Jury Service (lrc 107-2013)
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- BScope of the Report
- COutline of the Report
ABackgroundThis Report forms part of the Commission’s Third Programme of Law Reform 2008-20141 and follows the publication of the Commission’s Consultation Paper on Jury Service.2 The Report, like the Consultation Paper, involves an examination of the law concerning how individuals are selected for jury service and related matters, currently set out in the Juries Act 1976 (as amended). Since the publication of the Consultation Paper, the Commission has received submissions from a broad cross-section of interested parties, and the Commission also held further consultative meetings during 2011 and 2012. The Commission expresses sincere thanks to all those who made submissions on this project and who participated in the consultative meetings. The submissions received, and the material generated through the meetings, have been considered by the Commission in the preparation of this Report, which contains the Commission’s final recommendations on this project. The submissions and consultative meetings reinforced the view of the Commission that there is a need for wide-ranging reform of this area of law. BScope of the ReportThe general scope of this Report remains broadly the same as in the Consultation Paper, namely, how people are selected for jury service and related matters. This includes: the process of jury selection based on the electoral register and the use of ICT; whether qualification for jury service should be extended beyond Irish citizenship; jury challenges; capacity and competence to carry out the functions of a juror; the categories of persons who are ineligible for jury service; persons who are excusable as of right from jury service; deferral of jury service; disqualification from jury service arising from criminal convictions; jury tampering; juror misconduct, including independent investigations such as internet searches; juror expenses; lengthy and complex jury trials; and empirical research on the jury process. The Commission accepts that, notwithstanding the breadth of the project, it does not encompass all aspects of the law concerning juries. Without attempting to set out a complete list, the Commission notes that the project does not include discussion of: the organisation of jury districts; the respective roles of the judge and jury; whether juries are sent home or sequestered during cases; jury deliberations; the unreasoned verdict; majority jury verdicts; or jury nullification. While each of these matters is of importance, and may merit separate examination, the Commission emphasises that they fall outside the scope of this project and Report. Bearing in mind the scope of the project, the Commission has approached this Report with a number of overlapping concerns in mind. Firstly, the Commission must have regard to the importance of the jury in the court system in Ireland, in particular that Article 38.5 of the Constitution of Ireland makes jury trial mandatory for most serious criminal offences.3 Second, as the Supreme Court emphasised in de Burca v Attorney General,4 the process for selection of juries must, under the Constitution, be broadly representative of society. Third, the Commission has taken into account that, since the decision in the de Burca case, a number of international human rights instruments have brought new dimensions to a contemporary analysis of jury trial. Fourth, the Commission has borne in mind the need to reinforce public confidence in jury deliberations, including the need to prevent any interference with juries and to prevent any misconduct by jurors. In Chapter 1, the Commission discusses in more detail the specific matters and principles that flow from the analysis of constitutional and international human rights. As to the actual nature of jury service, the Commission agrees with the analysis of Walsh J in the de Burca case that jury service is not an enforceable individual right, but should be more accurately described as a duty that falls on members of the population of the State. Nonetheless, the Commission considers that jury service should be valued and supported to the greatest extent possible by the State, and that any proposed reforms to the legislative framework should also have regard to the principles set out in Chapter 1. The Commission now turns to provide a brief overview of the Report.
In Chapter 2, the Commission examines the jury selection process and also considers whether to extend qualification for jury service to persons other than Irish citizens. The Commission first examines the process for jury selection, which is currently based on the register of Dáil Éireann electors, and explores whether any viable alternative jury source list might be considered and also discusses the role played by technology in the process. The Commission then considers whether qualification for jury service should be extended to persons other than Irish citizens, particularly in the light of significant increases in recent years in the percentage of the population of the State who are non-Irish citizens. This discussion relates to a number of key principles set out in Chapter 1, in particular whether the current jury pool can continue to be regarded as broadly representative of the community and related principles as to whether expansion of the jury pool to non-Irish citizens would affect the fairness of jury trials. In Chapter 3, the Commission examines jury challenges, that is, objections made to jurors after they have been drawn from the panel of potential jurors but before they have been sworn as jury members. The Juries Act 1976 currently provides for two types of challenge: challenges without cause shown, sometimes referred to as peremptory challenges, which involve objections made without putting forward a stated reason; and challenges for cause shown, that is, objections based on putting forward a specific reason. The 1976 Act permits each participant in a criminal or civil trial to make seven challenges without cause and, because of this, in practice there are very few occasions in which challenges for cause are made. The Commission examines the two types of challenge by reference to comparable processes in other jurisdictions and then sets out its final recommendations. In Chapter 4, the Commission discusses three matters related to the capacity or competence of potential jurors to carry