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.
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.
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.
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
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.
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.
In The People (DPP) v Dundon417 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.
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.
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.
