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.
(2)Comparative Approaches
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.
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
(4)Submissions and Final Recommendations
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.
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.
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.
The Commission recommends that the guidelines on excusal already recommended in this Report should contain a section on the administration of the deferral system.
Disqualification FROM JURY SERVICE
UIntroduction
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.
VCurrent Position in Ireland and Comparative Approaches
(1)Disqualification for criminal convictions and comparison with spent convictions regime
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.
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.
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.
(2)Comparative approaches to disqualification for criminal convictions380
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 Report382 recommended that there be no change to the disqualification provisions.
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).
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
In New Zealand, section 7 of the Juries Act 1981 as amended386 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.387Consistently 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.
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.388In 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
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 Selection391 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.
