by Charles O'Mahony
The Law Reform Commission’s Consultation Paper on Jury Service launched by the DPP last week recommends removal of the discriminatory provisions in the Juries Act 1976 (as amended) which exclude persons with disabilities from jury service. The DPP was supportive of the recommendations of the Law Reform Commission in this regard. The general outline of the Consultation Paper and provisional recommendations are set out in this earlier HRiL blog post.
The First Schedule to the Juries Act 1976 provided that a “person who because of insufficient capacity to read, deafness or other permanent infirmity is unfit to serve on a jury.” This provision imposed a general exclusion of hearing impaired/deaf persons from undertaking jury service and by implication, sight impaired/blind persons from jury service. However, section 64 of the Civil Law (Miscellaneous Provisions) Act 2008 amended this provision as follows:
(a) an incapacity to read, or
(b) an enduring impairment, such that it is not practicable for them to perform the duties of a juror.
It is doubtful that “practicable” under section 64 refers to an obligation to provide reasonable accommodation that would assist a person with a disability to undertake jury service and carry out the duties of a juror. At any rate it has been indicated that since the enactment of the Civil Law (Miscellaneous Provisions) Act 2008 persons with hearing and sight impairment continue to be excluded from jury service on the basis of their disability. Section 64 does not address the issue of capacity as the determining factor to be eligible to undertake jury service and continues to leave open exclusion of persons with disabilities on the grounds of impracticality.
The Civil Law (Miscellaneous Provisions) Act 2008 is an extremely poor attempt to reform and update the law. The piecemeal, one dimensional, patchwork approach to reform of hugely important issues is to be avoided. The level of political debate on the scope of the amendments to Juries Act 1976 was poor to say the least. The scope of the amendment is unclear and it seems that the purpose of the amendment was to modernise the language that excludes persons with disabilities from jury service as opposed to actually reforming the law. In which case it would have been better to leave the offensive language in the Act as it was. There is no point in creating legal uncertainty solely with a view to making a discriminatory provision sound nicer.
United Nations Convention on the Rights of Persons with Disabilities
It is noteworthy that the Law Reform Commission in its Consultation Paper acknowledged that Ireland needed to address the eligibility of persons with mental illness and physical disabilities for jury service in terms of ratifying the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
Challenge to the Juries Act 1976
Back in the summer of 2008 the High Court heard a case taken by FLAC representing a Galway woman who challenged her exclusion from jury service under the Juries Act 1976. Astonishingly, nearly two years on the judgment in Clarke v Galway County Registrar and Attorney General, is still pending. (The case is listed for mention in the High Court on 14 April next.) Joan Clarke who has a significant hearing disability argued that she is entitled to reasonable accommodation in the from of a sign language interpreter in order to enable her to undertake jury service and she also sought a number of reliefs including:
- Certiorari quashing the decision of the County Registrar for County Galway and/or the Court Service excusing her from jury service.
- She also sought (if necessary) a declaration that the provisions on “Incapable Persons” in Part 1 of the First Schedule to the Juries Act 1976 as it relates to a hearing impairment/deafness are contrary to the Constitution and/or is incompatible with the provisions of the European Convention on Human Rights within the meaning of the European Convention on Human Rights Act 2003.
- She also sought a declaration that if a question arose in relation to her entitlement or eligibility to undertake jury service under the Juries Act 1976 then it should be an issue for the trial judge to decide in open court.
To read more on the case see the FLAC website here.
The Right to a Fair Trial in Ireland
Article 38.5 of the Irish Constitution guarantees the right to a jury trial. The case law of the Supreme Court demonstrates an insistence on the need for jury trials to be fair and the Irish courts have interpreted this right along side other constitutional rights to ensure that all trials apply fair procedures. It is of the utmost importance that all persons selected for jury service are competent in discharging the duties of jurors. However, a blanket ban excluding persons with disabilities’ from jury service is not the appropriate measure in ensuring the right to a fair trial.
Other jurisdictions have reformed their law to allow persons with disabilities to undertake jury service and this has not infringed the rights of accused persons. The law reform trend has been overwhelmingly to remove provisions that exempt or disqualify persons with disabilities from jury service. These reforms have been accompanied with judicial discretion to assess the capacity of people with disabilities for jury service having regard to the types of evidence that will be presented at trial. The trial judge is the best person to assess whether a juror with a disability (who is provided with reasonable accommodation) will be able to discharge the duties of a juror.
The Law Reform Commission’s Provisional Recommendations
The Commission provisionally recommends in its CP:
- that the Juries Act 1976 be amended to ensure that no person is prohibited from jury service on the basis of physical disability alone and that capacity be recognised as the only appropriate requirement for jury service
- that it should be open to the trial judge to ultimately make the decision having regard to the nature of the evidence that will be presented during the trial
- the provision of reasonable accommodations to hearing and visually impaired jurors to assist in undertaking the duties of a juror.
- a proper system for regulation and control of court interpreters be established
- safeguards in relation to the upholding of jury secrecy (e.g. re. sign language interpreters in the jury room)
- the Courts Service should prepare Guidelines on the reasonable accommodation of persons with physical disabilities in participating in the jury system
- the Courts Service provide disability awareness training to Court Service personnel dealing with jurors with disabilities
Mental Health and Jury Service
Ireland like many other jurisdictions exclude persons diagnosed with a mental disorder from undertaking jury service. Under the Part 1 of the First Schedule of the Juries Act 1976 a person with a mental illness is expressly ineligible for jury service if they are resident in a hospital or “other similar institution” or “regularly attends for treatment by a medical pratitioner”.
The scope of the ineligibility of persons with mental illness is misguided, too broad and in need of repeal. Persons attending their general practitioner and receiving medication for anti-depressants are excluded under the Act. There is no definition of “mental illness” under the Juries Act 1976 and the exclusion is based on status as opposed to the capacity of a person to undertake jury service. The Commission provisionally recommends in its CP that impaired mental health should not automatically exclude a person from jury service. Instead the Commission recommends that persons who consider that they unable to undertake jury service should apply for an excusal.
Intellectual Disability and Jury Service
The Commission also provisionally recommends that persons with “mental disability” as it is provided for under the Juries Act 1976 (intellectual disability) should continue to be excluded from jury service. Internationally the exclusion of this category of persons has remained and there has been no tangible appetite for reform. As with mental illness there is no definition of “mental disability” in the Act. It is clear that the underlying rationale for the exclusion of persons with intellectual disability is rooted in perceptions that such persons will not be capable of undertaking the role of a juror. The exclusion may also be rooted in concerns with the right to a fair trial. The Consultation Paper provides a good focus to discuss this issue and assess whether a blanket ban on persons with intellectual disabilities from undertaking jury service should remain.