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.
(1)Current Law in Ireland
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 –
(a) is resident in a hospital or other similar institution, or
(b) regularly attends for treatment by a medical practitioner
is ineligible for jury service.”
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.
(2)Comparative Approaches to Mental Health and Intellectual Capacity
(a)United Kingdom
In England and Wales, Schedule 1, Part 1 of the Juries Act 1974 as originally enacted provides that an individual is ineligible to serve as a juror where he or she suffers or has suffered from a mental illness, psychopathic disorder, mental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.
(b)Australia
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.
(c)New Zealand and the 2006 UNCRPD
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.
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
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)Submissions and Final Recommendations
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.
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.
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.
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.
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.”
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.
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.
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.”
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.
