) of the Juries
Act 1976 provides that a person is disqualified from jury service if, on
conviction of an offence in Ireland, he or she has been sentenced to imprisonment
for life or for a term of imprisonment of five years or more, or under the
corresponding law of Northern Ireland. Section 8(a) of the 1976 Act thus
operates as a lifetime disqualification from jury service. Section 8(b) of the
1976 Act provides that a person is also disqualified from jury service if at
any time in the ten years before being summoned for jury service he or she has
served either (i) any part of a sentence of imprisonment of at least three
months or (ii) a sentence of detention of at least three months in Saint
Patrick’s Institution (a closed detention centre for persons under 21 years of
age)[377] or in a
corresponding institution in Northern Ireland.
6.03
The Commission agrees
with the approach taken by comparable law reform bodies that a number of
competing principles are relevant to a review of disqualification arising from
criminal convictions.[378]
Firstly, it is arguable that a person who has been convicted of a serious
offence may have a less favourable view of the State (including of the Garda
Síochána) and the jury system, and that this may colour their views of the
trial process. Second, it is also arguable that a history of criminality is an
unsuitable and undesirable characteristic for a jury member, whether a jury in
a criminal trial or a civil trial. Third, individuals with a criminal history
could conceivably be susceptible to coercion or influence from criminal
acquaintances. In this respect, disqualification from jury service because a
person has been convicted of a serious offence is consistent with the general
principle identified in Chapter 1 that the jury must be independent and
impartial.
6.04
The Commission notes
that section 8 of the 1976 Act currently approaches this issue by focusing
primarily on the sentences imposed on a person, albeit that section 8(a)
alludes indirectly to the seriousness of the offence by referring to a sentence
of five years or more, which (since the enactment of the Criminal Law Act
1997) corresponds to an arrestable offence, one of the most important
indicators of the seriousness of a criminal offence. As the comparative
analysis below illustrates, a number of jurisdictions have amended their
disqualification provisions by introducing a dual test that retains the
sentencing criterion but also includes reference to specified offences. In this
respect, a number of jurisdiction have also aligned the periods of
disqualification with the relevant periods during which a conviction remains on
a person’s criminal record and is not “spent” or expunged under a spent
convictions regime. In the 2007 Report on Spent Convictions,[379]
which recommended the enactment of a spent convictions regime, the Commission
concluded that this should be based on a combination of: (i) a sentencing
threshold (only convictions where the sentence was below a threshold would
qualify for being spent and thus expunged from a person’s criminal record) and
(ii) a specific list of offences (convictions for these offences would never
qualify for expungement, regardless of the sentence imposed). This dual
sentence-and-offence approach is also evident in the Criminal Justice (Spent
Convictions) Bill 2012, which implements the key recommendations in the
2007 Report.
6.05
In England and Wales the
Juries Act 1974, as amended, provides for the disqualification for
life of individuals who have been sentenced to imprisonment for life,
custody for life, to a term of imprisonment or youth custody of five years or
more, or who has been sentenced to be detained during the pleasure of Her
Majesty, the Secretary of State, or the Governor of Northern Ireland. The 1974
Act also provides for the disqualification of individuals for ten years who
have (a) served any part of a sentence of imprisonment, youth custody or
detention; (b) been detained in a Borstal institution; (c) had passed on him or
her a suspended sentence of imprisonment or order for detention, or (d) had
made in respect of him or her a community service order. The 1974 Act
disqualifies for five years individuals who have been subject to a
probation order. Disqualification in England and Wales applies to those who
have been sentenced in the United Kingdom, the Channel Islands or the Isle of
Man.[381] These
disqualification periods are broadly in line with the rehabilitation periods in
the British Rehabilitation of Offenders Act 1974, which provides for a
spent convictions regime comparable to the Criminal Justice (Spent
Convictions) Bill 2012. The 2001 Auld Report[382]
recommended that there be no change to the disqualification provisions.
