Jury service: Many with disability 'would like to do their civic duty’
There are many physical and legal barriers for those with disability seeking to fulfil jury duty
Michelle Gaynor, chair of Independent Living Movement Ireland: “We want equality in the 21st century, and that includes being able to play our part on jury duty.” Photograph: Tommy Clancy
When a jury summons lands on the doormat, many people groan and try to devise excuses, some ingenious, to wriggle out of service.
Rachel Creevey wasn’t one of them.
“I was delighted, my father and brother had been called before. I never thought I would be called, I thought it was against the rules.”
The summons, Creevey says, made her feel like every other citizen. “Some people suggested I ring up and say I had a disability and I would get out of it but I was fine, I wanted to do it.”
Creevey (35) has a degree in social policy and works part time with the Irish Wheelchair Association. She has a brittle bones condition which means she uses a wheelchair and is oxygen dependent.
Answering the call for jury service at the Criminal Courts of Justice (CCJ) building on Dublin’s Parkgate Street posed certain challenges for Creevey – but less than other, older court buildings. The CCJ, a courts service spokesman points out, won the best accessible building category in the Irish Architecture Awards and was designed to be universally accessible.
As a member of a panel of potential jurors, Creevey spent three days at the CCJ before she was called to serve. She found the building accessible, saying she could easily get a coffee and go to the bathroom. When called on day three, she was nervous for several reasons. Her concerns included that the case involved a serious sexual assault. She also worried that, if sworn in as a juror, would the jury box would be accessible for her wheelchair? Would she have enough oxygen cylinders and who would assist her in changing a cylinder?
In the end, none of her concerns had to be addressed. “They objected to me.”
She doesn’t know why but no potential juror does. Lawyers for a defendant and prosecution are entitled to object to up to seven jurors “without cause shown”.
“I was content enough, I was nervous about the type of case that it was,” Creevey says. “I enjoyed the experience.”
While people with physical disabilities face difficulties in accessing jury service, deaf people were banned for years on jury inclusion. That ended in 2010 when the High Court upheld a challenge brought by Joan Clarke, from Athenry, Co Galway, a working mother of two children. She was represented by Michael Farrell, a solicitor with the Free Legal Advice Centres.
Clarke, who is deaf and fluent in lip reading and sign language, had received a jury summons for Galway Circuit Court in April 2006 and indicated she wanted to serve.
The Galway Court office arranged interpreters for her but then told her they had been informed no deaf person could serve on a jury and the County Registrar wrote to her saying she had been excused from jury service.
The problem was, Clarke had never sought to be excused.
In July 2010, High Court Judge Daniel O’Keeffe ruled the Galway county registrar was wrong to exclude Clarke from jury service. However, he also expressed the view that the principle of the confidentiality of jury deliberations meant only jurors could be present in the jury room, thus precluding Clarke from having a sign language interpreter present without which she could not effectively engage in jury service.
FLAC considered the High Court decision meant it was left up to judges to decide if it was practical for a deaf person to serve and, within months of the ruling, two different judges gave conflicting decisions about deaf people serving. In November 2010, another deaf person, also represented by FLAC, was asked to leave the jury box in Tullamore Court because a Circuit Court judge had ruled he could not serve.
A week later, High Court Judge Paul Carney indicated it would be possible to permit a sign language interpreter to assist a deaf juror provided the signer took an appropriate oath of confidentiality. Farrell, this time representing the profoundly deaf Senan Dunne, argued modern technology and the availability of signers meant it was possible for deaf people to serve without difficulty and juries could not be representative of the general public if deaf people were excluded.
Judge Carney ruled that Mr Dunne, a teacher in St Joseph’s School for the Deaf in Dublin and a former producer with RTÉ 1’s programme for deaf viewers called Hands On, could sit on a Central Criminal Court trial jury with the aid of a sign language interpreter.
The judge said that objections to having a “13th person” in the jury room could be met by the signer taking an oath of confidentiality and the jury foreman/woman ensuring the signer was confined to translating what went on.
After Judge Carney ruled Mr Dunne could serve, lawyers for the defendant in the case objected to Mr Dunne who had to stand down.
FLAC welcomed Judge Carney’s decision, saying the exclusion of deaf persons from juries was symbolic of the fact they are not treated equally in Irish society and the ruling was an important step towards ending that discrimination.
We have to expect people will say if they cannot perform a task and trust them to say that
Brendan Lennon of Chime, an organisation advocating for people with hearing impairment, says the Clarke decision was an “important victory” in the battle for equal rights for hearing impaired people and probably assisted the passage into law of the Irish Sign Language Act.
