Juries Bill, 1975 [Seanad]: Second Stage.

Minister for Justice (Mr. Cooney)

I move: "That the Bill be now read a Second Time."

The Bill restates the statute law relating to juries in civil and criminal trials. The principal Act is the Juries Act, 1927, which was amended by the Juries Acts of 1945 and 1961 and certain provisions of other Acts. The Bill proposes to repeal all the existing provisions so that the relevant law will now be contained in one Act.

The Bill proposes to make large changes in the present law. The most important changes concern the persons qualified and liable for jury service. The 1927 Act based liability for jury service on the occupation of landed property of a certain rateable value. Stated shortly, the Act provided that Irish citizens aged 21 or upwards and under 65 who were on the electoral registers and who possessed the rating qualification should alone be qualified and liable. Moreover, the Act provided that women should not be liable for jury service unless they themselves applied to serve. As a result, only a small part of the adult population was qualified for jury service. In particular, the rating qualification excluded all men, however well educated, who did not happen to have landed property; and in practice women hardly ever served on juries. In the ten years up to 1974 only nine women are recorded as having applied to serve and so became qualified to do so, and of these only five were called for service and three actually served. It is of interest to mention that in 1963, the last year for which figures are readily available, the number of persons liable for jury service was just under 84,000.

I should now refer, briefly, to the procedure under the 1927 Act by which the persons liable for jury service have been identified and selected, because this procedure has depended on the rating qualification. When the officers of the local authorities make up the electoral registers, they mark the names of those liable for jury service with the letter "J”.

Every year the officer prepares a draft jurors list containing the names of the persons considered to be liable for jury service and submits it to the county registrar, who revises and settles the list after holding public revision sessions. After that the names of the persons liable are ready for entry in the jurors books, which are made up by county registrar and from which jurors are empanelled as required. The jurors books are not made up annually, but only when a book is exhausted and a new one is required. When panels of jurors were required, they have had to be taken in strict alphabetical order from the jurors books. Each jurors book has remained in force until all the persons whose names were included in it had been summoned once for jury service. The life of a jurors book has varied between three and ten years. The books have been revised annually by deleting the names of persons no longer liable, but persons who become qualified for jury service during the life of a jurors book cannot be included in the book and are, therefore, in fact, free from liability to be summoned until a new jurors book has to be made up.

I was of opinion that this restricted system of liability for jury service was unfair and I have been anxious to change it so as to remove the sex and property qualifications. I was strengthened in my views by the reports on jury service on these points made as long ago as 1965 by the Committee on Court Practice and Procedure under the chairmanship of Mr. Justice Walsh. Accordingly, I had the drafting of fresh legislation put in hand and it was introduced in the Seanad in July of last year. Its preparation and more especially the construction of a system to implement the changes proved long drawn out and quite difficult. The scheme was evolved by a working party representative of the county registrars, the local authorities and the Departments of Local Government and Justice and I would like to convey my thanks to the members of the working party. In the meantime the decision of the Supreme Court was given on 12th December last in the case of Máirín de Búrca and Mary Anderson v. the Attorney General. The court held unanimously that the provision in the 1927 Act restricting liability for jury service to persons with the requisite rateable qualification was contrary to the Constitution and—by a majority of four to one—that the virtual exclusion of women from jury service was also unconstitutional. This decision made the need for the new Bill a matter of urgency.

The main purpose of the Bill is to provide this new system. At the same time, the opportunity has been taken to rewrite the existing law and, in doing so, to make a large number of substantial changes. These, I hope, will considerably improve the law. These changes follow generally recommendations made by the Committee on Court Practice and Procedure in their second and fourth interim reports entitled "Jury Service" and "Jury Challenges" respectively. I should like to pay tribute to the painstaking and valuable work that the committee have done and my only regret is that so much time has elapsed since they reported. Once again a Minister for Justice has the agreeable duty of expressing in public his thanks to Mr. Justice Walsh and his colleagues for the public benefits they have provided by their examination of the difficult matters they have been asked to consider. In the present case, it is right to mention in particular that the committee anticipated the recent decision of the Supreme Court by recommending that the rating qualification for jurors should be abolished and, by a majority, that the exemption of women should also be abolished. The committee also recommended that, in consequence of the abolition of the rating qualification, jurors should be empanelled directly from the electoral registers; and this is what the Bill proposes. In the preparation of the Bill consideration has also been given to recommendations in the valuable report of the English Departmental Committee on Jury Service under the chairmanship of Lord Morris of Borth-y-Gest, which was published in 1965. I have also had the advantages of studying the recent legislation in Northern Ireland in 1974 and 1975 governing juries.

I said that the Bill replaces the existing statute law on juries. As a result, it contains a certain amount of detail which at first sight might seem unnecessary. But I feel sure that anybody who takes the trouble to compare the Bill with the 1927 Act and the amending enactments will agree that it will be a great benefit to have all the relevant law in one Act. Moreover, the 1927 Act goes into a great deal of detail on matters of procedure, such as the method of balloting for juries in court. Much of this detail can be left to administrative arrangements and is, therefore, not repeated in the Bill. As a result of these omissions and of other simplifications, the Bill will be only about a third of the length of the existing statute law, and I am sure we shall all be grateful for that. The explanatory memorandum attempts to summarise the provisions of the Bill and draws attention to the more important departures from the present law. I hope Deputies will find it useful in examining the Bill.

