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.
Section 21(2) of the Juries Act1976 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 Act1976 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.
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
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
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
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)212the 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 Singer213the 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.”
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
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
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
In The People (DPP) v McCarthy218a 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.
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.
Indeed, in Director of Public Prosecutions v Haugh220the 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
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
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.
(2)Comparative Approaches to Challenges for Cause
(a)United Kingdom
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
(b)United States
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.
(c)Canada
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 Williams232the 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
(d)Australia
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.
(e)New Zealand
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)Consultation Paper Recommendations
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
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
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
(4)Submissions, further consultation and Final Recommendations
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.
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.
