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
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
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
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
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
(2)Review of submissions received
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.
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.
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.
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.
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.
Consultees also approved the proposal that the vetting of jury lists be placed on a transparent statutory footing.
(3)Final Recommendations
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.
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 Selection404 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).
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.
As to non-custodial sentences, the Commission also confirms the view expressed in the Consultation Paper407 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.
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.
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.
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.
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).
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).
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.
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.
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.