I come now to the provisions of the Bill. I do not think I need go into any great details as many of the provisions relate to the procedural matters, the details of which are set out in the explanatory memorandum.

Part I contains the usual formal provisions.

Part II includes the most important provisions which relate to qualification and liability for jury service.

Section 5 is technical, though important. It provides for the division of the country into jury districts. County boroughs will no longer be separate jury districts as at present but will be included in the respective counties. The present power to subdivided counties into jury districts is being continued.

Section 6 is the most important section as it states the new rule as to qualification and liability for jury service. Every citizen aged 18 or upwards and under 70 who is entered in a register of Dáil electors will be qualified and liable unless he is ineligible under section 7 or disqualified under section 8. The reduction from 21 to 18 in the lower age limit and the increase from 65 to 70 in the upper age limit are important changes and the former at least is a matter as to which there is room for some difference of opinion.

It may be argued in favour of keeping the lower age limit at 21 that many persons aged 18, 19 or 20 are likely to be of insufficient maturity and experience to discharge the duties of jurors satisfactorily. In particular, older people involved in litigation might feel aggrieved at the thought of their cases being decided by juries including members as young as 18. On the other hand, there is the consideration that younger persons who are themselves involved in litigation might feel equally aggrieved at the total exclusion of persons under 21 from the jury.

There are two arguments of principle in favour of reducing the lower age limits to 18. First, since the Legislature and the public, by reducing the voting age and the age for making a will to 18, have accepted the propositions that people of 18 are sufficiently mature to be trusted to take vital decisions, it follows that we ought to regard these young people as sufficiently mature to serve as jurors. The second argument is that the involvement of young persons in the administration of the law should increase their sense of being responsible citizens. There are also practical difficulties that would follow from keeping the lower age at 21. The electoral registers, from which jurors will be selected, include all persons of 18 or over and it would require a substantial amount of administrative work and additional expenditure to distinguish persons under 21. The law could, of course, provide that persons under 21 should be ineligible even though their names were on the electoral registers, but there might be considerable difficulties in determining whether particular persons summoned from the registers were over or under that age. Some persons under 21 might conceal the fact because they objected on principle to not being treated as qualified to serve; others, thought over 21, might claim to be under that age in order to avoid serving. As a result the county registrars or the courts might have to require the production of birth certificates to determine whether young persons were under or over 21.

The Government consider that on the whole the right course is to reduce the lower age limit to 18. If either party is against the inclusion of a young person in the jury, the party may challenge him under section 20, which section, as I shall mention later, increases the number of jurors who may be challenged without cause shown. There should be little difficulty in avoiding having a disproportionate number of young persons on a jury since the proportion of persons aged 18 to 20 who will be selected for jury service is likely in any event to be small. Moreover, as I shall also mention later, whole-time students will be excusable as of right if summoned as jurors. I should add that in England and Northern Ireland the lower age limit for jury service has been reduced to 18.

The raising of the upper age limit from 65 to 70 will, I feel, be generally welcomed. There must be many people, including retired people, between those ages who feel, and are, perfectly competent to serve on juries, and they may well resent being treated as too old to do so. But under section 9, read with Part II of the First Schedule, they will have the right to be excused if summoned.

Section 7 provides that the persons specified in Part I of the First Schedule shall be ineligible for jury service. The classes of persons to be ineligible correspond broadly to those ineligible under the present law. The differences are summarised in paragraph 47 of the explanatory memorandum. There are two matters which call for comment. The first is that a considerably wider range of persons than at present will be ineligible on the ground of being "persons concerned with the administration of justice". The exclusion of these persons is desirable in order to preserve the essentially lay character of juries and also because of the grievance that accused persons in criminal cases might well feel, if the jurors trying them included lawyers or members of the Garda Síochána or other persons connected with the administration of justice. The second matter is that the complete exemption from jury service enjoyed by civil servants and local government officials under the present law is being abolished. Instead the Bill provides that heads of Department et cetera shall be excusable as of right and other official only on a certificate by the head of the Department. This scheme was recommended by the Courts Committee. I shall return to this aspect later.

Section 8, to state its effect shortly, proposes that a person should be disqualified permanently from jury service if he has been sentenced to five years' imprisonment or more and that a person who has been sentenced to at least three months' imprisonment, provided he has actually served any part of the sentence, shall be disqualified for ten years. The section will apply to sentences passed in any part of Ireland. The provision is a substantial departure from the present rule, in section 4 of the Juries Act, 1927, which was, in my view, more than ripe for reconsideration. The 1927 Act provision excludes only persons convicted of treason, treason-felony, any other felony or perjury, and this applies however small the sentence passed and however long ago the conviction occurred. Thus a person convicted when a child of stealing an apple is in law disqualified for life but a person who has been convicted of a large-scale fraud which happens to be a misdemeanour and been sentenced to ten years' imprisonment is not disqualified. Section 8 proposes a more logical basis for the disqualification of convicted persons.

