Is a person with a disability eligible to be a juror?

Originally, there was an exclusive ban that persons with disabilities in Ireland couldn’t serve due to: ‘insufficient capacity.’ However, the position has changed now to how “practicable” it would be for a person who is deaf or blind to sit on a jury.

Irish Legislation

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. It would seem 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 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.

Reform of the law

The Law Reform Commission (LRC) report on: Jury Service which was recently published has recommended reforming the eligibility criteria fro jury service. In its report the LRC acknowledged that Ireland needs 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.).At paragraph 4.33 the report reads:

Having considered the matter in preparing this Report, the Commission is of the view that, as a matter of general principle, it is important to ensure as far as practicable the participation in society of individuals with physical disability. This reflects long-standing policy in this area and is already recognised in, for example, the Disability Act 2005. The Commission also fully supports the integration of persons with disabilities in society based on (a) a presumption of capacity, and (b) reasonable support and accommodation. This approach derives from the Commission’s general approach in the 2006 Report on Vulnerable Adults and the Law and the Commission understands that this is likely to be reflected in the proposed Assisted Decision-Making (Capacity) Bill, scheduled to be published in 2013, which is intended to implement the key elements of that 2006 Report and which also involves a key component of the State’s stated intention to ratify the 2006 UNCRPD.

Challenge to the Juries Act 1976

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. Joan Clarke who has a significant hearing disability argued that she is entitled to reasonable accommodation in the form of a sign language interpreter in order to enable her to undertake jury service. She 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. Justice O’Keeffe in October 2010 quashed the original court officials to ‘exclude’ her from serving on the jury.

Jurisdictions abroad

The position in Ireland can be starkly contrasted to jurisdictions abroad who have shown a lot more tolerance to deaf people serving on juries. For example, in the USA people who are deaf have served as jurors for nearly two decades since the enactment of the American Disabilities Act 1980. The case of People v. Guzman (1990) reflected this new forward thinking approach where the ability of the people who are deaf to serve on a jury was unanimously acknowledged after having considered the independence and competence that they display in the professional working environment. Ireland ought to reflect on the US system that promotes a cultural requirement to treat sections of the community equally in jury composition.

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. 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 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 practitioner”. 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 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 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.

Obstacles to getting on the jury

The right to peremptory challenge which currently exists in Ireland is an obstacle to the goal of reaching representative juries in Ireland. This right allows for questioning of potential jurors. This right might be used to exclude persons with disabilities sitting on juries. Another obstacle is the source list from which jurors are picked. The source list in Ireland is underrepresented. The Dail list of electors in Ireland is the sole secure list from which jurors is picked. This list excludes a significant portion of non-Irish. Foreign residents living in Ireland are required to apply for citizenship in order to be able to apply to the Dail electoral list and serve on the jury. Including the European electoral list would mean that more people would automatically apply.

Conclusion

Securing representative juries in Ireland is difficult but not unattainable. The law ought to be more flexible to tolerating the diversity of Irish society. If Ireland keeps going at a slow pace of reform there will continue to be groups of citizens who are not allowed to serve who ought to be. There is a need to make an amendment to the Juries Act 1976 to expressly provide for reasonable accommodation of jurors with disabilities. There is also a need to provide that interpreters’ work to agreed professional standards in assisting hearing impaired persons to undertake jury service. The lack of certainty as to the eligibility of hearing impaired persons for jury service highlights the need for placing the eligibility of jurors with hearing impairments on a clear statutory footing. This would address the current ambiguities and hopefully stop counsel using peremptory challenges to exclude persons with hearing impairment from jury service.  The Civil Law (Miscellaneous Provisions) Act 2008 made a number of cosmetic changes to the Juries Act 1976 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 and avoid the ambiguity. The law reform trend internationally 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. At any rate, clarification of the situation in Ireland in statute would be a welcome development.

Apr 23, 13