Inside the Irish jury
Our jury system – 12 ordinary citizens conversing in secret to decide a person’s guilt or innocence – sounds like a strange social experiment, yet it’s a cornerstone of our legal system. Does it work?
Take a group of adults at random from a city street. Apply a filter that automatically excludes from the sample all judges, lawyers, gardaí, soldiers, foreigners, presidents, prison officers or people who have been convicted of serious offences. (These categories can be fluid; previous iterations have excluded women.) Of those who are left, make participation optional for, say, doctors, nurses, midwives, TDs, Senators, priests, monks, vets, pilots, students, ship masters, teachers, over-65s, senior executives and university lecturers.
And if anyone else has a good enough excuse, or if we don’t like the cut of their jib, we’ll let them off too.
Eventually we end up with 12 individuals. We tell them to drop everything. For the next few days, weeks or months, we’ll talk them through two cogently argued, contradictory accounts of the same event and give them a quick primer in the basic principles that should guide them in choosing between them. Then we’ll take away their mobile phones, lock them in a room and tell them not to come out until they have decided which version of the story to believe. How they come up with their decision is their own business; all we want is a simple Yes or No.
And the stakes? The stakes are high. This decision could well be one of the most important these 12 people will ever make.
Put like that, the jury system sounds vaguely far-fetched, an almost arbitrary social experiment. Perhaps it was when, about 1000 AD, the concept of 12 people being nominated to decide whether someone had committed a crime began to circulate. Today this system is a cornerstone of our justice system, enshrined in the Constitution and imbued with such unassailable legitimacy that serving on a jury is established as one of the key duties of the citizen. It is many people’s only point of contact with the courts and the justice system, even if, paradoxically, it remains shrouded in myth and mystery.
“I did the whole dressing-in-a-suit-thing,” says Carol, who sat on a jury for the first time last year. “People say if you wear a suit you’re less likely to be picked.”
As the names of potential jurors are called out by the court registrar, each side – the prosecution and the defence – can reject up to seven people without having to give any reason (“without cause”). They are also allowed an unlimited number of challenges “for cause”, by showing that a potential juror is unsuitable because, for example, they know one of the parties.
“That was the only time I felt intimidated, because the whole court looks at you when you stand up,” says Patrick, who is in his 20s and lives in Dublin. “They eye you up and down and say Yes or No.”
In the Irish system, legal teams’ knowledge of the day’s jury panel is limited to names, occupations and appearances, and practitioners admit their challenges without cause are as scientific as astrology.
“I’m really unconvinced as to the value of it other than the psychological value,” says Dara Robinson, a solicitor who specialises in criminal law. “It’s extremely difficult to assess how a person is likely to react to any particular bit of evidence on the basis of their appearance. You have to make certain assumptions.”
Clients and their lawyers will occasionally agree a strategy beforehand, hoping to secure a gender or age breakdown they deem favourable to their case. Patterns are hard to pin down, but it’s a safe bet, for example, that a young man accused of robbing a post office wouldn’t be keen on a middle-aged jury packed with shopkeepers. Many solicitors advise their clients to veto taxi drivers. The defence might well be wary of suits, whereas the prosecution might not fancy its chances with a line-up of tattoos, piercings and bomber jackets.
“If the accused is a particular age, late teens or early 20s, you would be conscious that women of 40-55 would have children of that age group and would be perceived as being perhaps more open to having a degree of empathy with the accused in those circumstances,” says Michael O’Higgins SC. Even lawyers who use the challenge sparingly feel it offers welcome reassurance to their clients. At the very least, it allows them to filter out anyone who might be “a few olives short of a pizza”, as one barrister puts it, without causing offence.
Whether because of, or in spite of, the challenge system, juries often tend to look like a reasonable cross-section of society. “I remember thinking it was a very random selection of people that you could just gather up on O’Connell Street,” says Anne, who has twice served on a jury. “It really is a mix of ages, life experience, economic standing and everything.”
How the profile of a jury can influence the verdict is far from clear-cut, anyway. In recent years, some campaign groups have called for gender quotas in rape cases, on the assumption that a woman’s perspective on rape is drowned out by the man’s perspective, resulting in unjust acquittals. If that were true, one would expect that female-dominated juries would convict more readily than male- dominated ones.
Attempting to test that hypothesis, academics Conor Hanly, Deirdre Healy and Stacey Scriver analysed the verdicts and gender breakdowns of 108 juries: 64 per cent had more men than women, 17 per cent had more women than men and 19 per cent were split evenly. The analysis, published by the Rape Crisis Network, found female-dominated juries did not convict of rape in any case, and the male-dominated ones had a higher conviction rate than evenly split juries. The numbers were too small to be definitive, but the researchers concluded there was no evidence that increasing the number of female jurors would lead to more convictions (this is consistent with research in other countries).
Just how representative is the jury pool? As a starting point, every Irish citizen aged 18 years or upwards,whose name appears on the register of Dáil Éireann electors, is eligible to sit on a jury. The law then narrows the pool, specifying categories of people who are ineligible (including lawyers, gardaí and members of the Defence Forces), disqualified (those convicted of serious offences) or excusable (including TDs, priests, medics, students and over-65s).
There is general agreement that, as a result of the wide number of professions included in the category of “excusal as of right”, only a small number of professionals actually serve on juries. In effect, the system makes it easier for middle-class people to avoid serving, while the jury pool contains a disproportionate number of young people and over-65s, who are less likely to exercise their right to be excused.
The gap between the ideal and the reality is highlighted by figures released to The Irish Times by the Courts Service under the Freedom of Information Act. They show that in 2012, some 35,300 jury summonses were issued by the Jury Office in Dublin, but 24,163 people were excused from service. Of these, 31 per cent were excused because they were out of the country, medically unfit or self-employed, while 13 per cent were excused because they were dead, untraceable or living overseas.