Section 9 provides that certain persons shall be excusable as of right from jury service and that other persons may be excused for good reason at the discretion of the county registrar or the court. The largest class of persons excusable as of right will be those specified in Part II of the First Schedule. These classes are summarised in paragraph 48 of the explanatory memorandum. The Bill proposes to make a procedural change in respect of these classes of persons apart from the changes in the classes themselves. The procedural change is that at present the persons in question cannot be summoned unless they volunteer for jury service; under the Bill they will be liable to be summoned but will be entitled to be excused if they wish. The largest change from the present law is, of course, that women will have no absolute right not to serve. The next most important change is that to which I have referred earlier that public servants, who are at present completely exempt, will instead be liable to be summoned but will be excusable as of right only to the extent provided in Part II of the Schedule. In future the heads of Departments et cetera will be excusable as of right and other members of the staffs will be excusable as of right only if the head gives a certificate that—and I quote—“it would be contrary to the public interest for the civil servant [or other official] to have to serve as a juror because he performs essential and urgent services of public importance that cannot reasonably be performed by another or postponed”. Such certificates will, therefore, be issued only in most exceptional circumstances and in general public servants will serve on juries. The teaching staffs of universities, schools and other educational institutions will be treated, mutatis mutandis, like Government Departments, and in addition whole-time students will, as I have mentioned, be excusable as of right. I have also already referred to the fact that the classes of persons excusable as of right will include persons between the ages of 65 and 70, who are at present not liable for jury service at all.

Under section 9 also persons who have served or duly attended to serve, on juries during the previous three years will be excusable as of right. The section also gives statutory recognition to the practice by which a judge sometimes, after a long trial, exempts the jurors from further jury service for a fixed period or for life.

Section 9 also gives a general power to county registrars to excuse any person summoned for jury service for good reason. At present jurors are excused by the judges, though in some instances the judges have delegated the power to excuse to the registrars of their courts. To give a general discretion such as proposed seems clearly desirable, especially now that so many more people will be liable for jury service. This applies especially in the case of women, who may have homes and young children to look after. Similarly, the county registrar might excuse a person for pressing family or business reasons or if he is in ill-health.

Section 9 gives a person whom the county registrar has refused to excuse a right of appeal to a judge of the court to which he has been summoned. It also provides that, at the stage when the juror is required to be in attendance at the court, the judge shall have a similar duty or discretion to excuse as the county registrar has at the stage when the juror is summoned.

Part III of the Bill contains the procedural provisions as to the empanelling and summoning of jurors, the selection of the jury from the panel, the mode of swearing, the rights of the parties to challenge jurors and a few other matters. There are few questions of principle involved and I need only mention the more important changes from the present law.

Section II provides that the county registrars shall empanel jurors—that is to say, select from the electroal registers the persons who should be summoned to attend the court. No special method of selection is prescribed but the registrar will be required to use "a procedure of random or other non-discriminatory selection". This contrasts with the present law, under which, as I have mentioned, the composition of the panels is predetermined alphabetically according to the order in which the names appear in the jurors books. The county registrars will be given guidance as to a suitable method of random selection in the administrative instructions that will be issued to them under section 27, to which I shall refer later.

Section 12 provides for the summoning of jurors by the county registrar. The form of summons will be prescribed by the Minister for Justice by regulations. The summons will be accompanied by a notice informing the juror of the effect of the provisions of the Act as to qualification and liability for service, ineligibility, disqualification and excusability as of right; and the notice will inform the person summoned of his right to make representations to the county registrar with a view to the withdrawal of the summons if the juror is not qualified for jury service or wishes or is entitled to be excused. It will be necessary to serve the summons at least a fortnight before the juror's attendance is required, because section 34 (3) provides that the juror will not be liable for non-attendance unless he has had this length of notice. In fact I propose that the administrative instructions should include an arrangement by which the summonses will be served, so far as possible, approximately four to six weeks in advance. Under the present law only four days' notice is required. I propose also to include in the instructions an arrangement for county registrars to send out with the summons a form of return which the juror will be asked to complete and in which he will state whether he is qualified or not. The form can be used in order to apply for excusal. The juror will be under no legal obligation to return the form; but it will be in his interest, as well as helpful to the county registrar, for the junior to return it. It will be helpful to the county registrar because, if the form is returned, he will be better able to judges whether there will be enough jurors or whether he will have to summon more. It will be in the juror's own interest to return the form, because, if he is not qualified or is excusable as of right or has a good claim to be excused, the county registrar will be in a position to tell him that he need not attend the court.

Section 15 includes two important provisions. The first is subsection (3), which provides that, before the balloting for a particular jury is begun, the judge shall warn the jurors present in court that they must not serve if ineligible or disqualified and as to the penalty, under section 36, for doing so. The judge will also invite any juror who knows that he is not qualified, or is in doubt as to whether he is qualified, or who may have an interest in the case or a connection with the case or the parties, to mention this fact if he is selected on the ballot. In the ordinary course, any question whether a person summoned as a juror is or is not qualified will have been raised by the juror himself in the form of return to the summons, but section 15 will provide an extra safeguard in case a juror has neglected to inform the county registrar of his want of qualification or in case he has ceased in the meantime to be qualified. If a juror claims not to be qualified or raises a doubt as to whether he is qualified, the judge should ordinarily have no difficuly in deciding on the matter. In a doubtful case the judge may excuse the juror under section 9 (7)—provided that the juror is willing to be excused—or he might discharge him under section 24, to which I shall refer later, or one of the parties might challenge the juror. The other change that section 15 makes is that in future under subsection (4), jurors will choose their own foreman. At present the first juror to be sworn always becomes foreman.