6.06
In Scotland, where the
British Rehabilitation of Offenders Act 1974 also applies, the
disqualification for life provisions are largely the same as those found
in England and Wales. The other disqualifications differ in a number of
respects. Temporary disqualification applies to those who (a) in the last 7
years (or 3.5 years where the individual was under 18 on the date of conviction)
served any part of a sentence for imprisonment or detention of between 3 and 6
months; or (b) in the last 10 years (or 5 years where the individual was
under 18 on the date of conviction) served any part of a sentence of
imprisonment or detention of between 6 and 30 months; or (c) at any time
served any part of a sentence of imprisonment or detention of between 30 months
and 5 years; or (d) in the last 7 years has been detained in a borstal
institution. In the case of a person convicted of an offence and to whom a
non-custodial order was handed down,[383]
the disqualification period relates to the last 5 years (or 2.5 years
where the individual was under 18 on the date of conviction).
6.07
In Northern Ireland,
the disqualification provisions in the Juries (Northern Ireland) Order 1996 differ from those in
England, Wales and Scotland and are virtually identical to those in the Juries
Act 1976. They have not been aligned with the rehabilitation periods in the
Rehabilitation of Offenders (Northern Ireland) Order 1978, which
introduced a spent convictions regime in Northern Ireland broadly comparable to
the British Rehabilitation of Offenders Act 1974. In its 2010 summary of
responses to a public consultation on Widening the Jury Pool,[384]
the Northern Ireland Courts Service noted that the majority of respondents
considered that the juror disqualification periods should be aligned with the
rehabilitation periods in the Rehabilitation of Offenders (Northern Ireland)
Order 1978 but at the time of writing this view has not led to such a
realignment.[385]
6.08
In New Zealand, section
7 of the Juries Act 1981 as amended[386]
provides
that persons are disqualified from jury service for life where they have
been sentenced to imprisonment for life or for a term of 3 years or more, or to
preventive detention, and are disqualified for 5 years where they have
been sentenced to imprisonment for a term of 3 months or more, or to corrective
training. The New Zealand Law Commission considered the disqualification of
persons from jury service as part of its 2001 review of the jury system and
found that, on balance, the current provisions were justified.[387]
Consistently with this, the New Zealand Juries Amendment Act 2011 provides
that persons sentenced to three months or more home detention in the previous
five years are disqualified from jury service. This puts people sentenced to
home detention in the same category as those sentenced to imprisonment for
three months or more.
6.09
Australian
jurisdictions adopt differing approaches to disqualification. In Victoria,
under the Juries Act 2000 there
is a two year disqualification for anyone sentenced for the commission
of any criminal offence, a five year disqualification for those
sentenced to imprisonment for a total of less than three months, and a 10
year disqualification for those sentenced to imprisonment for a total of
three months or more. Individuals are disqualified for life where they
have been convicted of treason or an indictable offence and sentenced to a
period of imprisonment of 3 years or more.[388]
In Queensland, the Juries Act 1995 provides that there is an
absolute ban on jury service for persons convicted of indictable offences or
sentenced to imprisonment.[389]
6.10
The New South Wales Law
Reform Commission acknowledged in its 2006 Issues Paper on Jury Selection
that there are “formidable difficulties involved in identifying all of the
offences which ought to disqualify a person from serving as a juror.”[390]
In its 2007 Report on Jury Selection[391]
it concluded that the existing sentence-related approach should in general be
retained, but that disqualification should also apply to conviction for certain
designated offences such as terrorist offences and offences involving the
administration of justice. Arising from this, the New South Wales Jury Act
1977, as amended by the Jury Amendment Act 2010, provides
for the exclusion of individuals for life for a crime which (wherever
committed), if committed in New South Wales, would be punishable with a maximum
penalty of life imprisonment; an offence that involves a terrorist act; certain
public justice offences, and certain sexual offences.[392]
The exclusion ceases to apply if the relevant finding of guilt or the
conviction has been quashed or annulled or a pardon has been granted in respect
of it. Persons are excluded from serving for 7 years after serving a sentence
of less than a consecutive period of 3 months, and for 10 years after serving a
sentence of a consecutive period of 3 months or more. The exclusion does not
apply if the relevant finding of guilt or the conviction has been quashed or annulled
or a pardon has been granted in respect of it, or where it has been converted
into a non-custodial sentence on appeal. Nor does it apply to a sentence of
imprisonment for failure to pay a fine. In all cases, reference to a sentence
includes suspended sentences. Persons are excluded from jury service where they
are currently serving a sentence, in custody, or awaiting trial. Individuals
are also excluded while carrying out certain non-custodial sentences.[393]
The 1977 Act, as amended in 2010, includes a number of further miscellaneous
exclusions, for example, exclusion from service during any period of 12 months
or more in which a person is disqualified from holding a driving licence.