While welcoming the fact that Kevin Dudley Junior became, in December 2017, the first deaf person to be empanelled for jury service, Lennon points out that a deaf person has yet to serve on a jury to the point of a verdict.
Dudley was empanelled to serve as a juror in a Dublin Circuit Criminal Court case without any objection and was sworn in the same week that the Dáil passed a Bill recognising the Irish Sign Language Act. Although the trial ultimately did not continue because the accused pleaded guilty, Judge Sinéad Ní Chúlacháin, when discharging the jurors from service, described it as an “historic” day for the rights of deaf people.
Noting that the laws preventing women serving on juries were only lifted during her lifetime, Ní Chúlacháin said the six women on the jury in this case, as was the case with the deaf man, were clearly “well capable” of serving and no difficulty had been presented.
“I hope that in years to come the idea that a deaf person couldn’t be a juror will be considered as odd as the idea that a woman can’t.”
Dr Eilionóir Flynn, director of the Centre for Disability Law and Policy at NUI Galway, points out that court hearings may involve disabled witnesses, plaintiffs or defendants and having a disabled person on a jury can contribute to a person’s sense they are being tried by a jury of their peers.
“Most people try to get out of jury service but many people with disabilities would like to do their civic duty. They see jury service as part of the civic duty of fulfilling responsibilities to society.”
Flynn welcomes the provision in the Disabilities Bill, which passed Committee stage in the Dáil last week, that no deaf person will be ineligible to serve on a jury because they will need an Irish sign language interpreter.
Other obstacles remain, including concerning the eligibility of people with intellectual and learning disabilities for jury service, which are not addressed in the Bill, she says.
Steps should be taken to support access to jury service for people with disabilities who use personal assistants but the Bill also does not address their position, she notes.
Flynn accepts that valid concerns have been raised, for example, regarding the ability of a blind person to read a map or watch CCTV evidence if called to serve as a juror, but she considers many of those can be addressed by provision of appropriate materials and other measures.
“People should also be trusted to know their own limitations and point them out to the judge before being empanelled,” she adds. “We have to expect people will say if they cannot perform a task and trust them to say that.”
The Courts Service is aware that, in relation to court users, witnesses and jurors, “no two people with a disability are affected in the same way or to the same degree” and the service seeks to be flexible in responding to their needs, a spokesman says.
The service has a disability liaison officer and staff at every level have undertaken a series of disability awareness training programmes. When a person with a hearing impairment is involved in a case, the service also provides for an ISL interpreter.
The service has also completely refurbished or constructed 65 courthouses across the country in the last two decades, “all of which are universally accessible”, according to the spokesman.
While older courthouse buildings continue to pose challenges, steps have been taken to improve access, including alterations to witness boxes to make them wheelchair accessible. Ensuring barrier free access is “a challenge”, the spokesman says.
As a protected building, the Four Courts presents particular challenges but various measures, including installing lifts and ramps, have been implemented.
Seeing disabled people in spaces like that will help break down stereotypes and attitudinal barriers. That is really important
Many of the large and imposing courthouses of old “were built more to intimidate rather than accommodate”, the spokesman accepts.
The service, he stresses, is cognisant that problems facing court users with disabilities are not confined to physical access and it has put a range of measures in place to address those. For those with hearing impairment, infrared hearing systems are provided in courtrooms.
According to Michelle Gaynor, chair of Independent Living Movement Ireland (ILMI), the old view of disability pervading Ireland is the “medical/charity model where disabled people need to be looked after or cared for and we are never respected as human beings”.
ILMI’s vision is of an Ireland “where disabled persons have freedom, choice and control over all aspects of their lives and can fully participate in an inclusive society as equals”.
That, Gaynor stresses, means disabled people being involved in all aspects of society and active participants in all societal roles, including jury duty.
She says disabled people will want to take part and play their role as a jury member when called upon and that requires putting systems in place that make society accessible.
Like Flynn, Gaynor notes several issues must be addressed if accessibility is to be ensured and she wonders if the HSE will provide, in relevant cases, for allocation of enough personal assistance hours for a disabled person to serve on a jury.
“Participation in all aspects of Irish society as equals, making our own decisions, having our voices heard, getting to do all the same things that non-disabled people do – that is what disabled people want,” Gaynor says.
“We want equality in the 21st century, and that includes being able to play our part on jury duty. Seeing disabled people in spaces like that will help break down stereotypes and attitudinal barriers. That is really important. Hearing disabled people’s voices will mean everyone will have to think differently about disability. And that’s a good place to start when we think about disability rights”.