The Commission now turns to examine in detail the essential components of jury service in Ireland, in particular those related directly to this Report. The Commission examines these by reference to the analysis in the de Burca case, as well as more recent decisions and relevant international human rights instruments. These key elements are: the nature of jury service, the representative nature of juries, based on random selection from a pool of potential jurors; juries as impartial and independent; the jury as independent fact-finder, guided by the judge on matters of law; the requirement of juror ability or competence; and the extent of the secrecy of jury deliberations.
(1)Jury service as a duty
In the de Burca case, Walsh J described jury service as follows:49
“It surely follows from the constitutional obligation to have jury trial that jury service is an obligation that must fall upon such members of the population as the State, by its laws validly enacted under the Constitution, designates as being the persons liable for such duty or qualified for such duty.”
The Commission agrees with the analysis of Walsh J that jury service is not correctly described as involving an enforceable individual right; it can more accurately be described as involving 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 reforms of the current legislative framework should, equally, have regard to this.
(2)Representative Nature of Juries: Random Selection from a Pool of Potential Jurors
Representativeness encompasses the concepts of random selection and independence. This means that juries are intended to be composed of a representative cross-section of the community, which is ensured through the process of random selection from a pool of potential jurors, and which thereby promotes the independent nature of the jury, and society’s participation in the institution. In de Burca v Attorney General50Henchy J described the jury as a group of people:
“who, chosen at random from a reasonably diverse panel of jurors from the community, will produce a verdict of guilty or not guilty free from the risks inherent in a trial conducted by a judge or judges only, and which will therefore carry with it the assurance of both correctness and public acceptability that may be accepted from the group verdict of such a representative cross-section of the community.”
Referring to the effective exclusion of women from jury service, Henchy J stated in de Burca that:51
“Whatever may have been the position at common law or under statute up to recent times, it is incompatible with the necessary diffusion of rights and duties in a modern democratic society that important public decisions such as voting, or jury verdicts involving life or liberty, should be made by male citizens only. What is missing in decisions so made is not easy to define; but reason and experience show that such decisions are not calculated to lead to a sense of general acceptability, or to carry an acceptable degree of representativeness, or to have the necessary stamp of responsibility and involvement on the part of the community as a whole.”
“a jury which is tailored to the circumstances of the particular case, whether relating to the sex or other condition of the defendant or to the nature of the charges to be tried, provided that the jury be indiscriminately drawn from those eligible in the community for jury service... It might happen that a jury drawn by lot would include no women or, indeed, no men; but that would not invalidate the jury.”
When the Northern Ireland Court Service carried out a public consultation between 2008 and 2010 on widening the jury pool under the Juries (Northern Ireland) Order 200653 it noted that the “vast majority of respondents agreed with the overall objective of widening the jury pool to ensure that it is fully representative of society.”54
A related issue of representativeness in the State concerns Article 8 of the Constitution. Article 8.1 provides that the Irish language as the national language is the first official language of the State and Article 8.2 provides that the English language is recognised as a second official language. (The Irish language version of Article 8.2 provides: “[g]lactar leis an Sacs-Bhéarla mar theanga oifigiúil eile.”) In MacCarthaigh v Éire,55 while the Supreme Court reiterated the importance of the representative nature of the jury, it rejected the argument that, in conducting a trial through the Irish language, the right to jury trial included the right to a jury composed of individuals with an adequate knowledge of the Irish language.
The issue of racial representativeness arose in the English case R v Smith.56 The defendant, a black man, had been charged with assaulting a white man outside a night club. He was tried by, and convicted by, an all-white jury. He argued that the selection procedures under the English Juries Act 1974 were incompatible with the right to a fair trial in Article 6 of the European Convention on Human Rights (ECHR). The English Court of Appeal dismissed his appeal against conviction. The Court referred to the case law of the European Court of Human Rights (ECtHR), including Sander v United Kingdom,57in which a juror had made a racist remark about the defendant, which was reported to the trial judge, who allowed the trial to proceed. The ECtHR held that, in these circumstances, the defendant’s right to a fair trial under Article 6 of the ECHR had been breached. In R v Smith, the Court of Appeal noted that the legitimacy of the jury system or the procedure by which juries are selected had not been questioned in Sander by the ECtHR. The Court also added that “[n]othing arose in the present case to suggest that the members of the jury were not performing their duty, in accordance with their oath, to try the case impartially.” The Court rejected the argument that a fair-minded and informed observer would regard it as unfair that the defendant was tried by a randomly selected all-white jury or that the trial could only be fair if members of the defendant’s race were present on the jury. The Court therefore concluded that the defendant’s trial was not in breach of Article 6 of the ECHR. The Court added:58
“It was not a case where a consideration of the evidence required knowledge of the traditions or social circumstances of a particular racial group. The situation was an all too common one, violence late at night outside a club, and a randomly selected jury was entirely capable of trying the issues fairly and impartially. Public confidence is not impaired by the composition of this jury.”