6.11
In the Consultation
Paper, the Commission considered approaches to disqualification based on length
of sentence and on the seriousness of a crime. The Consultation Paper suggested
that determining disqualification solely on the basis of the seriousness of an
offence may be problematic because deciphering which criminal offences are more
serious could be a time consuming and subjective exercise. The Commission also
noted the argument that the seriousness of a criminal offence is best reflected
by the sentence imposed by the trial judge, exercising discretion on the
particular facts of the case.[394]
The Commission therefore provisionally recommended that the criteria for
exclusion from eligibility for jury service should, at least in part, continue
to be based on length of sentence rather on the seriousness of the offence.[395]
6.12
The Commission, noting
the previous recommendations in its 2007 Report on Spent Convictions,[396]
invited submissions as to whether there should be a shorter period of disqualification
for less serious offences.[397] The
Commission also acknowledged that a ten year disqualification from jury service
for young offenders was excessive and provisionally recommended that the
exclusion period for offenders under the age of 18 should be reduced and
invited submissions as to what lesser period would be appropriate.[398]
The Commission also invited submissions as to whether persons who are awaiting
trial on criminal charges should continue to be eligible for jury service, and
whether any requirements as to informing a court of this fact should be
required.[399]
6.13
The Commission
provisionally recommended that the position of those currently serving
sentences of imprisonment should be clarified to make clear their
disqualification from jury service.[400]
6.14
The Commission
provisionally recommended that disqualification from jury service should not be
extended to persons subject to non-custodial sentences or community based
orders. Such orders include suspended sentences, community service orders,
fines, probation orders and the Court Poor Box, binding over, restriction on
movement orders, curfews and exclusion orders, disqualification orders, and
compensation orders.[401] The
Commission invited submissions as to whether persons subject to such sentences
should be obliged to inform the court of this fact prior to jury empanelling.[402]
6.15
The Commission
provisionally recommended that persons convicted of criminal offences outside
the State should be disqualified from jury service and that disqualification of
persons convicted of criminal offences abroad should apply in the same way and
for the same period of time as it applies to persons convicted of criminal
offences in this jurisdiction.[403]
6.16
There was general
agreement, both in the submissions received during the consultation process and
in the further consultations held with interested parties, that statutory
provision for disqualification related to criminal convictions should be
retained. There was also broad agreement that, in general, a disqualification
system related to sentence was appropriate and that there was merit in the
proportionate approach taken by the 1976 Act under which those sentenced to shorter periods
should also be disqualified for a shorter period. It was noted that this
approach was consistent with the approach in spent convictions legislation,
such as that proposed in the Criminal Justice (Spent Convictions) Bill 2012.
6.17
Some consultees
suggested that this general sentence-based approach could be subject to some
exceptions. They proposed that persons convicted of an offence relating to interference with the
administration of justice should be disqualified for life; and it was also
suggested that a conviction for an offence of dishonesty should be
treated more seriously than, for example, a conviction for assault.
6.18
There was general agreement that expanding disqualification to include
non-custodial sentences would render the system of disqualification too
extensive. Some consultees
suggested, nonetheless, that consideration be given to disqualifying a person
who has been convicted of a serious offence for which a suspended sentence has
been imposed.