Sections 17 to 19, which relate to the swearing of juries, include only one change of substance from the present law. This is that section 17 (2) provides that jurors shall be sworn separately. At present jurors may be sworn collectively in all except capital cases. The greater solemnity of individual swearing will, I feel, emphasise the duty of jurors to give a true verdict in accordance with the evidence.

Section 20 proposes to give each party to civil proceedings, and the Attorney General or Director of Public Prosecutions and each accused in criminal proceedings, the right to challenge up to seven jurors without cause. At present in civil proceedings the plaintiff, or the plaintiffs between them and the defendant, or the defendants between them, may challenge up to three jurors without cause shown. In criminal proceedings a single accused may challenge up to five jurors without cause. Where there are more than one accused, they may between them challenge up to ten jurors without cause in treason or murder and up to six in other cases. In criminal cases the Attorney General or Director of Public Prosecutions has no right of challenge without cause, as such, but he may direct any number of the jurors to "stand-by", with the result that they are not included in the jury unless a complete jury cannot be formed without them. The new provision will take away the privileged position of the prosecution. The Committee on Court Practice and Procedure in their Fourth Interim Report, recommended increasing the number of challenges to five. The reason why the Bill proposes to make this further increase to seven, is because of the larger number of younger persons who will be liable owing to the reduction of the lower age age limit to 18. This reduction was, of course, not contemplated by the committee, as the voting age had not been reduced at the time when the committee reported so persons under 21 were not on the electoral register.

Section 24 gives a general discretion to the judge at any stage of a trial to direct that a juror shall not serve, or shall not continue to serve, if the judge considers that for any stated reason it is desirable in the interests of justice to give the direction. The courts committee thought that there was an inherent power to give such a direction but that, as there was some doubt about the matter and as the power would be useful, provision should be made expressly conferring it. They instanced "physical disability on the part of the juror" among the possible grounds for giving the direction. Of course, section 24 will not affect the power or duty of a judge to discharge the whole jury in appropriate cases.

Section 25 provides that in all jury trials the jury may separate before considering their verdict except where the judge otherwise directs. At present the jurors may not be permitted to separate in cases of capital murder, treason or treason-felony. It seems to me that the decision whether the jurors should be allowed to separate can properly be left to the discretion of the judge in all cases.

Part IV of the Bill contains certain general provisions. Only two of the sections call for special comment.

Section 27 provides that the Minister for Justice may issue administrative instructions to county registrars with regard to practice and procedure so as to secure consistency in the administration of the Act. The instructions will relate principally to the method of selecting the persons to be empanelled as jurors and the general procedure for summoning and for dealing with applications for excusal. Draft administrative instructions are at present being prepared in consultation with some of the county registrars in anticipation of the passing of the Bill. Section 27 expressly prohibits the issue of any instructions as to whether particular persons should or should not be summoned for jury service or, if summoned, should or should not be excused. It would clearly be entirely wrong for the Minister to be able to give any such instruction.

Section 29 is intended to protect employees and apprentices from losing pay owing to absence from their work for the purpose of complying with a jury summons. The section provides that they shall be treated for the purpose of the contract of employment or apprenticeship as being employed or apprenticed during any period when they are absent for jury service. They will thus be entitled to their pay for the period as if they were still at work.

I should mention at this point that the Bill makes no provision for jurors to be paid out of public funds for their service. This is also the position at present. I am of the opinion that a citizen should not look to the State for payment for doing a civic duty which will arise most infrequently, perhaps once or twice in a lifetime. If payment were to be made, it would be pointless unless it were adequate to compensate fully for loss, and, of course, that would place a substantial burden on the Exchequer. The provision that an employee will not lose wages through being absent on jury service is a substantial improvement on the present position so far as an employed person is concerned and such a person cannot have any cause for complaint. I recognise that the self-employed person does not run the risk of loss, but at least he can order his affairs so as to minimise his loss and maybe pull up for it later. Moreover, a self-employed person who would suffer grave hardship if he had to leave his business to attend court can apply to the county registrar for excusal.

Part V specifies the offences under the Act. Section 34 penalises failure without reasonable excuse to attend in compliance with a jury summons, not being available when required to serve and unfitness for service by reason of drink or drugs. Section 35 covers making or being party to the making of a false statement for the purpose of enabling the maker or somebody else to avoid jury service and refusing to answer or answering falsely when questioned by a judge for the purpose of determining whether the offender is qualified to serve as a juror. Section 36 makes it an offence to serve as a juror when ineligible or disqualified, and section 37 deals with refusal to be sworn as a juror.

The range of offences is wider than under the existing law. Since all persons on the electoral register will prima facie be qualified and liable, it will be particularly important to penalise the making of a false statement in order to avoid jury service and also to penalise serving when ineligible or disqualified. All the offences will be punishable on summary conviction in the District Court. The maximum penalty will be a fine of £50 except in the case of serving when disqualified owing to a criminal conviction, when it will be £200. The much higher penalty for the latter offence is proposed owing to the particular serious harm that may be done to the interests of justice if a person with a criminal record manages to serve on a jury.