Thus, representativeness means that the panel of potential jurors from which a jury is selected should reflect the composition of society, but it does not mean that the resulting jury actually chosen for a specific case will do so. In general terms, a jury of 12 men or of 12 women, or an all-white jury, would be permissible, provided the jury panel from which they were selected was representative. This general approach is subject to the requirement of impartiality to which the Commission now turns.
(3)Impartial and Independent Nature of Juries
The Victorian Law Reform Commission has stated that maximising the representativeness of juries should “promote impartiality by reflecting a greater cross-section of community experience (and prejudice) so that no one view dominates.”59 Nonetheless, jury representativeness and impartiality are distinct concepts.60In this respect, jury partiality or bias can be divided into two main categories: interest prejudice (having a pecuniary or personal interest in outcome of case) and specific prejudice (having attitudes about specific issues which prevent the juror from rendering a verdict with an impartial mind).
In The People (Attorney General) v Singer,61 a complex fraud trial arising from an alleged “Ponzi” or pyramid investment scheme, it emerged that the foreman of the jury had been an investor in the defendant’s scheme. The Court of Criminal Appeal therefore set the conviction aside for this reason (among others):
“The whole purpose of jury-trial is third-party judgment, judgment by indifferent persons... The victim is not to be thought of as indifferent, and his presence on the jury manifestly offends against the concept of fair trial – the essence of which is third party judgment – however honestly he should strive to discharge his duty as juror.”62
The question of bias was also considered in People (DPP) v Tobin,63 a trial for rape and sexual assault, during which it came to light that one juror had experienced sexual abuse in the past. On receiving assurances regarding the impartiality of the juror from the foreman of the jury, the trial judge elected to take no further action.64 The conviction was set aside by the Court of Criminal Appeal, which noted:
“a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his or her personal experience and, for that reason, the appellant might not receive a fair trial. Moreover, even jurors without similar experience of sexual abuse might well be influenced by sympathy for a fellow juror who had suffered, at the hands of another, the type of abuse with which the accused was charged.”65
The test of reasonable apprehension of bias set out in the Tobin case is also found in the case law of the ECtHR on the right to a fair trial by an impartial tribunal in Article 6 of the ECHR. InSander v United Kingdom66a juror made a racist remark about the defendant, which was reported to the judge, but he did not discharge the jury because they signed a note disowning any racist remarks made. The jury convicted the defendant. The ECtHR accepted that the personal impartiality of jurors must be presumed until there is proof to the contrary, as is the case for judges.67 Nonetheless, the ECtHR concluded that the defendant’s Article 6 rights had been violated because an objective observer might have doubts about the impartiality of the jury in that specific case. The Court found that the nature of the remarks was such that a direction by the trial judge to ignore them was not sufficient to undo the damage caused.
Jury impartiality, however, does not require that individual jurors should rid their minds of all opinions, beliefs, and other life experiences when undertaking their role. Thus, juror impartiality and independence involves judgment by persons who have no direct involvement in the trial or who, from an objective standpoint of the reasonable observer, would not be regarded as partial or biased; but the concept of impartiality also assumes judgment by persons of independence, with opinions and beliefs and other experience of the realities of living in today’s society.68
(4)Jury as independent fact-finder, guided by the judge on matters of law
In O’Callaghan v Attorney General,69 the Supreme Court stated:
“The purpose of trial by jury is to provide that a person shall get a fair trial, in due course of law and be tried by a reasonable cross section of people acting under the guidance of the judge, bound by his directions on law, but free to make their findings as to the facts. The essential feature of a jury trial is to interpose between the accused and the prosecution people who will bring their experience and common sense to bear on resolving the issue of guilt or innocence of the accused.”
Thus, the judge ensures that proper procedures are observed, determines matters of law such as the admissibility of evidence and directs the jury on the legal principles and rules they are to observe. Nonetheless, reflecting the view taken in the 17th Century in Bushell’s Case, the jury are the independent arbiters of all disputed issues of fact and, in particular, the issue of guilt or innocence. Thus, while a judge might very well consider that, on the evidence presented in a specific case and the law to be applied by the jury, the accused should be convicted, nonetheless it would not be appropriate for the judge to direct the jury to bring in a guilty verdict. In The People (DPP) v Davis,70 the Supreme Court thus held that a judicial direction requiring the jury to return a verdict of murder was an unconstitutional usurpation of the jury’s function.