6.19
There was general
agreement that persons who have been charged with but acquitted of crimes
should not be disqualified from jury service. A number of consultees noted that the 1976 Act does not disqualify
those who have been charged with an offence and are awaiting trial, and some
suggested that such persons be brought within the disqualification provisions.
6.20
As to offences
committed in other jurisdictions, it was noted that section 8 of the 1976 Act
applies not just to convictions and sentences in the State but also to
comparable offences in Northern Ireland. Consultees suggested that
consideration be given to expanding this to other jurisdictions. It was
acknowledged that such a proposal raises the practical question as to how the
Courts Service or the Garda Síochána would be aware whether a prospective juror
had serious convictions in another jurisdiction, though it was noted that,
within the EU, proposals for a register of criminal convictions was
under active development.
6.21
Consultees also
approved the proposal that the vetting of jury lists be placed on a transparent
statutory footing.
6.22
The Commission notes
that section 8 of the 1976 Act disqualifies persons from jury service on the
basis of the length of a sentence imposed on conviction. While this has the
benefit of clarity and ease of administration, it can give rise to anomalies in
that a person is not disqualified where he or she has been convicted of a
serious offence but has been sentenced to a term below the thresholds in the
1976 Act. This gives rise to at least an arguable conflict with the general
principle referred to in Chapter 1 that the jury should be competent and free
from bias.
6.23
In this respect, the
Commission sees great merit in the approach taken by the New South Wales Law
Reform Commission in its 2007 Report on Jury Selection[404]
that a sentence-related approach to disqualification should in general be
retained, but that this should be complemented by providing that
disqualification would also apply to conviction for certain designated offences
regardless of the sentence imposed. The Commission considers appropriate for
this purpose those offences which the Oireachtas has reserved for trial in the
Central Criminal Court, terrorist offences and offences against the
administration of justice. The Commission notes that this dual
sentence-and-offence approach was adopted by the Commission in its 2007 Report
on Spent Convictions,[405]
and that this general approach is also evident in the Criminal Justice
(Spent Convictions) Bill 2012 (at the time of writing, the 2012 Bill has
been passed by Seanad Éireann and has passed Committee Stage in Dáil Éireann).
6.24
The Commission also
considers that, in respect of offences not encompassed in the proposed specific
list of offences the period of disqualification from jury service should, where
relevant, mirror the comparable timeframes in the Criminal Justice (Spent
Convictions) Bill 2012. Thus, under the 2012 Bill,[406]
where a person is sentenced to imprisonment for a term of 12 months or less but
more than 6 months, the conviction becomes spent 5 years after the date of
conviction. The Commission considers that, consistently with this view, a
person should be disqualified from jury service for a period of 5 years where
he or she has been convicted of such an offence and has been sentenced to
imprisonment for a term of 12 months or less but more than 6 months. The
Commission notes that the Criminal Justice (Spent Convictions) Bill 2012 does
not permit a conviction to be regarded as spent where a person has been
sentenced to a period of imprisonment of greater than 12 months. The Commission
has concluded that, in respect of such situations, the person should be
disqualified for 10 years. The effect of this would, therefore, be that the
current 10 year disqualification period in the Juries Act 1976 would
continue to apply where a person has been sentenced to a period of imprisonment
in excess of 12 months, and that the period of disqualification would be lowered
(matching the periods in the Criminal Justice (Spent Convictions) Bill 2012)
where the sentence imposed was 12 months or less.
6.25
As to non-custodial
sentences, the Commission also confirms the view expressed in the Consultation
Paper[407] that the
approach to such sentences should mirror how they are treated in a spent
convictions regime, as now set out in the Criminal Justice (Spent
Convictions) Bill 2012. As with custodial sentences, the 2012 Bill follows
a sliding scale approach to non-custodial sentences, as follows:[408]
1. Term of
imprisonment of 12 months or less which is suspended for a specified period and
which suspension is not subsequently revoked in whole or in part: becomes spent
after 3 years, or the period specified by the court, whichever is the longer.
