As noted in Chapter 1, jury service is correctly described as a civic duty rather than a right. Nonetheless, given the critical function served by juries in the justice system, it is important that jurors should be encouraged to perform this civic duty and that any disadvantage should be minimised as far as possible. In Chapter 2 of the Report, the Commission explored the extent to which the greater use of technology could assist in this. In this Chapter, the Commission examines to what juror remuneration and expenses could assist in supporting and encouraging jury service. In Part B the Commission examines the current position in the Juries Act 1976 and the position in other jurisdictions. In Part C the Commission reviews the provisional recommendations made in the Consultation Paper, the views expressed during the consultation process and then its final recommendations on this aspect of jury service.
FFCurrent Position in Ireland and Comparative Approaches
(1)Juror compensation in the Juries Act 1976
The Committee on Court Practice and Procedure’s 1965 Report on Jury Service recommended that jurors should be “remunerated on a reasonable basis”, that this should include any overnight accommodation certified by the trial judge, and that this cost should be borne by the State.530 This recommendation, other than on overnight accommodation after jury deliberations begin, was not implemented in the Juries Act 1976. Instead, section 29 of the 1976 Act provides that when an employee or apprentice who is absent from his or her place of work in order to comply with a jury summons this absence is to be treated as if the person was at work. This ensures that the salary of the person called for jury service must be paid by the employer rather than by the State. Section 29 also provides that any provision in an employment contract or agreement which would have the effect of excluding or limiting the liability of an employer in respect of the payment of salary or wages during an absence for jury service is void.
The present system of remuneration has been criticised on the basis that requiring an employer to continue to pay a salary during the employee’s absence places a burden on all employers. This is particularly the case for small businesses, which account for over 50% of employees in the State, that is, about 900,000 people. A small business is not only liable to pay the salary of an employee who is on jury service but may also sometimes be required to hire temporary staff cover. As discussed in Chapter 2, above, a county registrar has a discretion under section 9(2) of the Juries Act 1976 to excuse from jury service for good cause and it has been suggested that persons who can establish that their employer would suffer significantly due to the absence of employees are regularly excused on this basis.531
The Commission also notes that section 29 of the 1976 Act deals with employees only, so that a self-employed person’s income is not provided for when he or she is on jury service. Research in other jurisdictions suggests that small business owners and the self-employed often cite the financial hardship that jury service would cause in support of an application to be excused from jury service.532 While there is no comparable research in Ireland, the Commission understands from its discussions with interested parties that self-employed persons often ground applications for excusal from jury service on the basis of economic hardship, and that self-employed people are underrepresented on juries as a result. The self-employed number over 100,000 persons in Ireland, which is a significant proportion of the total available jury pool of 3 million adults.
The Commission notes that direct State provision for jury service is thus primarily confined to the provision of tea, coffee and biscuits in jury reception areas and jury rooms, lunches where required and overnight accommodation where necessary. As well as imposing a duty on employers to pay the salary of an employee who is on jury service, the State does not provide for the travel costs of a juror to or from a courthouse or any other out-of-pocket expenses such as parking fees.
(2)Comparative Approaches to Juror Expenses
Jurors in Northern Ireland are entitled to claim for loss of earnings or benefits and for expenses as a result of attendance for jury service.533 A juror is entitled to a travel allowance for public transport or for the use their private vehicle. This also covers taxi costs where prior approval has been given to by the Juries Officer. Payments for parking fees are available where they have been reasonably incurred. A juror is also entitled to a meal allowance where a meal is not provided by the Courts Service.
In England and Wales there is provision for the payment of allowances to jurors and for the payment of travel expenses and subsistence.534 Jurors are also permitted to claim for any financial loss suffered as a direct result of jury service: this will cover loss of earnings or benefits, fees paid to carers or child minders, or other payments which have been solely due to jury service. Employers are not obliged to pay compensation, and where they choose not to, the state bears the burden of the cost.
In Scotland jurors are entitled to payment in respect of loss of earnings or benefits, travel,535 subsistence,536 child-minding/babysitting expenses and some other expenses incurred as a result of jury service.537 The entitlement for loss of earnings or benefits is for the period of jury service and where the employer does not pay the juror’s wages or where a benefit is withdrawn and the juror suffers financial loss. As in England and Wales, employers are not under any obligation to pay compensation. This is particularly relevant to the self-employed as they may be forced to hire locum cover.
In the Australian state of Victoria jurors are entitled to allowances for attendance and travel.538 A daily allowance (regardless of whether the juror has actually served or not) is payable for the first 6 days. In New South Wales, the daily attendance allowance payable to jurors varies according to the length of the trial.539 This payment is made to all jurors at the same rate regardless of their employment status.540
In New Zealand jurors receive a flat rate payment for jury service. Jurors are also paid for their travel expenses on public transport. There is increased payment for jurors in exceptional circumstances. Jurors are also entitled to claim for the actual and reasonable costs of childcare incurred.541 The New Zealand Law Commission examined the issue of juror payment in its review of the jury system.542 The Commission recommended that jurors should continue to be paid at a flat rate but that the registrar should have the discretion to increase the payment to cover or contribute to the actual loss.543In addition, the Commission recommended the introduction of a criminal offence to cover a situation where an employer terminates or threatens to terminate the employment of an employee because of jury duty.
In the United States, federal courts provide payment for jury service in respect of both grand juries and petit juries.544 Jurors sitting on federal cases are paid a flat daily rate for jury service.545 In most courts, jurors are also reimbursed for reasonable transportation expenses and parking fees. However, there is no provision requiring employers to pay their employees for their time spent on jury service. All States in the US have passed laws that protect employees from discharge as a result of absence for attending jury service. In addition, a number of states have introduced laws that provide a daily allowance for jury service.546 These limit the amount of time for which an employee must be paid. They also restrict the requirement to full time and/or public sector employees. Most of these laws permit an employer to deduct the employee’s daily juror payment against their wages. In 2003, the American Legislative Exchange Council (ALEC)547 developed a model Jury Patriotism Act intended to ease the financial loss experienced by jurors, particularly those who serve on long trials and it is aimed at supporting the available pool of jurors. One of the provisions of the Jury Patriotism Act is the creation of a court-administered Lengthy Trial Fund, which is supported by revenue from court filing fees and jurors can apply for compensation for lost wages. At least 14 states have enacted a version of the Jury Patriotism Act that includes the Lengthy Trial Fund.548