out their functions as jurors. The Commission first discusses the eligibility of prospective jurors whose physical capacity may require reasonable accommodation to serve on juries. The Commission then considers candidate jurors whose mental ill-health may affect their competence to carry out jury duty. The Commission then discusses the separate question as to whether a person’s decision-making capacity may affect his or her competence in this respect. The Commission also examines the issue of linguistic capacity and communication. In respect of each of these areas, the Commission notes that one of the guiding principles set out in Chapter 1 of particular relevance is that, in order to meet the requirements of the Constitution concerning a fair trial and comparable provisions in international human rights instruments, jurors should have certain minimum standards of personal capacity and competence, which may require reasonable support and accommodation that do not involve a disproportionate or undue burden. In Chapter 5, the Commission examines the extent to which specific categories of persons should be regarded as ineligible for jury service and to what extent other categories of person may be excused from service. The Commission examines the current categories of persons who are ineligible for jury service, which comprises the President of Ireland, a specific list of persons connected with the administration of justice (including judges, lawyers in practise and members of the Garda Síochána) as well as members of the Defences Forces. The Commission then examines the group of persons who may be excused as of right from jury service, including health care professionals (such as doctors, nurses and veterinary surgeons), civil servants, ordained clergy and teachers. The Commission discusses whether this approach to excusal should be replaced with a general provision on excusal for good cause, which is currently available to any person who does not come within the category of persons who are ineligible or excusable as of right. The Commission also discusses proposals for deferral of jury service to complement the provisions on excusal for good cause. In Chapter 6, the Commission examines the provisions in the Juries Act 1976 on disqualification of persons from jury service primarily because they have been convicted of certain offences. The Commission then discusses the link between disqualification and the approach taken to expunging criminal records under a spent convictions regime. The Commission also discusses the related process of vetting jury lists to identify persons who are disqualified. In Chapter 7, the Commission examines jury tampering and considers possible reforms aimed at preventing it. This issue concerns the principle, discussed in Chapter 1, that the right to a fair trial requires a jury that is independent and unbiased. The Commission discusses the relevant common law and statutory offences that deal with jury tampering. The Commission also discusses the extent to which non-jury courts have been used to address jury tampering. The Commission then considers the concern expressed that the provisions in the Juries Act 1976 that permit access to jury lists may, indirectly, facilitate jury tampering. In Chapter 8, the Commission examines to what extent current law is sufficient to deal with the risk of juror misconduct, in particular the risk that a juror may engage in independent investigations, such as searching for information about the case on the internet or visiting a crime scene alone. This involves the application of two principles discussed in Chapter 1, the right to a fair trial and that the jury must be unbiased. The Commission discusses whether the juror’s oath to arrive at a verdict “according to the evidence” is sufficient to prevent such misconduct and a related issue, to what extent the publicity surrounding a case could affect the fairness of a trial. In Chapter 9, the Commission examines to what extent juror remuneration and expenses could assist in supporting and encouraging jury service. In Chapter 1, the Commission points out that jury service is correctly described as a civic duty rather than a right but it is nonetheless important that jurors should be encouraged to perform this civic duty and that any disadvantage should be minimised as far as possible. In this Chapter, the Commission examines the current position on remuneration before setting out its final recommendations on this aspect of jury service. In Chapter 10, the Commission examines the challenges posed for jurors in complex or lengthy trials where they are presented with information such as DNA evidence in a murder trial or financial information in a fraud trial. Allied to the complexity of the information presented is that such trials may also extend to months rather than days or weeks. The Commission examines whether non-jury trials or special juries should be used in cases of complexity or in lengthy trials and concludes that before considering these and thereby creating another exception to the general right in Article 38.5 of the Constitution to jury trial, other procedural solutions should first be considered. The Commission therefore discusses three procedural alternatives, namely, the selection of more than 12 jurors, the use of assessors and the provision of specific information in written form to assist juror comprehension. In this respect the Commission addresses, in particular, the principle discussed in Chapter 1 that in order to ensure the right to a fair trial, jurors should have certain minimum standards of personal capacity and competence, which may require reasonable support and accommodation. In Chapter 11, the Commission examines whether provision should be made for empirical research into the functioning of the jury system and, if so, to what extent. The Commission examines the current position on the secrecy of jury deliberations in Ireland, which is one of the key principles discussed in Chapter 1. The Commission discusses comparative approaches to this question, before setting out its final recommendations concerning the benefits and scope of empirical research. Chapter 12 contains a summary of recommendations made by the Commission. The Appendix contains a draft Juries Bill to implement the recommendations in the Report and to consolidate the other provisions currently contained in the Juries Act 1976.
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