2. Term of
imprisonment of 2 years or less but more than 12 months which is suspended for
a specified period and which suspension is not subsequently revoked in whole or
in part: becomes spent after 4 years, or the period of suspension specified by
the court, whichever is the longer.
3. Fine not exceeding
the maximum amount that can be imposed as a Class A fine (currently, under the Fines
Act 2010, €5,000 or less): becomes spent after 2 years.
4. Fine exceeding the
maximum amount that can be imposed as a Class A fine (currently, under the Fines
Act 2010, more than €5,000): becomes spent after 3 years.
5. Community service
order imposed on a person as an alternative to a sentence of imprisonment for a
term of 12 months or less considered by the court at the time of the making of
the order (and where the community service order is not subsequently revoked by
the court and replaced by a custodial sentence): becomes spent after 2 years.
6. Community service
order imposed on a person as an alternative to a sentence of imprisonment for a
term of more than 12 months considered by the court at the time of the making
of the order (and where the community service order is not subsequently revoked
by the court and replaced by a custodial sentence): becomes spent after 3
years.
7. Any other relevant non-custodial
sentence (defined in section 2 of the 2013 Act as an order dismissing a charge
under section 1(2) of the Probation of Offenders Act 1907 or a
restriction on movement order made under section 101 of the Criminal Justice
Act 2006): becomes spent after 2 years.
6.26
The Commission
considers that this approach should be adapted for the purposes of determining
the period of disqualification from jury service. In respect of a suspended
sentence in excess of the 2 year period dealt with in the Criminal Justice
(Spent Convictions) Bill 2012, the Commission considers that the
disqualification periods should be related to the general approach already set
out. Thus, where the offence involved is one for which the person may be
sentenced to life imprisonment or comes within the list of specified offences
already discussed, the disqualification period should be for life even where a
suspended sentence is imposed. Similarly, in the case of other offences, the
relevant disqualification period (whether 10 years, 5 years or 4 years) should
apply where a suspended sentence is imposed.
6.27
The Commission
acknowledges that this proposed approach involves a greater degree of
complexity by comparison with the current provisions on disqualification in
section 8 of the Juries Act 1976. The Commission nonetheless considers
that it is preferable to have in place an approach that is consistent with the
general principles set out in Chapter 1 of this Report, in particular to ensure
that juries are selected from a panel that can be seen to be competent and
unbiased. This approach is also consistent with the rehabilitative approach to
convictions set out in the Criminal Justice (Spent Convictions) Bill 2012.
The Commission also notes that any administrative difficulties arising from the
more complex nature of the proposed approach may be more apparent than real.
This is because, as discussed in Part D below, the Commission proposes that the
question as to whether a person is disqualified from jury service should be
confirmed as primarily a matter for the Garda Síochána Central Vetting Unit,
which will be renamed the National Vetting Bureau of the Garda Síochána when
the National Vetting Bureau (Children and Vulnerable Persons) Act 2012
comes fully into force.
6.28
The Commission also notes that, in respect of offences committed outside
the State, section 8 of the Juries Act 1976 provides, in effect, for
recognition of equivalent convictions in Northern Ireland. The Commission
considers that, bearing in mind that it has already recommended that non-Irish
citizens be eligible for jury service, there should be more general recognition
for equivalent convictions imposed outside the State. This recognition will be
facilitated by the development of a system for international mutual recognition
of criminal records and convictions, as envisaged in the Scheme of a
Criminal Records Information System Bill published in 2012.[409] Thus, a person convicted of
an offence committed outside the State which, if committed in the State, would
disqualify a person from jury service, would disqualify that person from jury
service in the State on the same basis and for the same periods.
6.29
The Commission
recommends that a person shall be disqualified from jury service for life where
he or she has been sentenced to imprisonment (including where the sentence is
suspended) on conviction for any offence for which the person may be sentenced
to life imprisonment (whether as a mandatory sentence or otherwise).
