The long-awaited decision in the Joan Clarke case was given in the High Court this week. The case taken by the Free Legal Advice Centre (FLAC) was heard in the High Court over two years ago. It involved a challenge to a decision of a court registrar to exclude a deaf woman from jury service even though she was willing to undertake jury service and requested a reasonable accommodation (in the form of a sign language interpreter) in order to do so. See the Irish Times coverage here, the FLAC briefing note here and a previous blog here.
Since the Joan Clarke case was heard the Civil Law (Miscellaneous Provisions) Act 2008 made a number of cosmetic changes to the Juries Act 1976, including the provision on the exclusion of deaf persons from jury service in the First Schedule. Legislators, instead of trying to change the law excluding persons with disabilities from jury service, opted instead to change the language of exclusion to make it more palatable. This was a missed opportunity to address important issues.
Internationally the law reform trend has been overwhelmingly in favour of removing provisions exempting or disqualifying persons with disabilities from jury service. The changes in law reflect changes in mindsets, which now recognise that persons with disabilities make competent jurors and enhance the representativeness of the jury pool. 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. In March the Law Reform Commission made a number of progressive provisional recommendations in its consultation paper on jury selection that recognise the developments in other jurisdictions. The Commission recommended that the Juries Act 1976 be changed to ensure that no person is prohibited from jury service on the basis of physical disability. Instead, ability to carry out the duties of a juror should be the appropriate requirement when considering eligibility. The Commission also recommended that the Court Service provide reasonable accommodations to enable persons with disabilities’ undertake jury service.
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 alongside other constitutional rights to ensure that all trials apply fair procedures. It is hugely important that all persons selected for jury service are competent in discharging the duties of jurors. However, laws and interpretations of laws that exclude persons with disabilities from jury service are not the appropriate measure in ensuring the right to a fair trial. The international experience is that the right to a fair trial is not compromised when a person with a hearing impairment is selected.
This issue is not just limited to the exclusion of persons with physical disabilities from jury service. Ireland, like other jurisdictions exclude persons diagnosed with a mental disorder from carrying out jury service. Under 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 practitioner”. The scope of the ineligibility of persons with mental illness is based on misguided perceptions of mental illness and is in need of repeal. Its application is too broad; for example, a person attending a general practitioner and receiving medication for depression is excluded under the 1976 Act. There is no definition of “mental illness” under the Act and the exclusion is based on status as opposed to the capacity of a person to undertake jury service.
Ireland is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). As part of the ratification process Ireland is reviewing its laws to make them compliant with its obligations under the Convention. Clearly the eligibility of persons with mental illness and physical disabilities for jury service needs to be addressed as part of that process as it has been in other countries such as New Zealand. The law as is currently stands discriminates against persons with disabilities and excludes them from jury service. The decision of the High Court in the Joan Clarke case unfortunately does not improve the situation. The law needs to be clarified to provide for the participation of persons with disabilities in jury service, this needs to be accompanied with an express provision of reasonable accommodation to enable participation.
