Juries

General

Juries are an ancient institution dating to the Middle Ages.  Under the late 1980s juries were used in most tort / civil wrong  cases in the High Court , including personal injuries actions for negligence.  The Courts Act 1988 curtailed severely the role of juries in civil matters.

The right to a trial before a judge and jury for a for non-minor (serious) offence is guaranteed by the Constitution.  The Constitution also provides the exception which facilitated the establishment of the Special Criminal Court to hear limited canopies of cases where jury trials would carry risk of intimidation and subversion. The exact make up of a jury is not specified by the Constitution.

The purpose of the jury is to provide a trial by a reasonable cross-section of persons.  The jury decides questions and fact under the direction of the judge.  The judge decides questions of law and instructs the jury.  The notion behind the jury is that members of the accused’s (the parties’) community,  bring their own common sense and experience in determining the question of guilt or innocence, or in civil case, the issue of liability.

This present Juries Act 1976 was passed after the earlier 1927 Act was found to be unconstitutional.  In particular it violated the guarantee on equality in that its membership was  based on the rateable valuation and ownership / occupation of property and excluded women from jury lists unless they specifically opted in.  This breached the equality provisions and  violated the accused right to a jury from a fair cross-section of the community.

Eligibility

Every citizen aged 18 years and upwards entered on the electoral register in the jury district, is qualified and liable and serve on a jury unless he is ineligible or disqualified.  The legislation sets out persons who are ineligible and disqualified.

Ineligible persons

• include judges,
• persons involving the administration of justice,
• the Attorney General,
• practising barristers and solicitors,
• solicitors’ trainees  and other persons employed in the legal work in a solicitors’ offices,
• the President and related persons,
• members of An Garda Síochána,
• prison officers and persons employed in prisons,
• members of the Defence Force,
• persons involved in probation services
• members of the reserve Defence Forces,
• persons incapable of reading or having an enduring impairment  such that it is not practicable for them to perform the duties of a juror
• persons suffering from mental illness or physical illness and thereby resident in a hospital or similar institution or regularly attending treatment by a medical practitioner.

A person shall be disqualified from jury service

• if he has been sentenced to imprisonment for life or a term of five years of more or to detention in a children’s institution.
• If he has at any time in the last ten years served a sentence of imprisonment of at least three months or in a children’s detention institution.

Excusing Persons

Certain categories of persons may be excused upon request to the County Registrar.

• a person who shows that he has served on a jury or attempted to serve on a jury within the last three years
• a person who shows that he has been excused from service for a period which still runs.

The county registrar may exclude persons who have been summoned from attendance during the whole or part of setting if that person shows that there is good reason why he should be so excused.  Where a person is unable or owing to illness or other reason to make any representation to the County Registrar, another may do so on his behalf.  A person who is refused excuse, may appeal to the  court to which he has been summoned.

Where a person is required to attend as a juror, the judge may excuse him on the same basis from further attendance on the same basis as on which the Country Registrar may excuse attendance.  The judge may also excuse a juror for good cause during the course of a trial from further service in the trial.  At the conclusion of a trial of an especially exacting nature, the judge may excuse the members of the jury for such period from jury service, as is specified.

Certain persons may apply to be excused on the basis of their office or roles.  They include members and officers of the Oireachtas,

• persons in holy order, religious ministers,
• members of a religious order living in a monastery, convent or religious community.

The following persons, if  actually practising their professions.

• doctors,
• dentists,
• midwives,
• veterinary surgeons,
• pharmaceutical chemists
• nurses

State Sector Certified Excusing

Government departments may issue certificates for civil servants, top the effect that it would be contrary to the public interest that they serve as a juror, because they provide essential and urgent services of public importance that cannot be performed by another or postponed.

Similar provisions apply in respect of

• civilian employees of the Defence forces
• employees of the HSE.

The head of any school, university or education institution may similarly certify that the services of the relevant teacher or employee cannot reasonably be performed by another or postponed . Similar provisions apply in respect of masters of vessels and licensed aircraft commanders.

Whole time students at educational institutions may be excused.

Selection / Empanelling

Where it appears to a court that a juror required to try to an issue may not be sufficient, the judge may require further persons to be summonsed to make up the numbers.  He may  specify the area where  persons may be summoned which may be the vicinity of the court. The  method of summons may by written office or otherwise.  In such cases there is no appeal from the summons by the County Registrar.

The selection of persons empanelled  as jurors to serve on a particular jury is made by balloting in open court.  Before the selection is made, the judge is to warn the jurors that they must not serve if they are ineligible or disqualified.  Persons who know they are disqualified or have a doubt, must communicate this fact to the judge if selected on the ballot. The foreman of the jury is chosen by the jurors and is made at the time the judge directs.

Persons are entitled to reasonable facilities to inspect the panel of jurors free of charge.  The parties to proceedings, civil or criminal, are entitled to a copy free of charge from the County Registrar upon application.  These rights may be exercised both between the issue of the summons of the close of the trial.

