Section 9 of the Juries Act 1976 provides that a county register “shall” excuse any person summoned for jury service who is one of the persons specified in Schedule 1, Part 2 of the 1976 Act and where that person informs the county registrar of his or her “wish to be excused.” The persons in Schedule 1, Part 2 who are thus “excusable as of right” from jury service are:
Members of either House of the Oireachtas
Members of the Council of State
The Comptroller and Auditor General
The Clerk of Dáil Éireann
The Clerk of Seanad Éireann
A person in Holy Orders
A regular minister of any religious denomination or community
Vowed members of any religious order living in a monastery, convent or other religious community
The following health care professionals if actually practising and registered:
A member of staff of either House of the Oireachtas, heads of Government Departments and Offices, any civil servant, any civilian employed by the Minister for Defence under section 30(1)(g) of the Defence Act 1954, the secretary to the Commissioners of Irish Lights and any person in the employment of the Commissioners, chief officers of local authorities, the head or principal teacher of the college of a university, of a school or other educational institution, and any professor, lecturer or member of the teaching staff of any such institution (on a certificate from a designated person that it would be contrary to the public interest to have to serve as a juror because he or she performs services of public importance that cannot reasonably be performed by another or postponed)
Whole-time students at a college of a university, of a school or other educational institution
Masters of vessels, duly licensed pilots, and duly licensed aircraft commanders
Persons aged 65 years or upwards
Persons on this list are, of course, eligible to serve as jurors if they so wish, but where they do not wish to they may inform the county registrar who must excuse them under section 9 of the 1976 Act.357
In approaching this aspect of jury service, the Commission has had regard to two related matters. In the first place, the group of persons who may be excused as of right comprises a significant proportion of the overall pool of about two million registered electors from which juries are chosen. Thus, to take some of the larger groups of persons involved in this list, there are in the order of 65,000 nurses in the State (on the active register of An Bord Altranais, the Nursing and Widwifery Board), about 60,000 teachers and lecturers in educational institutions (persons whose salaries are paid by the Department of Education), almost 30,000 civil servants, about 18,000 doctors (registered with the Medical Council), in the region of 4,500 pharmaceutical chemists (registered with the Pharmaceutical Society of Ireland), over 2,000 veterinary surgeons (registered with the Veterinary Council of Ireland) and about 2,000 dentists (registered with the Dental Council). This group amounts to almost 200,000 persons who are “excusable as of right” under the 1976 Act (to which would need to be added the other categories, such as those over 65 years of age).
A second important matter to which the Commission has had regard is that, in practice, many persons who are excusable as of right exercise the option not to serve as jurors under the 1976 Act. As already noted, the Commission’s discussions with consultees in 2012 confirmed that there is an attrition rate of between 60% and 70% of those summoned for jury service358 and that this can be broken down as follows. For about 10% of issued summonses, the summons is returned because for example the person has left the address or is deceased. A further 10% of persons who are summoned do not attend on the date specified in the summons. Another 20% to 25% are within the lists of persons who are excusable as of right, ineligible for jury service or disqualified arising from a criminal conviction. A further 20% to 25% are qualified and eligible to serve but are excused on the basis of the discretion to do so under the 1976 Act: the most common reasons for allowing a discretionary excusal are that the person is a full-time carer, has a medical procedure that cannot be postponed, work commitments (in particular where the person is self-employed) or because holidays have been booked. Apart from this administrative reality in terms of the number of jury summonses that must be issued in order to ensure that a sufficient number of persons are available for jury service, a former Director of Public Prosecutions has pointed out that another important effect is that “almost anybody with a professional qualification is either excluded or can claim to be excused.” He pointed out that “what one ends up with on a jury is not a group of 12 random citizens: it is a group of people are very heavily weighted towards the unemployed, students and housewives. It is not, generally speaking, a representative sample.”359
(2)Comparative Approaches
The 2001 Auld Review in England and Wales acknowledged that there might be good reasons for excusing people from jury service when they are required to perform important roles during the period specified in the summons.360 It concluded that there was no reason, however, why they should be entitled to be excused as of right “simply by virtue of their position.”361 The recommendations of the Auld Review were implemented in amendments to the Juries Act 1974 made by the Criminal Justice Act 2003. The position in England and Wales since 2003 is, therefore, that those summoned for jury service make an application for excusal in circumstances where they are unable to undertake jury service or where it would not be in the public interest. Summoning officers in the Jury Central Summoning Bureau (JCSB) consider all deferral and excusal applications. This is done on a case-by-case basis, having regard to the individual merits of the application. The approach of the summoning officers is to be fair to the applicant for excusal, while being consistent and attentive to the needs of the court in selecting a representative jury.