The provisions as to failure to attend the court contrast with the present law. At present the judge must impose a fine of £3 on an absent juror but he may afterwards remit or reduce the fine if the person makes representations for the purpose. The provision for a fine of a fixed amount seems inappropriate when the circumstances may vary so much. Moreover, £3 is clearly far too low a figure in these days. The prospect of a prosecution in the District Court and a fine of up to £50 should discourage persons inclined to disregard jury summonses.

To sum up, the Bill will extend the duty and privilege of jury service to the population as a whole, will improve the present procedure in several respects and will considerably shorten and simplify the general law relating to juries and jury service.

I commend the Bill to the House.

Mr. G. Collins

First of all, this Bill is very welcome and I compliment all those associated with its drafting and framing. An excellent job has been done and where credit should be given it should be given generously. The Committee on Court Practice and Procedure, presided over by Mr. Justice Walsh, in their second interim report set out certain criticisms of the position obtaining in the Jurors Act, 1927 and I should like to quote from it:

(a) The property qualification operates unfairly in the circumstances of the present day. It was claimed that a very large number of persons fully competent to act as jurors were not liable because of the qualification. The great majority of the opinions expressed to the Committee favoured its abolition.

(b) The exemption of certain classes is not justified in present-day circumstances. It was urged that the exemption of civil servants, local government officials, members of the Defence Forces and others in the State or Local Service operated unjustly in present-day conditions.

(c) The difficulties caused by the present system. It was claimed that jury service is a hardship on owners of small or one-man businesses, on tradesmen or workmen who receive no remuneration while absent from work, and on travellers and salesmen who suffer loss of commission. The difficulties caused to businesses and industries by the absence of men in key positions were also stressed.

(d) Remuneration for jurors. The present remuneration for jurors is fixed by the Juries Act, 1927, Section 62, at 5/- per head for each case, in the trial of civil issues only, in which a verdict is returned. No remuneration is available for criminal cases.

(e) Undue length of service and inconvenience to jurors attending and not called for service. It was argued that the period of service of jurors is sometimes too longs. Duration of service may last for four to eight weeks per terms. Jurors also complain that, though in attendance, they are not necessarily selected for service and feel that their time has been wasted in coming to court.

(f) Inadequacy of notice to jurors. Complaint was also made that the present notice to jurors is inadequate. Four days notice is required under Section 39 of the Juries Act, 1927.

(g) Lack of instructions to jurors. Many jurors complained that they come to court for the first time in complete ignorance of their duties and functions. In particular, they mentioned the fact that jurors are unaware that they may ask questions to have some point, concerning either evidence or the circumstances of the case generally, explained to them during the hearing. They suggested that a short written summary of instructions should be made available to jurors at the time they are summoned.

The Supreme Court, in the case of Máirín de Búrca and Mary Anderson v. the Attorney General, judgment of which was delivered on the 12th December, 1975, struck down as unconstitutional the requirement of the Juries Act, 1927 whereby there should be a property qualification for jury service. By a majority verdict, Justice O'Higgins sitting in the same court decided that the method by which women were liable only for service if they applied was an unfair discrimination. On this side of the House we recognise that this Bill gives effect in large measure to the recommendations of the Committee on Court Practice and Procedure and also gives effect to the Supreme Court decision. It must be stated that some points dealt with in the report of the Committee on Court Practice and Procedure have not been put into effect.

With regard to the property qualification, I accept completely that a person's ability to serve on a jury cannot be governed by the extent of the rateable valuation on his house. Under the Jurors Minimum Rating Qualification Order, 1927, Statutory Order No. 92 of 1927 the Minister for Justice fixed property qualification by reference to rateable valuation which varied considerably from one part of the country to the other, one example being that the qualification in Wexford would be a poor law valuation of £40, whereas in the adjoining county of Waterford the poor law valuation requirement was £15. Mr. Justice Walsh, in the course of his judgment in the Supreme Court, dealt with the property qualification as follows. I quote from page 11 where he said:

It is true that for a long time, before the foundation of the State, and since then, jury service was based upon a property qualification. So also was the franchise in other periods. Up to comparatively recent times the franchise in local government elections in this State was based upon a property qualification. The fact of the existence of property qualifications in such circumstances, now and in the past, is not a valid argument to rebut a claim of inconsistency with the provisions of Article 40 of the Constitution. The property qualification undoubtedly discriminates between those citizens who have the qualification and those who have not and does so solely upon the basis of the amount of the poor law valuation of property in a particular district. This property qualification could not conceivably be said to refer to the physical or moral capacity of a prospective juror. Can it seriously be suggested that a person who is not the rated occupier of any property or who is not the rated occupier of property of a certain valuation is less intelligent or less honest or less impartial than one who is so rated? The answer can only be in the negative. Can such a discrimination be based on social function? Just as a man's intelligence and honestly is not directly proportionate or proportionate at all to the poor law valuation of his house or lands, which seems to be the underlying assumption of the property qualification, it cannot be said that such a qualification marks him out as having a social function which makes him more fitted for jury services than another, if indeed it does in any way constitute a social function within the meaning of Article 40, section 1 of the Constitution. If a case could be made for having the property qualification it could not reasonably be confined to one particular type of property. It would be just as rational to suggest that jury service should be confined to the owners of motor cars of over a certain horsepower or motor cars of more than a certain value. This particular type of property qualification totally ignores the realities of wealth. A man may be a most highly qualified person for jury service and may indeed be a very wealthy man and not be the rated occupier of any property. On the other hand, the rated occupier of property may be illiterate and poverty stricken. He may even be a person of unsound mind.