The panel of jurors and supplemental panels are prepared in advance of sitting. It is not necessary to indicate any persons who have been served  have been excused in the meantime.

Juries are sworn in separately.  The ordinary  manner of swearing in is with a religious oath. A person may object to swearing in, in this manner.  He may be sworn in under another religious oath as he has been neither Christian nor Jewish.  A juror  may make an affirmation instead of a religious oath.

Challenges

Challenges to a juror are to be made immediately after his name is called out and before administration of the oath.  A person who refuses to be sworn or insists on being sworn in a manner not permitted by the Act, is not included in the jury then being sworn.

In every civil and criminal trial with the jury each party, and in the case of criminal cases, the prosecution and each accused may challenge up to seven jurors without cause.  Where there are challenged, they will not be included in the jury.

In every civil and criminal trial, any party may challenge for cause any number of jurors.  Cause must be immediately shown when the challenge is made.  The judge shall allow or disallow the challenge on the spot.

Course of Trial

The judge may order that the jury shall view any place where it is expedient for the purpose of the trial that the juror should see it.  If this occurs the judge will adjourn to the relevant place with the jurors. In a criminal trial, the  application may be made by  one of the parties and the cost is defrayed by the County Registrar.

In a civil trial that may happen only upon the application of the parties. The expense of bringing the jurors to the place concerned shall be paid by the person making the application but  shall  be ultimately included in the costs of the action.

If a juror dies or is discharged during the trial to illness, the jury shall unless the judge otherwise orders remain properly constituted, unless the number falls below ten.

In any trial, the judge may direct that a person summoned shall not serve or shall not continue as a juror, if the  judge considers that for any stated reason, it is desirable in the interests of justice that such direction shall be given.

In a trial, the jurors may at any time before they retire to consider their verdict, separate unless the judge otherwise directs.  After they so retire, they may separate only for such periods as the judge directs.

Information for Jury

The Criminal Procedure Act 2021 provides for information that can be given to a jury by the court in order to assist them with their deliberations.

This information includes documents, diagrams or recordings of speeches of counsel, evidence given during the trial, and including, where appropriate, an affidavit by an accountant or other suitably qualified person summarising, in a form likely to be comprehended by the jury, transactions by the accused or other persons which are relevant to the offence.

The  other party must be given sight of this affidavit in advance, that the court must hear any representation either party makes in relation to it, and that the accountant or qualified person must attend as an expert witness at trial, and may be questioned in relation to their report.

The legislation applies to trials  on indictment other than certain cases for which a special provision exists.

The trial judge may order that copies of any or all of the following documents or materials shall be given to the jury in any form that the judge considers appropriate:

• any document admitted in evidence at the trial;
• where such transcripts or audio recordings are available:
• the transcript of the opening speeches of counsel or an audio recording of such speeches;
• the transcript of the whole or any part of the evidence given at the trial or an audio recording of such evidence;
• the transcript of the closing speeches of counsel or an audio recording of such speeches;
• the transcript of the trial judge’s charge to the jury or an audio recording of such charge;
• any charts, diagrams, graphics, schedules or summaries of evidence produced at the trial;
• any other document that in the opinion of the trial judge would be of assistance to the jury in its deliberations including, where appropriate, an affidavit by an accountant or other suitably qualified person summarising, in a form which is likely to be comprehended by the jury, any transactions by the accused or other persons which are relevant to the offence.

If the prosecution or the accused proposes to apply to the trial judge for an order that a document shall be given to the jury, the prosecution or the accused, as the case may be, shall give a copy of the document to the other party in advance of the application and, on the hearing of the application, the trial judge shall take into account any representations made by or on behalf of either party in relation to it.

Where the trial judge has made an order that an affidavit shall be given to the jury, the accountant or other suitably qualified person concerned shall be summoned by the prosecution or the accused, as the case may be, to attend at the trial as an expert witness, and may be required by the trial judge, in an appropriate case, to give evidence in regard to the report and any relevant accounting procedures or principles.

Majority Verdict

The verdict of a jury in criminal proceedings need not be unanimous, where there are at least 11 jurors, 10 of whom agree. The court shall not accept a verdict of guilty unless the foreman has stated in an open court that the verdict is unanimous or by the above majority.  In the latter event, the number of jurors  who agree the verdict must be specified.

A verdict as above of ten of eleven or ten of twelve, shall not be accepted by the court unless it appears to the court that the jury have had such time for deliberation as the court thinks reasonable having regard to nature and complexity of the case.  At the very least, they must have two hours deliberation.

Where the verdict is one of not guilty, it shall not be indicated whether the verdict was unanimous or by majority. The provision for a majority verdict as above has been found constitutional by the High Court.

Juries should not reach verdicts under time, pressure or constraints.  The judges should seek to deal practically with the external needs  of jurors such as the collection of children.  They must deal with these issues,  reasonably and with common sense.