Modernising Jury Selection: Law Reform Commission’s Consultation Paper on Jury Selection
The Director of Public Prosecutions will launch the Law Reform Commission’s Consultation Paper on Jury Service this evening. The Consultation Paper will be available here this afternoon. The Commission is examining jury service as part of its Third Programme of Law Reform 2008-2014. It received a large number of submissions as part of its consultation on its work programme in 2007 calling for a review and modernisation of the law regulating juries. This is the first substantive review of jury service in Ireland since the introduction of the Juries Act 1976 (which was based largely on recommendations contained in Reports of the Committee on Court Practice and Procedure, 1965)
The Consultation Paper can be seen as a response to concerns about the representativeness of jury service in Ireland. Observation of the empanelment of juries reveals a scramble amongst the summoned to think of good enough excuses to avoid selection. This situation is exacerbated by legislation that provides for wide-ranging occupational exemption from jury service. There is a consensus that professional people are underrepresented on jury panels and it is suggested that older persons and unemployed persons are over-represented. Although it is noteworthy that there is no research base confirming or contradicting these perceptions.
The most significant provisional recommendations include:
- Reform of the current wide-ranging excusal system through replacement with a generic excusal system for “good cause”.
- The removal of the citizenship requirement in order to be eligible for jury service and that jury panels should be drawn from the electoral registers for local and European elections as opposed to the register of Dáil electors.
- EU citizens and long-term residents meeting a 5-year residency requirement should be eligible for jury service.
- Jurors should be allowed to defer jury service for up to 12 months. This reform could be quite effective in combating wide scale jury service avoidance.
There is also a provisional recommendation to end the prohibition of persons with a physical disability from jury service exclusively on the basis of a disability. The recommended removal of the blanket prohibition under the Juries Act 1976 as amended by the Civil Law Miscellaneous Provisions Act 2008 is to be welcomed and if implemented will bring Irish law into conformity with the standards set down in United Nations Convention on the Rights of Persons with Disabilities. The approach suggested by the Commission is that the capacity of a person to undertake jury service is the appropriate requirement for jury service. The Commission also provisionally recommends that persons with disabilities should be reasonably accommodated in order to undertake jury service. The Commission also recommends that persons with mental illness should also no longer be excluded from jury service solely on the basis of having impaired mental health.
The Commission also considers reform of challenges without cause shown (peremptory challenges) under section 20 of the Juries Act 1976. The Commission provisionally recommends the retention of peremptory challenges. However, the Commission is calling for submissions on whether the number of peremptory challenges available should be reduced from 7. It also recommends that the Director of Public Prosecutions should develop guidelines as to when it is appropriate for the prosecution to use peremptory challenges.
The Consultation Paper examines a number of issues allied to the area of jury selection. The first issue is the payment of jurors. It is generally considered that jurors are not treated very well in terms of monetary loss as a result of being selected for service. The Commission is inviting submissions in relation to whether some of the jurors expenses should be recoverable and considers ways to increase the participation of self-employed persons undertaking jury service.
The other major issue outside the realm of jury selection considered in the Consultation Paper relates to juror misconduct. There is an increasing concern that jurors carry out independent investigations about the cases which they are empanelled to decide. There is much evidence of this throughout the common law world. The Law Reform Commission provisionally recommends the introduction of legislation to make it a criminal offence for a juror to disclose matters discussed in the jury room or to make inquiries about matters arising in the course of a trial beyond the evidence presented to them. In addition, it is recommended that the Courts Service provide jurors with information explaining why independent investigations or Internet searches about a case should not be undertaken. It invites submissions as to whether a trial judge’s directions should be reformulated specifically to cover juror misconduct in all trials. In relation to jury tampering the Commission is inviting submissions as to whether the right of an accused to inspect the jury panel under section 16 of the Juries Act 1976 should be reformed.