That is what Mr. Justice Walsh had to say.

I do not share the apprehension felt by some people that because the liability for jury service is spread over a wider range of people, broadly those on the electoral register, subject, of course, to certain exemptions, ineligibility and persons who can get excused, the quality of juries will deteriorate. I consider that the availability under the new legislation of civil servants and Local Government officials will strengthen the pool from which jurors are drawn. I consider the extension of the liability of jury service to be a very welcome development. Its restriction to persons above a certain property qualification was discriminatory and its abolition is timely.

With regard to the proposition that women are now liable to jury service this, too, is a move to be welcomed. It follows from the Supreme Court decision that despite the special constitutional provisions whereby the rights of a mother in a home and the rights of a family are specially dealt with, nevertheless everybody knows the role of women has changed radically in the last 40 to 50 years. There seems to be no reason in logic or on constitutional grounds, whether jury service is regarded as a privilege or a burden, why it should be restricted to one sex exclusively. The same question fell to be decided by the American Supreme Court only last year in the case of Taylor v. Louisiana which is reported in the official reports of the Supreme Court of the United States, column 419, page 522. In delivering the opinion of the court Mr. Justice White at page 530 said:

Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with a constitutional concept of jury trial.

On page 533 of the same report it says:

There remains the argument that women as a class serve a distinctive role in society and that jury service would so substantially interfere with that function that the State has ample justification for excluding women from service unless they volunteer, even though the result is that almost all jurors are men. It is true that Hoyt v. Florida 368 U.S. 57 (1961), held that such a system 14 did not deny due process of law or equal protection of the laws because there was a sufficiently rational basis for such an exemption 15. But Hoyt did not involve a defendant's Sixth Amendment right to a jury drawn from a fair cross-section of the community and the prospect of depriving him of that right if women as a class are systematically excluded. The right to a proper jury cannot be overcome on merely rational grounds 16. There must be weightier reasons if a distinctive class representing 53 per cent of the eligible jurors is for all practical purposes to be excluded from jury service.

In the existing service the load was borne by a small group of people, and this of course applied especially in cities. I hold that this load is unfair, and the spread of the burden of jury service over a wider section of the community will mean that people will have to answer for jury service less often, though indeed it is provided in the Bill that if a person shows to the satisfaction of the county registrar that he has been called for service within three years he can claim to be exempted. It might be safely provided that period should be extended to five years.

Section 29 provides that employees and apprentices are to be paid while on juries. No formal remuneration is provided for the self-employed or the owners of small businesses and so on. The Committee on Court Practice and Procedure recommended that there should be a payment of £2 a day to serving jurors, and if one were to update this to bring that recommendation in line with the value of money, the figure would have to be in the region of £5 per day at present. Provision of some remuneration to serving jurors should not be an undue burden on the State, since the jury burden is so important in the administration of justice.

This section creates a discrimination between certain jurors who are, in effect, will-nilly being paid for their services to the extent that their employers have to reimburse them, and those who happen to make a complete sacrifice by getting no remuneration whatever. I accept that there was no payment for those serving on criminal juries before this. Payment for those who served on a civil jury was very small indeed, regarded by some as being contemptuous, 25p to each juror. It was necessary to abolish that absurdity because it brought the whole role of the juror into disrespect. However, in 1927 the fee of five shillings, or 25p, could at least buy a fairly substantial meal, but nowadays it would not be good enough even to help one with a thirst problem.

With regard to the point made in the report of the Committee on Court Practice and Procedure that jurors did not get instructions, the committee have paid attention to this and are of the opinion that it is desirable that advance instructions and information should be made available to jurors. They feel that this would be a help to them in the discharge of their function. The committee accordingly recommended that a brief explanatory list of instructions and information concerning jury service be issued to each juror, preferably at the time he receives his preliminary notice for his summons for service. It is a matter for regret that this has been omitted from the Bill. We might be able to do something about that on Committee Stage.

I turn to Part V which deals with offences under the Bill. The existing penalty for failure to attend court is a fine of £3 which is imposed by the trial judge. The new requirement is that the person is prosecuted in the District Court and is liable to a fine not exceeding £50. It seems to me that this is a rather serve maximum penalty for failure to attend. Also it must surely be a rather expensive form of prosecution, since proof of service of summons would have to be adduced, proof that the man served was liable for jury service would have to be available, his non-attendance at the court would have to be proved, and so on. The hurdles confronting anyone bringing a prosecution would be quite formidable.

With regard to the role of the county registrar set forth in section 9, this seems a common-sense approach to the matter. The county registrars generally have very wide experience in this matter and understand the situation and the procedures in dealing with people who send in medical certificates and so forth under the existing legislation. The provision in section 9 (2) whereby a county registrar may excuse any person whom he has summoned for attendance during the whole or any part of the session, if that person shows to his satisfaction why he should be so excused, seems a very sensible approach.

While dealing with this Bill we have available to us the reports of the discussion of the debate which took place in the Seanad. That, coupled with the Minister's comprehensive contribution here this morning is a help, in that one can see the arguments that were made in the other House for any against certain important parts of this Bill. The question of reducing the age limit to 18 was argued. I believe this is a step in the right direction, that people at the age of 18 and upwards be given this responsibility. The Minister and the Government were quite right in adopting the line they did in this regard. We know the arguments against, but I think the Minister has taken every precaution possible to safeguard against any abuses which might show themselves in the future.