6.30
The Commission also
recommends that, without prejudice to the immediately preceding recommendation,
a person shall be disqualified from jury service for life where he or she has
been convicted of: (a) an offence that is reserved by law to be tried by the
Central Criminal Court; (b) a terrorist offence (within the meaning of the
Criminal Justice (Terrorist Offences) Act 2005); or (c) an offence against the
administration of justice (namely, contempt of court, perverting the course of
justice or perjury).
6.31
The Commission
recommends that, in respect of an offence other than those encompassed by the
two immediately preceding recommendations, a person shall be disqualified from
jury service: (a) for a period of 10 years where he or she has been convicted
of such an offence and has been sentenced to imprisonment for a term greater
than 12 months (including a suspended sentence); and (b) for the same periods
as the “relevant periods” in the Criminal Justice (Spent Convictions) Bill 2012
both in relation to custodial and non-custodial sentences within the meaning of
the 2012 Bill.
6.32
The Commission
recommends that persons remanded in custody awaiting trial, and persons
remanded on bail awaiting trial, shall be disqualified from jury service until
the conclusion of the trial.
6.33
The Commission
recommends that a person convicted of an offence committed outside the State
which, if committed in the State, would disqualify a person from jury service,
shall disqualify that person from jury service in the State on the same basis
and for the same periods.
6.34
As discussed in the
Introduction to this chapter, an important issue related to the provisions on
disqualification from jury service in the Juries Act 1976 is the process
by which disqualified persons are in practice excluded from jury panels. In one
respect, it could be said that this is dealt with in the notice (the J2
notice or form) that must (as required under section 12(2) of the 1976 Act)
accompany a jury summons, which draws the attention of prospective jurors to
the categories of ineligible persons, those excusable as of right and those who
are disqualified arising from criminal convictions. Just as an ineligible
person may, in returning the notice, draw the court’s attention to the fact
that they are a person who is ineligible to serve the potential juror may also
indicate that he or she is disqualified by virtue of a criminal conviction.
This may very well occur in some instances, though it might be suggested that
persons with criminal convictions are among the percentage of persons who
simply fail to respond to a jury summons. In any event, the importance of
ensuring that persons with serious criminal convictions do not serve on juries
is reinforced by a separate process of vetting the jury lists.
6.35
This is currently a
matter that involves, in large part, the Garda Central Vetting Unit, to be
renamed the National Vetting Bureau of the Garda Síochána when the National
Vetting Bureau (Children and Vulnerable Persons) Act 2012 comes fully into
force. The 2004 Report of
the Working Group on Garda Vetting, which recommended that there should be
a clear statutory framework in place to regulate vetting, now provided for in
the 2012 Act,[410]) noted
that at that time the Garda Central Vetting Unit received from the Courts
Service every 2 to 3 months a list of persons summoned for jury service, which
contained approximately 1,600 names and that these were checked against the
Vetting Unit’s register of criminal convictions.[411]
Where a person was identified as having a criminal conviction that disqualified
them from service, this was communicated to the Courts Service which would then
be in a position to ensure that the person did not sit on a jury.
6.36
The 2004 Report
identified two difficulties with the vetting of jury lists at that time, the
first being a specific problem of identifying whether a specific person has a
criminal record and the second being the extent to which vetting of Garda lists
occurred in the State.[412] As to
identifying whether a specific person has a criminal record, the Report noted
that if a father and son with the same name live at the same address, it may be
possible to say that a person with that name has a disqualifying criminal
conviction but it would not be possible to state that the person called
for jury service is the person with the criminal conviction. This is because
the jury list is derived from
the electoral list, which does not contain further identifying
information such as date of birth or PPS number. The 2004 Report recommended
that, in order to deal with this specific problem, the notice (the J2 notice or
form) that must (as required under section 12(2) of the 1976 Act) accompany a
jury summons should include a requirement that the prospective juror specify his
or her date of birth. The second, more general, problem identified in the 2004
Report was that the vetting of prospective jurors did not occur uniformly at
that time and the Report accordingly recommended that the Courts Service
standardise the practice of jury vetting in the State.
