Trial by Jury in a Pandemic

Mark Coen, University College Dublin

In addition to the anxiety and loss of life it has caused, Covid-19 has disrupted many settled features of twenty-first century life. All of us have experienced significant and unexpected changes in how we work, socialise and interact with others. Public institutions have been forced to radically alter how they do business, with parliamentary sittings and the conduct of state examinations among the prominent examples in Ireland. The pandemic challenges old certainties and obliges us to radically rethink how long-established systems can be adapted to accommodate public health imperatives. One institution that has yet to fully navigate these practical hurdles is trial by jury.

Although the vast majority of criminal offences are tried by a District Court judge sitting alone, trial by jury is constitutionally required for the most serious offences in Ireland. Jury service takes place in an intimate environment. A large group of potential jurors answers a summons requiring them to attend court. They congregate together and individual juries are empanelled from the assembled group. Once sworn, jurors sit in a confined area - usually a jury box. They are provided with a small jury room, where they remain during periods of legal argument and in which they will ultimately conduct their deliberations. Under s 25(3) of the Criminal Justice Act 1984 a majority verdict cannot be accepted unless the jury has deliberated for at least two hours. Deliberations may last several hours or a number of days. This brief sketch of how juries traditionally experience trials illustrates that the proximity of the jurors, the confined spaces in which they work and the duration of their exposure to each other and to court personnel is not compatible with the current public health guidelines. A range of solutions, both practical and legal, fall to be considered when assessing how jury trials can take place during a pandemic.

The most obvious way of ensuring that jury trials may continue is to seek logistical solutions that allow for physical distancing of all actors involved in the trial. Some of these, such as the use of a second courtroom as a jury room, the seating of some of the jurors outside the jury box or in the body of the court, and the placing of members of the public in a room with a live television link to proceedings, have already been used in the jury trials that were ongoing at the time of the Coronavirus outbreak. At the time of writing, only one jury trial is in progress in the State, that of Aaron Brady for the murder of Detective Garda Adrian Donohoe. When the jury in that case is sent out for legal argument it is apparently divided into a number of jury rooms with a number of jury minders. (The jury will conduct its deliberations in a larger space). It is arguable that having a number of jury rooms operating during the trial is not the best legal solution to a practical problem. It is possible that one subgroup of jurors could discuss the evidence in the absence of the others. While the Court of Appeal (DPP v Fitzpatrick [2015] IECA 233; DPP v Wynne [2017] IECA 17) has stated that the old direction that jurors should not discuss the evidence in advance of receiving the judge’s charge should no longer be given, its decisions on the question presuppose that the jury will be kept together. An irregularity could be said to arise where jurors are discussing the evidence prior to deliberations in the absence of other jurors.

The Courts Service is currently planning for the commencement of new jury trials on Monday 20 July. From an operational perspective, the physical distancing requirements necessitate more space for each trial and fewer people can present in response to a jury summons. It is estimated by the Courts Service that the normal workload of 10 or 12 jury trials per week in the Criminal Courts of Justice in Dublin will be reduced to 4 per week. It seems likely that the reduced capacity will lead to an increasing backlog of jury trials and consequent delays for accused persons, witnesses, victims and their families. Like its counterparts in other countries, the Courts Service is investigating alternative venues but there are many considerations to bear in mind in designating a building as a location for a jury trial, including security and keeping the various actors separate from each other. Twenty years ago, the fact that a jury’s deliberations could be overheard in the Four Courts caused a trial to collapse, so the physical location of a trial can have legal implications.

Turning to legal as opposed to practical modifications, the most drastic solution would be to abandon jury trial altogether for the duration of the pandemic. Tom O’Malley has raised this issue, stating that the permissibility of this reform would turn on whether trial by jury is right (that could be waived) or an imperative that cannot be departed from. While the courts have, in a number of cases, referred to a right to trial by jury (most notably in de Búrca v AG [1976] 1 IR 38 but also in subsequent cases, eg DPP v O’Shea [1982] IR 384, Minister for Justice v Ciaran Maguire [2020] IEHC 77), it is more correctly viewed as a constitutional requirement. This was the view taken by the Constitution Review Group and by Hogan and Whyte (2004). In de Búrca Walsh J stated that jury trial in Ireland was ‘not simply an option open to the accused but…a system imposed by the Constitution.’ One could also argue that an imperative may give rise to a right that cannot be waived. This appeared to be the position of O’Donnell J in Murphy v AG [2014] 1 ILRM 457 when he stated: ‘Trial by jury is both an important constitutional right of the citizen and a constitutional obligation on the State.’ It is thus highly unlikely that the courts would uphold the constitutionality of a statute that sought to permit accused persons to elect for judge-only trial in respect of non-minor offences.