The Minister said that neither he nor the Government favour any form of remuneration or payment for jury service, except those covered by section 59 of the Bill, those who are guaranteed their payment by their employers. Civic duty is something that we all talk about, and if we do not we should as often as we can. We need to be conscious of it. Perhaps our educational system is showing its lead here, since in recent years we have had civics courses in our schools. I still believe, as was stated in the report on jury service I mentioned earlier, that some compensation should be made even though these people will be called only very rarely. Civic duty can mean different things to different people. Civic duty is acceptable to those who will not be faced with hardship or who will not be faced with a burden when called on for jury service; of course, they will face up to their responsibilities and do what is required of them. However, now that we are considerably broadening the base of eligibility for jury service, the Minister and those advising him have seemingly overlooked one very important section of people. Perhaps their thinking was orientated to urban or city life, but they completely forgot about a problem which any rural Member of this House would see immediately.

At the present time—and I am not saying this to score any political point —there are approaching 120,000 people unemployed. About 99 per cent of them, that is those over 18 years of age, are, I am sure, on the register of electors. There are, in addition to this number, also on the register a sizeable number of people who are in receipt of allowances from health boards to enable them to subsist. If a single man drawing £7 or £8 a week social welfare benefit or a married man drawing more because of his dependants, is called for our jury service, is he exempted because he cannot afford to go?

If such a person has to travel from west Cork to Cork city, from west Limerick to Limerick city or from the west of any county to the county town, distances sometimes involving journeys of up to 70 miles, does he get free transport? Will he get a voucher for it? If the case goes on more than four or five hours necessitating his stay overnight in a hotel or elsewhere for bed and breakfast, is he expected to pay for this out of his £7 or £8 social welfare benefit? If he is, it is grossly unfair. If a married man with £20 social welfare benefit on which to keep his wife and children has to give jury service on the same lines as I have stated, that is not civic duty; it is a hardship. It must be a hardship because the allowances, generous though they might be, are not sufficient other than to keep these people just above the breadline. I would like the Minister to examine this problem and see if anything can be done about it.

While I am on the subject of the 120,000 people who are in the queues for the dole at the labour exchanges, I would remind the House that one of the requirements that must be met for these people to qualify for allowances every week is that they be available for work. Are they available if they are on jury service? If they are offered a job on the day they are offered jury service, which comes first?

I am not very happy about section 14, which deals with the summoning of jurors to make up a deficiency. I propose to put down an amendment to the section on Committee Stage. The section reads:

(1) If it appears to a judge of a court that a jury to try any issue before the court will or may be incomplete, the judge may require any persons (being persons qualified and liable to serve as jurors in that court) to be summoned by the county registrar in order to make up the number needed.

(2) The judge shall specify the area from which persons may be summoned (which may be the area in the vicinity of the court) and the method of summons, whether by written notice or otherwise.

This reminds me of the parable about the man who gave the wedding feast to which nobody turned up and he sent his servants out to the streets to ask people to come in to participate in what was going on. There is a touch of that about this section, and maybe we could talk about it in more detail later on. I would like to see section 15 tidied up. Subsection (3) reads:

Before the selection is begun the judge shall warn the jurors present that they must not serve if they are ineligible or disqualified and as to the penalty under section 36 for doing so; and he shall invite any person who knows that he is not qualified to serve or who is in doubt as to whether he is qualified or who may have an interest in or connection with the case or the parties to communicate the fact to the judge (either orally or otherwise as the judge may direct or authorise) if he is selected on the ballot.

A warning might not be good enough. As the base of selection of jurors is so broad, I think the judge should do more than warn, that he should explain fully what is involved to people who might not be as familiar with the situation as the Minister or the judge or anybody else might think they were.

Section 17 deals with the method of swearing a jury. The Minister makes the argument that the swearing in of jurors separately would lead to greater solemnity. I have not been in too many courtrooms in my life, thank God. The once or twice I was there, unfortunately I was there on business and had to be sworn in, and I hope I do not have to go back too often. When I was being sworn in as an individual the rí rá and the ruaille buaille that was going on at the back of the court almost distracted myself. I do not mean any disrespect to our courts: there is meant to be silence but in fact this is not so, as I am sure the legal profession, who are much more familiar with what happens in these places than I am, would probably agree. I accept the argument put forward by the Minister, but I do not think it will achieve what the Minister wants it to achieve, that is, solemnity, so that the person realises he is swearing an oath to God to tell the truth, the whole truth. That solemnity would not be helped by the fact that while people are being sworn in one by one, we are possibly running the risk of distraction at the back of the court. I agree with the Minister that, in principle, if it could be done it would be very valuable. Perhaps if we gave discretion to the judge under this section to decide whether it should be done on the individual basis or done as a group, that might be a worthwhile consideration on Committee Stage.

Section 27 provides:

With a view to securing consistency in the administration of this Act, the Minister may issue instructions to county registrars with regard to the practice and the procedure to be adopted by them in the discharge of their duties under this Act: but nothing in this section shall authorise the Minister to issue any instruction as to whether particular persons should or should not be summoned for service as jurors or, if summoned, should not be excused from attendance in accordance with the summons.