In its 2008 Consultation Paper on reform of the jury system in Scotland,362 the Scottish Government noted that the reforms in England and Wales had not led to the situation that those previously “excusable as of right” would henceforth serve on any jury for which they were summoned. It commented that “the pattern of the previous excusals as of right has, to some extent, been replicated, at least in relation to some of the more obviously public service-focused occupations in healthcare such as hospital consultants and doctors.”363 In its 2009 review of the consultation process that followed, as already noted the Scottish Government stated that it did not intend to amend the “ineligible for jury service” list, pointing out that the responses to the consultation did not indicate a strong appetite for change. This was also the case in respect of the list of those occupations that were eligible to apply for “excusal as of right.” 364
In Australia, there has been a significant reduction in the categories of those who are excusable from jury service in most of the states and territories. This has been influenced by the analysis made by a number of reviews of jury legislation. Thus, the 1994 Australian Institute of Judicial Administration review of jury management in New South Wales noted that the list of exemptions in that jurisdiction was too wide and that the exemptions were difficult to reconcile.365 Similarly, in 2007 the New South Wales Law Reform Commission recommended that individuals should not be entitled to excusal solely on the basis of their occupation, but that excusal should be decided on a case-by-case basis.366 As a result, since 2010 the legislation in New South Wales sets out a list of criteria that must be established in an individual case to excuse a potential juror.367 A similar position applies in Tasmania,368 Southern Australia369 and Queensland.370
In New York state, arising from the 1993 New York Jury Project,excusal from jury service is now granted on the basis of ill health (physical or psychological) or “undue hardship” and these are decided on a case-by-case basis.
(3)Consultation Paper Recommendations
In the Consultation Paper, the Commission provisionally recommended that the categories of persons excusable as of right under the 1976 Act should be repealed and replaced with a general right of excusal for good cause,371 and that evidence should be required to support applications for excusal.372
(4)Submissions and Final Recommendations
In the submissions received by the Commission and in the further consultations held with interested parties, there was general agreement that, as a result of the wide number of professions included in the category of “excusal as of right” only a small number of professionals actually serve on juries and that the effect was that some juries are composed of young persons and those over 65. It was acknowledged that persons are rarely prosecuted for failing to turn up for jury service.
There was general agreement that excusals as of right from jury service ought to be restricted. It was suggested that if this occurred, a discrete method should be available to those wishing to communicate information to the court as to the grounds on which excusal was sought. It was also accepted that self-employed persons, small business owners and those with caring responsibilities were likely to be able to continue to apply successfully for excusals on a case-by-case basis.
The Commission acknowledges that the current system of excusal on the basis of membership of a particular profession or by holding a particular position in Ireland is difficult to reconcile with the fundamental principle set out in Chapter 1 that the jury pool should be broadly representative of the community and that jury selection should, in general, be random in nature. The Commission is also of the opinion that the approach adopted in the 1976 Act is not sustainable, as the range of persons carrying out important functions across the public or private sectors varies from time to time to such an extent that it is not feasible to maintain a definitive list. In any event, the Commission is of the view that the maintenance of a list of persons who are excusable as of right is likely to give rise to confusion or a sense of arbitrary selection.
The Commission notes that section 9(2) of the 1976 Act confers a general power on the county registrar or, as the case may be, the judge to excuse a juror from attendance if that person shows “good reason” why he or she should be so excused. As already noted, the most common reasons for allowing a discretionary excusal are that the person is a full-time carer, has a medical procedure that cannot be postponed, work commitments (in particular where the person is self-employed) or because holidays have been booked.
It has been suggested to the Commission that merely putting forward these grounds is generally sufficient for excusal and that documentary evidence is not usually sought. The Commission considers that clear criteria should be in place to assess applications for excusal. A measure of flexibility would also have to be retained for a case-by-case analysis of particular circumstances. To this end, the Commission recommends that the Courts Service should prepare and publish guiding principles to assist county registrars in determining whether to grant or refuse the application for excusal. These could be based on the type of criteria developed in other jurisdictions.373 It should be necessary to support applications for excusal with sufficient evidence. It would not be unduly burdensome to require a person to provide a copy of a travel itinerary showing the dates of holidays booked, for example. Similarly, it is not unreasonable to require medical certification for doctor and dentistry appointments or other evidence that a person can easily obtain.
The Commission recommends that section 9(1) and Schedule 1, Part 2, of the Juries Act 1976, which provide for a list of persons excusable from jury service as of right, should be repealed and replaced with a general right of excusal for good cause, and that evidence should be required to support applications for excusal.
The Commission recommends that the Courts Service should prepare and publish guiding principles to assist county registrars in determining whether to grant or refuse the application for excusal for good cause.
