Reform of the jury system is long overdue

Each year thousands of people are summoned to courts around the country to decide if their fellow citizens have committed the most serious criminal offences. Hundreds undertake this task annually, often for weeks and sometimes months. While judges who preside over criminal trials are very conscious of the enormous contribution jurors make to the administration of justice, the system can appear indifferent to their needs.

Jurors may incur significant expense in travelling to court but will not be reimbursed by the State. They may be selected for a particular trial and be ready to serve, only to be told that they are not needed for a number of days while legal issues are determined. When they finish their jury service they will have no opportunity to give feedback on the process in which they have played a central role. They may have seen and heard traumatic or upsetting evidence, but the State provides them with no counselling or support.

Reform of the jury system is long overdue. In 2013 the Law Reform Commission published its Report on Jury Service, recommending a raft of changes to law and procedure. However, nothing has been done in relation to important recommendations on issues including the composition of juries, the introduction of a system of deferral of jury service and an expenses regime, or the creation of a statutory offence of jury misconduct. A Justice Sector Working Group is currently examining these issues.

Research by the Sutherland School of Law found that judges hold jurors in high esteem. They point to the incisive questions they ask and the obvious seriousness with which they undertake their task. They emphasised that jurors should be treated with respect and that the system should inconvenience them to the least possible extent. They also believe that the treatment of jurors could be improved. A number of these changes would require legislation.

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The judges in our study advocated the introduction of a system of juror expenses without delay. One judge captured the overall sentiment when they said that people should not be paid to undertake a civic duty, but nor should they be at a financial loss for doing so.

Another area which judges identified as requiring reform was the absence of a mechanism to determine legal issues in advance of the trial. At present a jury must be empanelled and then excluded from the courtroom, sometimes for days, while the issues are determined. A committee chaired by Mr Justice Fennelly called for the introduction of preliminary hearings to address this problem in 2003. The current Director of Public Prosecutions has also called for legislation on this matter.

Although we interviewed judges and barristers, the voice of the juror is absent from our study. This is because it is not clear if Irish law permits the interviewing of former jurors about their jury service. There is a general legal principle that a jury’s deliberations are secret. Jurors are routinely warned by judges not to discuss the case they are hearing with anyone outside the jury, including their friends and family members. It is unclear how far this secrecy rule extends.

In Australia and New Zealand, countries with similar rules regarding jury secrecy, it has been possible for academics to survey former jurors to learn about their experiences. The results of such research are published without identifying individual trials or jurors. This has helped academics, policymakers, judges and lawyers to better understand the needs and concerns of jurors and provided an evidence base for law reform and changes in practice.

We argue that provision should be made by law for academic research involving former jurors. This is yet another area of the law in which reform has been recommended by the Law Reform Commission, first in the early 1990s and most recently in 2013. The vast majority of judges we interviewed supported the idea of research with former jurors. They pointed to the lack of feedback about jurors’ experiences and the undesirable information deficit this creates. In the absence of legislation on this issue, a committee of judges should be established to review applications for academic research involving former jurors. Such a system would provide a framework within which research could be conducted without fear of criminal prosecution.

Jury service receives little attention in public discourse but is vital to the trial of serious offences. In our research, judges who presided over jury trials pointed to a number of ways in which the system could be reformed to make jury service less burdensome. This is very helpful but a missing piece remains - the insights and perceptions of jurors themselves.

Dr Mark Coen and Dr Niamh Howlin are members of the Institute of Criminology and Criminal Justice at the Sutherland School of Law, University College Dublin. Judges and Juries in Ireland: An Empirical Study was launched by the Chief Justice on Tuesday.