It may be that there is room for argument on both sides. Perhaps it might be better if whatever instructions, or whatever directions, are being given would be given not just as an instruction from the Minister's office to the county registrars but in the form of a statutory instrument. That might be better. It can be considered at a later stage as well.

I welcome the Bill. I think this is my first time to say this to the Minister. This Bill is certainly a step in the right direction. I am sorry I could not say the same about other Bills he has before the House at present. I will give credit where credit is due. We will do everything we can to facilitate. the Minister in getting this Bill through and having it in operation very shortly.

Mrs. Desmond

My intervention will be brief. I rise to welcome the Bill. It is a somewhat overdue piece of progressive legislation. I commend the Minister on its introduction. I hope it will get a speedy passage and be enacted as law in the shortest time possible. It is now over ten years since the Committee on Court practice and procedure recommended changes in the Juries Act of 1927. Despite considerable pressure, particularly from women's organisations who are incensed by the diminution of the rights of women contained in the 1927 Act, it is fair to say that successive Ministers for Justice failed to introduce this necessary legislation. I accept the Minister's statement that consultations were required and technical difficulties had to be overcome.

There are four main provisions in the Bill. First there is the change in the system whereby landowners of a certain valuation only, and over, were liable for jury service and the replacement of this by the extension of the liability for jury service to all persons between the ages of 18 and 70 years. This is a very welcome innovation in the law. The second change is that women are no longer exempt and are now liable just as men are. On the Minister's own admission this morning, this is the main change brought about by the legislation. The Minister said that in the ten years up to 1974 only nine women applied for jury service and only three women actually served. He went on to say that 84,000 persons in all served as jurors. This demonstrates the small number of citizens who were involved in this service. It also demonstrates the very small part women were allowed to play in decision making in this area as in all other areas in our society.

The inclusion of women is long overdue and it is welcomed by all women's organisations and all people interested in giving full civil rights to women. The inference that all the capacity for judgment, all the integrity, all the general qualifications required for jury service could be found only in the holders of a considerable acreage of land and that these virtues reposed principally or exclusively in the male sex was highly offensive to women and it was also offensive to the general body of the population. It constituted discrimination against women on the grounds of sex. It also discriminated against people with no property.

The other provisions mainly are that jurors will be selected at random rather than by strict rotation according to their place on the jurors' book. That is also fair. We have the abolition of the Attorney General's right to stand by jurors. He is placed in the same position as the prosecution with regard to challenging jurors. This is a laudable change. On section 29 and the question of the payment or remuneration of jurors, I might have one reservation. I believe that the remuneration of all jurors is the right course to take. The same argument was made at one time against the remuneration of Members of the Houses of the Oireachtas. I do not think the remuneration of Members of the Oireachtas has in any way interfered with their sense of duty, or their service to the community, or with the performance of their duties. Again on the subject of women's rights, section 29 will discriminate against women who are employed in the home, housewives whose services in the home have never been recognised in terms of money. If they engaged somebody to perform their duties in the home no compensation was forthcoming. This would curtail them in the performance of their duties as jurors. The same argument could be advanced in favour of self-employed people. Self-employed people would be said to have some form of income. Married women who work in the home should be given some form of remuneration to allow them to leave their home and perform their duties as jurors. Otherwise very few married women will be able to leave their homes to perform this duty no matter how much they may be personally inclined or anxious to do so.

I am also very much in favour of extending the right to jury service to persons of 18 years of age. I know arguments are advanced for and against the extension of the age of eligibility to people of 18 years to 21 years. Maturity is not strictly related to ages. There are immature people of all ages. Other rights and duties of adult citizens have now been extended to 18-year-olds. They have voting rights. They have always performed military service. Young offenders have a right to be tried by a jury consisting partly of persons in their own age group. Apart from the administrative difficulties which I know will be very great, as of right people of 18 years plus should be able to serve as jurors.

I do not intend to detain the House. This is a very worthwhile measure. It is long overdue. I commend the Minister heartily on the introduction of the Bill. It will eliminate much of the injustice which existed in our society with regard to the administration of the law. We can have further discussions on Committee Stage. It is my wish that it should be passed through this House and become law in the shortest number of days possible.

Mr. O'Kennedy

I am sure every Member of the House will welcome this Bill and endeavour to give it a speedy passage through the House. I welcome it for a wide variety of reasons. It extends the jury panel. Since the original Act was passed there certainly is a different attitude to the rights and obligations of the public at large in the discharge of their civic responsibilities. When one looks at the removal of the property qualification one recognises that here we are giving expression to a major change in society since the passage of the 1927 Act. At that time the property qualification was taken to be confirmation of responsibility and lack of property brought into question whether or not one had some measure of responsibility. That approach has long since vanished. If I have any criticism—it is not very valid though cogent—it is that it would have been as well for a Bill of this kind to have been introduced before the necessity for doing so arose as a result of the Supreme Court decision. That does not lessen my support for this measure but had two citizens not taken the action they did, even despite the commission's recommendations, we might have had to wait considerably longer for this Bill. I am sure the Minister will admit it is long overdue. I am not apportioning blame.

Dáil Éireann debate - Thursday, 12 Feb 1976

Juries Bill, 1975 [Seanad]: Second Stage.

Dáil Éireann debate -
Thursday, 12 Feb 1976