6.37
In the Consultation
Paper, the Commission suggested that clear and transparent guidelines as to the
vetting of jury lists should be introduced, and that these guidelines should
only extend to enable information being available as to whether prospective
jurors are disqualified from jury service.[413]
Therefore, the Commission provisionally recommended that provision for the
vetting of juries, to ensure that disqualified jurors are not included on the
empanelling list for jurors, be included in juries legislation. The Commission
provisionally recommended that only the Garda Síochána Central Vetting Unit
should be empowered to provide information as to whether a potential juror is
disqualified from jury service.[414]
6.38
The Commission
understands from its further discussions with interested parties that the
practice of jury vetting has become more uniform since 2004 and that this has
been facilitated through the ongoing development within the Courts Service of
combined court offices, as provided for in the Courts and Court Officers Act
2009. The Commission welcomes these administrative developments. As to the
more specific problem raised in the 2004 Report concerning the inability to
identify a specific individual with a specific conviction, the Commission
appreciates that this raises important questions over the accuracy of the jury
vetting process but it also considers that it raises wider issues such as the
potential use of a Public Sector Card (PSC). As the Commission has already
discussed in this Report,[415] the PSC
may, in time, provide solutions to a number of issues but this requires separate
consideration outside the scope of this project. Bearing in mind the limits of
the current arrangements, the Commission acknowledges the clear advantage that
the process of vetting related to disqualification of potential jurors arising
from criminal convictions is carried out by the State authority with general
statutory responsibility for vetting. This has the advantage that the process
is done on the basis of well-established protocols that assures its
independence from the investigation of a specific criminal offence.
6.39
The Commission also
acknowledges that, in a particular trial, the prosecuting authorities may have
in their possession specific information concerning the victims or the
defendants which may be used in order to challenge a juror. As already
discussed,[416] in the
majority of criminal cases the process of jury challenge involves challenges
without cause shown, and such challenges may include challenges on the basis
that the prosecution or defence – more often than not, the prosecution – is
aware that the juror may have either a criminal record or some undesirable
association with the victim or the accused.
6.40
In The People (DPP) v Dundon[417]
during the empanelling of the jury the prosecution exhausted all of their
challenges without cause shown (peremptory challenges). The prosecution then
sought to challenge a further juror for cause shown, on the basis that a family
member had a criminal conviction. It transpired that this challenge may have
arisen as a result of a mistake made by a member of the Gardaí who had confused
the name of a particular juror with a known criminal. In the event, this juror
was not required to stand down. The defendants were convicted and on appeal,
they argued that the process involved in the challenges clearly indicated that
the prosecution, through the Gardaí, had engaged in a form of vetting of the
jury panel. The defence argued that the principle of “equality of arms” was not
applied to the provision of information in relation to the jury panel and that,
therefore, the accused had not received a trial in due course of law. The Court
of Criminal Appeal did not accept this argument. The Court accepted that the process
by which the prosecution made the challenge was unclear but also held that
there was no evidence of impropriety. The Court added that it would not: “make
any finding in respect of… [a] separate contention [by the prosecution] that it
would be impossible ever to show cause without making some form of inquiry.”[418] The Court held that it was sufficient
to say that no authority was cited in the appeal that would prohibit the making
of reasonable enquiries. The Court also held that there was no resultant
prejudice to the defendants as the challenge had been disallowed.
6.41
The decision in the Dundon case confirms that neither the
prosecution nor the defence is prohibited from making reasonable enquiries about
the suitability of a candidate juror for jury service, including the extent of
the candidate’s criminal convictions. This reinforces the importance of
ensuring that the process of vetting jury panels through the Garda Central Vetting Unit, which is being
placed on a modern statutory footing as the National Vetting Bureau under the National
Vetting Bureau (Children and Vulnerable Persons) Act 2012, continues to be
applied in a nationally consistent manner by the Courts Service. The Commission
reiterates that this should remain the principal process for ensuring that
disqualified persons do not sit on juries.
