Extending jury service to non-citizens would strengthen justice system
Proposal to create more diverse juries should be acted upon
In its recent report on jury service, the Law Reform Commission suggests that, subject to a five-year residency requirement, such service should be extended to non-Irish citizens who are registered to vote in either Dáil or local elections. The commission argues that this extension of jury service would bring an extra 200,000 people into the jury pool.
Resident non-citizens have rights (like the right to vote), and must fulfil certain obligations (such as to pay taxes). Should they also be obliged to serve on juries?
First, there is no legal or constitutional impediment to such an extension. Article 38.5 of Bunreacht na hÉireann guarantees, subject to limitations, that “no person shall be tried on any criminal charge without a jury”. It does not stipulate how juries are to be composed – that is left to the Oireachtas. The requirement that juries consist of 12 citizens is from section 6 of the Juries Act 1976. This provision was more or less copied from earlier legislation.
Meaning of citizens
Who do we mean when we talk about citizens? Do we mean persons who legally hold Irish passports or members of our society who contribute to it in a meaningful way?
Many commentators refer to jury service as a duty of citizens, but they use “citizen” quite loosely. Often they are referring to citizenship in a broad socio-political, rather than a strict, legal sense; they could just as easily refer to “residents”, “inhabitants” or “persons”. Even in places where jury service is not restricted to citizens, the language of “citizenship” is still used.
In the seminal case of de Búrca and Anderson v Attorney General, the Supreme Court sought to emphasise that all persons, regardless of gender or status, should be allowed to sit on juries. This case concerned a challenge to legislation which effectively excluded the majority of women from juries. The judges made free use of the term “citizen” in this context, without any examination of whether jury service should be limited to Irish citizens, or to how such a limitation might be justified.
If the proposed changes are implemented, we will not be the first country to allow non-citizens to sit on juries. In England and Wales (with few exceptions), anyone on the electoral register is eligible to serve as a juror if they have lived in the UK, the Isle of Man or the Channel Islands for five years since the age of 13. To be on the UK electoral register, one can be a British citizen, an EU citizen or a Commonwealth citizen. Another country which allows non-citizens on juries is New Zealand, where one need only be a resident for a year.
What are the arguments against extending jury service to non-citizens? First, there is the language issue. If we open up jury service to non-citizens, how can we be sure that they will adequately comprehend court proceedings? This is easily addressed by the commission’s recommendation that proficiency in either English or Irish be a prerequisite for all jurors.
The five-year residency requirement also helps to address this. Furthermore, language and citizenship are not inextricably linked. Around a quarter of immigrants to Ireland come from English-speaking countries, and many others are fluent English speakers.
A second argument is that recent immigrants may conform to different social norms than the majority of Irish citizens. Religious beliefs and attitudes towards women, for example, may be at odds with the views of the majority in this country. This may be so, but there is no reason to presume that jurors with different cultural backgrounds would be any less competent or willing to carry out their functions fairly and conscientiously.
The modern idea of the jury is that it represents a cross-section of society. If there is a significant group within society which holds certain beliefs or endorses certain practices, then perhaps this ought to be represented on the jury. The commission recommends that only those non-citizens who have resided in this country for five years should be eligible for jury service. This is in line with the residency requirement for jury service in the UK, and it seems to be adequate time for immigrants to familiarise themselves with Irish cultural and legal norms.
Furthermore, the jury’s primary role is to decide whether the prosecution has proven all elements of an offence beyond a reasonable doubt. A clear and unambiguous direction from the judge, combined with adequate written information provided to prospective jurors in advance of court, should make the trial and role of the jury easily understood for those from different legal traditions and cultures.
Participation in jury service helps to integrate immigrant communities. Research indicates that it can promote integration and foster civic-mindedness among minority groups. While this is positive, the primary consideration is that the accused person receives a fair trial.
Secondly, there is the argument, articulated by the commission, that the jury pool ought to be representative of the community. The idea of representativeness gets to the heart of the modern jury: it allows lay persons to participate meaningfully in the criminal justice process.
Broadly speaking, all sections of the community ought to be represented, and this enhances the jury’s legitimacy in the eyes of the public. It would be impossible to reflect the precise make-up of society in the jury pool, but the requirement is only that juries be broadly representative.
Recent years have seen jury systems across the world radically reformed to achieve a more balanced representation of society. Restrictions on wealth, gender or prestige are virtually unheard of, and arguably the time has now come to do away with restrictions based on citizenship.
The Government ought to take heed of the commission’s proposals. Jury service is not a right to be jealously guarded, but a duty which ought to be borne more or less equally by all members of society.
Dr Niamh Howlin is a lecturer at the School of Law, University College Dublin