Some 56 per cent were excused because they were students, over 65, could not read or write or worked as medics, teachers, civil servants or in the Oireachtas.
This broadly tallies with a 1993 study by the Department of Finance, which found an attrition rate of between 60 per cent and 70 per cent of those summoned for jury service: in other words, only 30-40 per cent of those summoned were available. Failing to show up generally goes unpunished; the same study found that in Dublin just 6 per cent of those issued with summonses were prosecuted for nonattendance, whereas the figure stood at 2 per cent in Cork and 6 per cent in Limerick.
The Law Reform Commission has recommended changes that would make the pool more representative. It says the current system of excusal on the basis of membership of a particular profession is difficult to reconcile with the fundamental principle that jury selection should, in general, be random. It believes the list of people excusable by right should be repealed and replaced with a general right of excusal for good cause and that evidence should be required to support each application for excusal. The commission also recommends that the pool be widened to include foreign nationals who have been ordinarily resident in the State for five years.
While the flaws in the selection process are clear, many believe the State shouldn’t try too hard to force people on to a jury if they don’t want to be there. “If you have got 11 jurors who are up for the job, the last thing you want is a number 12 showing lack of concentration or disrupting the 11 who want to be there,” says one prominent barrister. “I think you have to be pragmatic . . . You can force them to be on the jury but you can’t force them to listen.”
Jurors’ accounts of the group dynamic differ dramatically. Carol says her service left her disheartened. There were three people who were “very strong-minded” in her group, she says, and at times she felt her views were not listened to. “The quieter members of the jury didn’t really speak up and didn’t really voice their opinion.”
In an account of her experience on a jury in 2009, the academic Elaine Byrne described how a fellow juror ran his plumbing business by phone from the jury-room toilet. “I’ll just go along with whatever ye decide,” he said, according to Byrne.
By contrast, Anne feels her jury were exemplary. “One thing that did impress me was that all of the jurors took it very, very seriously,” she says. “You’re mentally exhausted. You’re concentrating so much on what everyone says, you’re taking notes. When you’re at home at night, it’s all going around in your mind . . . Nobody took it lightly, which impressed me.” In a similar vein, Patrick says he had a “great experience” on a jury that took a very solemn approach to its task.
Liam, who is in his 30s and lives in Dublin, says the experience felt like being in a reality-TV programme. “There’s a natural giddiness and then a boredom that sets in,” he says. “You know each other only because you’re locked up together from 10am to 4pm.”
It struck him, he recalls, that the mood on the jury altered noticeably as they approached the end of the trial. The scale of the decision they faced hit home and the silences stretched out. “It weighs on your mind. Even over lunch, the mood really changed. There was that camaraderie before; then everybody kept to themselves.”
Liam was surprised by how little guidance the jury received on how it should go about its deliberations, or even how long the trial would take. He was also taken aback to find himself walking out of the court building at the end of the day alongside families and witnesses from the trial and to hear from two fellow jurors that the accused travelled home on the same train as them every evening. “After the verdict, a couple of people were crying out of sheer relief that it was over, or the weight of the decision,” he says.
The knowledge gap
The jury’s standing has been enhanced by a number of high-profile recent trials, not least that of the former solicitor Thomas Byrne, who in November was unanimously found guilty of 50 fraud and theft offences after a six-week trial. The judge in that case remarked that the jury, which deliberated for a week, was the most impressive he had ever seen.
Lawyers may gripe that a verdict was too harsh or too generous, or that one jury seemed to be more attentive than another, but overall, says O’Higgins, the general sense of juries is that they give people a fair hearing and a fair result. In a sense, he adds, the system rests on the assumption that there is no right or wrong decision.
“If a case has been correctly left to the jury, it means there are two possible results. What is justice? People seem to think it’s some clearly identifiable feature that can be isolated and packaged, whereas it is this incredibly subjective thing.”
In any case, because deliberations take place in private, the research methods and statistical analysis we use to measure success and failure in so many other areas of public life are never applied to juries. For all we know, they could be arriving at decisions by flipping coins.
Perhaps not knowing is part of the trade-off. “In a way, the justice system can only work on a presumption that they listen to everything carefully and discuss everything carefully,” says one barrister. “If you discovered, for example, that in two out of 10 cases they don’t do that, what could you do with that information? . . . In a sense it might fall under the category: ‘Do you want to know the answer?’ ”
Liam concurs. “I think it’s the best we have,” he says. “It’s the same as the democratic process. You just have to rely on the good in people.”
Jurors’ names have been changed.
Jury service: how to improve it
A selection of recommendations from the Law Reform Commission (April 2013).
Foreign nationals who have been ordinarily resident in the State for at least five years should be eligible.
Repeal the section of the law that lists people who are excusable from jury duty as of right and replace it with a right of excusal for good cause. Evidence should be required to support applications for excusal.
Create a new offence of jury tampering, to include any attempt to corrupt or influence or instruct a jury.
In order to protect juror privacy and assist in preventing potential intimidation, abolish the daily roll call of the jury.
The judge’s direction to a jury should specifically warn against the use of internet searches and explain to jurors how to report misbehaviour on the jury.
Introduce a new offence to prohibit jurors from making inquiries, including online, about the accused or any other matters relevant to the trial.
Introduce a modest flat-rate payment to cover the cost of transport and other incidentals involved in jury service.
A court should be empowered to empanel up to three additional jurors where the judge estimates that the trial will take more than three months.
The trial judge should be empowered to appoint an assessor to assist the court, including the jury, to address any difficulties it might have in understanding complex evidence.