(5)Juror Ability or Competence
In the de Burca71 case Walsh J stated that the Constitution “does not preclude the Oireachtas from enacting that prospective jurors should have certain minimum standards of ability or personal competence without which jury trial might fail to serve as an essential part of the administration of the criminal law.” The Law Reform Commission of New Zealand has stated that one of the four goals of jury selection is competence: “individual jurors should be competent in the sense that they are mentally and physically capable of acting as jurors in the trial.”72
Competence also encompasses the effectiveness of the jury as a fact-finding tribunal.73 The New South Wales Law Reform Commission has argued that a jury system that is “broadly representative” has the benefit of producing more competent juries “because of the diversity of expertise, perspectives and experience of life that is imported into the system.”74
The Law Reform Commission of Western Australia commented that “[i]t is perhaps self-evident that individual jurors should be competent in the sense that they are mentally and physically capable of acting as jurors in the trial.’”75 Article 13 of the 2006 UN Convention on the Rights of Persons with Disabilities (“UNCRPD”), which, at the time of writing, Ireland has signed but not ratified, provides that States Parties are required to ensure effective access to justice for persons with disabilities on an equal basis with others. The UNCRPD defines reasonable accommodation as: “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”76 While the State is not at present bound by the provisions of the 2006 UNCRPD, it has indicated that it will ratify the Convention in the near future, and the Commission therefore considers that it should have regard to the Convention, including the principle of “reasonable accommodation.” The Commission agrees with the Law Reform Commission of New South Wales that: “fairness of the trial takes precedence over the potential rights of a prospective juror. However, prospective jurors should not be lightly excluded from an important civic duty. It is important to ask whether the administration of justice is adversely affected by denying the contribution that some in the community would be willing and able to make, and whether thereby the representativeness of the jury is compromised.”77
In summary, the Oireachtas is entitled to stipulate that jurors must have a minimum level of ability and personal competence in order to ensure the effectiveness of the jury as a fact-finding tribunal and, therefore, the right to a fair trial. Juror competence is reinforced by having a broadly representative pool from which to select jurors, and such competence may require the provision of reasonable accommodation, as set out in the 2006 UNCRPD.78
(6)General Secrecy of Jury Deliberations
In de Burca v Attorney General,79 Walsh J commented that “the jury should be free to consider their verdict alone without the intervention or presence of the judge or any other person during their deliberations. I think it also imports an element of secrecy.” This was emphasised again by the Supreme Court in O’Callaghan v Ireland,80 in which O’Flaherty J stated that the “deliberations of a jury should always be regarded as completely confidential” and therefore that the “deliberations of a jury should not be published after a trial.”
The principle of jury secrecy thus relates to ensuring that that there is no interference with the deliberations of the jury, reinforcing the independence of the jury.81 It does not preclude, for example, members of the jury from disclosing inappropriate behaviour in the jury room, such as the racist comments referred to in Sander v United Kingdom.82
(7)Summary of Key Principles
In conclusion, the Commission considers that the following key principles arise from the discussion in this Chapter.
Jury service is more accurately described as a duty which falls upon members of the population of the State rather than as a right of an individual in the State.
Juries should be selected from a pool or panel broadly representative of the community, having regard to the provisions on criminal trials in Article 38.1 and 38.5 of the Constitution of Ireland.
Jury representativeness refers not to the actual jury selected but rather to the pool or panel of persons from which juries are selected.
Jury legislation may validly exclude certain persons from the jury pool or panel, provided this does not infringe specific constitutional provisions.
Historical restrictions on, or effective exclusions of, groups from the jury pool or panel do not necessarily meet current constitutional requirements for representative juries.
Restricting the jury pool to property owners, and the effective exclusion of women from the jury pool, is not constitutionally permissible, even though it was historically a feature of juries legislation.
While the panels need not, as a constitutional requirement, match exactly the community at any given time, they should be reviewed to determine whether the general jury pool from which persons are being selected for jury service no longer reflect the community as a whole.
Jurors should be both impartial and independent (and appear to be so, using an objective test) in carrying out their functions, in accordance with the requirements of the Constitution and comparable international human rights instruments concerning a fair trial.
The jury is as independent fact-finder, bound by the judge’s directions on matters of law, but free to make their findings as to the facts in a case, including on the guilt or innocence of a person in a criminal trial.
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.
The jury should be free to consider their verdict in secrecy in the sense that they do so without the intervention or presence of the judge or any other person during their deliberations; but this does not preclude certain disclosures, for example, inappropriate behaviour in the jury room.
The Commission considers that these principles are of relevance to the detailed discussion of the specific matters addressed in the remaining chapters of this Report.