Another, more controversial, avenue that could be pursued to introduce non-jury trials for serious offences would be to argue that the criteria in Article 38.3.1° are satisfied. This argument would proceed on the basis that because of the pandemic, ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.’ Given the practical steps outlined above that may be taken to permit the ordinary jury courts to function, it is highly doubtful that the constitutional threshold of inadequacy has been reached. One could go further and say that while Covid-19 has rendered the holding of jury trials more difficult, those trials are perfectly adequate to administer justice when they occur. While the Kavanagh case ([1996] 1 IR 586) evinced a deferential approach on the part of the judiciary to executive assessment of whether or not the ordinary courts are inadequate, any attempt to introduce judge-only trial would be highly controversial. The current judge-only court, the Special Criminal Court, is associated with terrorist and organised crime prosecutions. A shift to judge-only trial for non-minor crimes would not find favour with the judges who preside over jury trials and would be strongly resisted by civil liberty campaigners and others.

Amendment of the existing jury system rather than temporary abolition of jury trials is the more obvious solution. One such amendment would be to reduce the number of jurors, a subject also discussed in a recent blog by Tom O’Malley. The term ‘jury’ is not defined in the Constitution and in de Búrca Walsh J stated obiter that a jury did not have to consist of 12 members in order to be constitutionally compliant. For hundreds of years the unanimity of jury verdicts was regarded as essential, but the Irish courts upheld the constitutionality of majority verdicts in O’Callaghan v AG [1993] 2 IR 17. Constitutionally, It appears that once the jury retains its essential character as a body of lay people drawn from a representative pool who determine the guilt or innocence of the accused, the Oireachtas is free to alter other, less intrinsic aspects of the institution. In relation to changing the number of jurors, the legislators would be in the realms of guesswork in terms of what number to nominate, as the courts have given no guidance on this question and there must be a minimum number below which a body of people would cease to be a jury for constitutional purposes. The potential for different perspectives to inform the deliberations is reduced as the number of participants decreases, moving away from one of the key rationales for jury trial. The legitimacy of majority verdicts from a jury of reduced size and the number of jurors that such a jury could ‘lose’ (eg due to illness or bereavement) and continue without would also need careful examination. If the decision were taken to reduce jury size, it would be prudent to pass a very short Juries Bill, in the hope and expectation that it would be referred to the Supreme Court by the President under Article 26.

Other changes to the law could include the introduction of preliminary hearings, which has been called for by the Bar Council in its document ‘Criminal Jury Trials during the Covid-19 Pandemic’. Such hearings would reduce the length of jury trials by enabling legal issues to be resolved in advance of empanelling a jury. They have been called for by the judiciary since the Report of the Working Group on the Jurisdiction of the Courts (2003). Conor Hanly and Rónán Kennedy have proposed the abolition of the peremptory challenge as a partial Covid-19 response, which is an interesting proposal. Each accused in a trial, and the prosecution, are entitled to 7 challenges without cause at the empanelment stage, necessitating a larger group of would-be jurors to present at court. While total abolition of the peremptory challenge might raise issues of fairness (or perceptions of fairness) for accused persons, reducing the number to two or three per person would be a sensible reform.

The Irish courts system is not alone in grappling with the above questions. The challenges are the same in jurisdictions such as Scotland and New Zealand, which are also about to recommence the holding of jury trials. The state of Victoria in Australia amended the law in April to allow for judge-only trial, and the first trial under those provisions has recently concluded. In England and Wales, the discourse has shifted from suspending jury trial to talk of reducing jury size and setting up ‘Nightingale courts’ (the Justice Secretary prefers the appellation ‘Blackstone courts’) – emergency courts in buildings that will allow for the proper social distancing of jury trials.

Few could have predicted that questions like the number of people on a jury would be a live issue in 2020, or indeed that jury trials would grind to a halt for several months. The best approach for Ireland is to start, as the Courts System is doing, with practical measures. The Oireachtas should assist by enacting measures that will improve efficiency without disturbing the fundamental characteristics of trial by jury. The introduction of pre-trial hearings and a reduction in the number of peremptory challenges are obvious places to start. Depending on how the public health emergency develops, some hitherto unthinkable reforms may be necessary in the longer term.

Mark Coen is lecturer in law at the Sutherland School of Law, University College Dublin. He is co-author of 'Judges and Juries in Ireland: An Empirical Study' (UCD 2020).

Suggested citation: Mark Coen, 'Trial by Jury in a Pandemic' COIVD-19 Law and Human Rights Observatory Blog (24 July 2020) http://tcdlaw.blogspot.com/2020/07/trial-by-jury-in-pandemic.html

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