There are precedents for special juries in certain cases, writes NIAMH HOWLIN
RECENTLY RETIRED Director of Public Prosecutions James Hamilton has suggested complex criminal cases involving bankers should be tried before specialised “expert” juries.
All such cases are currently tried before 12 randomly chosen citizens, supposedly representing the community at large. According to the former DPP, the voluminous and complex nature of the evidence in commercial criminal cases means prosecutors must be selective in the charges they bring in order to have a reasonable chance of securing a conviction.
The result is that in many cases the jury is not presented with a full picture of the nature and scale of the defendant’s conduct.
Under current legislation, Irish juries are unrepresentative of the community. Generally speaking, non-citizens, along with the vast majority of professionals, students and the self-employed, do not sit on juries.
This is in stark contrast to the United Kingdom and the United States, where professionals, including doctors and lawyers, can and do sit on juries. Indeed, the Law Reform Commission has been considering changes in this area.
However, even if radical changes are introduced to make Irish juries more representative, the difficulties of lay jurors encountering large amounts of detailed and technical information will remain.
The idea that certain types of cases require differently constituted juries raises some interesting considerations. The proposal is not as radical as it may first appear, and has a strong historical precedent in Ireland.
Until early in the 20th century, cases concerning matters of technical or specific expertise were routinely tried by so-called “special juries”.
By the time of their abolition in 1927, the main difference between special and “common juries” was that while all jurors had to hold rateable property, those who sat on special juries had to be rated for a higher value. This served little purpose, and in the 1920s was described by Kevin O’Higgins as something of “a survival of class legislation”.
However, the special jury as originally constituted was genuinely an attempt to ensure a level of expertise among jurors dealing with complex issues. Unlike the DPP’s recent proposal, specifically qualified special jurors were not empanelled to deal with specific types of cases; a special jury hearing a case concerning banking fraud would not necessarily consist of bankers, for example.
Instead, there were general special qualifications; for example, special jurors could be wholesale merchants, knights, bankers or magistrates. They were principally used in civil cases, and came to prominence in 18th century London for the trial of commercial cases.
They tried cases involving debt, contract, patents, the sale of goods, labour disputes, bankruptcy and non-commercial issues such as negligence, trespass, assault, libel and nuisance.
By the 19th century, their remit had further broadened to include cases of corruption, conspiracy and bribery. Special juries were also sometimes used in criminal cases – usually in political trials, including the high-profile cases of Daniel O’Connell in 1844 and Charles Stewart Parnell in 1881.
Other countries have tried different approaches to the trial of fraud offences. Some countries use lay assessors, whose role is somewhere between an expert witness and a juror. Sometimes the lay assessors are appointed for a term and hear a variety of cases.
More useful in an Irish context, however, would be expert lay assessors who only hear specific types of cases. Legislation in New Zealand gives persons accused of fraud the option to have their case heard by a judge sitting alone.
Similarly, in the United Kingdom, as well as a Serious Fraud Office which investigates and prosecutes complex fraud and corruption cases, the Criminal Justice Act 2003 provided for judge-only trials in such cases. However, this proposal has proven unpopular and has yet to be implemented.
An advantage of using expert juries would be the ability to dispose of cases more efficiently, with less time spent explaining the basics of financing, accounting and banking practices. It could also promote more accurate decision-making, enhancing confidence in the criminal justice system and ensuring defendants’ rights to a fair trial.
On the other hand, there is popular attachment to the ideal of the representative and impartial jury, and there may be public resistance to any move impinging on this. There may also be additional expense involved in conducting such trials if, as the DPP proposes, experts are to be drawn from other countries in order to ensure impartiality.
Of course, any change to jury composition will also have significant constitutional implications. Article 38.5 of Bunreacht na hÉireann guarantees trial by jury for non-minor offences. This has been interpreted by the Supreme Court in the landmark 1976 case of de Búrca and Anderson v Attorney Generalas meaning "trial in due course of law by a group of laymen . . . chosen at random from a reasonably diverse panel of jurors drawn from the community".
The court also ruled “the jury must be drawn from a pool broadly representative of the community so that its verdict will be stamped with the fairness and acceptability of a genuinely diffused community decision”.
Clearly a constitutional amendment would be necessary in order to ensure the constitutionality of expert or specialised juries.
As recent experience shows, any proposed amendment ought to be well thought out, carefully drafted and clearly communicated to the public in order to have any chance of being accepted.
At the very least, such a referendum would prompt public debate over the current and future role of the jury within the criminal justice system.
Dr Niamh Howlin is a lecturer at the school of law at Queen’s University Belfast