6.42
The Commission
recommends that the principal process for ensuring that a person on a jury list
is not disqualified from jury service should continue to be that the Courts
Service shall, from time to time, provide jury lists to the Garda Síochána
Central Vetting Unit (to be renamed the National Vetting Bureau under the
National Vetting Bureau (Children and Vulnerable Persons) Act 2012), and that
where the Garda Síochána Central Vetting Unit communicates with the Courts
Service that a named person on the jury list is disqualified from jury service
the Courts Service shall not summon that person for jury service. The
Commission also recommends that this process continue to operate on the basis
of nationally agreed procedures and guidelines developed by the Courts Service.
The Commission also recommends that it shall continue to be the case that a
person commits an offence if he or she knowingly serves on a jury when she or
she is disqualified from jury service.
7
7.01
In this Chapter, the
Commission examines jury tampering and considers possible reforms aimed at
preventing it. This issue concerns the principle, discussed in Chapter 1, that
the right to a fair trial requires a jury that is independent and unbiased. In
Part B, the Commission considers the relevant common law and statutory offences
that deal with jury tampering. The Commission also discusses the extent to
which non-jury courts have been used to address jury tampering. The Commission
then considers the concern that the provisions in the Juries Act 1976 concerning
access to jury lists may, indirectly, facilitate jury tampering and to what
extent other jurisdictions have addressed this. In Part C, the Commission
reviews the provisional recommendations made in the Consultation Paper and,
having regard to the views expressed in the consultation process, sets out its
final recommendations.
7.02
Jury tampering can take many forms including offers of rewards,
threatening communications, making gestures towards jurors in the courtroom and
following jurors outside the courtroom. In 2009, the then Minister for Justice noted that the Garda
Síochána had confirmed that instances of jury intimidation had occurred and
that it was more surreptitious than witness intimidation.[419]
7.03
It has been noted that
a number of common law and statutory offences deal with jury tampering and
related forms of interference, which include the common law offences of
embracery, perverting the course of justice and contempt of court and a
statutory offence concerning intimidation of jurors and others in section 41 of
the Criminal Justice Act 1999.[420]
7.04
Prosecutions for embracery are rare, although in The People (DPP) v
Walsh[421] the defendant was convicted by a jury of embracery in
2005 and sentenced to four years imprisonment. The evidence against the
defendant included the testimony of a prison officer who stated that the
defendant had phoned him (the prison officer) and said that the prison
officer’s brother was, at that time, on a jury in a trial of two persons and
added that “the jury was hung and could it be swung.” Other evidence was that
when the jury for the trial of the two persons was being empanelled, the
defendant had been sitting in court noting the names and particulars of the
members of the jury panel being called forward for service. On appeal, the
Court of Criminal Appeal rejected the defendant’s argument that there was no
such offence as embracery in Irish law. The Court noted that the offence had been mentioned in the 1922
edition of Archbold, Criminal Pleading Evidence and Practice and that in
R v Owen[422] the English Court of Appeal (Criminal Division)
had cited with approval the following definition which had appeared in the 1973
edition of Archbold:[423]
“Embracery is an offence indictable at common law, punishable by fine
and imprisonment, and consists of any attempt to corrupt or influence or
instruct a jury, or any attempt to incline them to be more favourable to the
one side than to the other, by money, promises, letters, threats or
persuasions, whether the jurors on whom such an attempt is made give any
verdict or not, or whether the verdict given be true or false.”
7.05 The Court of Criminal Appeal in Walsh also pointed out that, in 1933 in In re MM and HM,[424] the Supreme Court had approved a comparable definition of embracery from Hawkins’ Treatise of Pleas of the Crown.[425] The Court of Criminal Appeal concluded that there was ample evidence on which the jury could find that the defendant had committed the offence of embracery, and it dismissed the appeal against conviction.