Friday 21 October 2016

Dearbhail McDonald: The verdict is in - our jury selection process is a farce

Juries are meant to be representative of society as a whole. However, they are anything but, writes Dearbhail McDonald

Published 17/01/2016 | 02:30

TRIAL: Michael Lowry
TRIAL: Michael Lowry
JURY DUTY: the burden is disproportionately borne by Dubliners; the young, the old and retired, the unemployed, civil servants or those who can manage to undertake the task

Trial by jury is one of the last remaining sacred cows in the criminal justice system.

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Born by accident to replace trial by ordeal and duelling, amongst other dispute resolution techniques, the random selection of 12 peers is still prized as the only anchor by which a government can be held to the principles of its constitution.

Lord Devlin, the celebrated British judge whose father was from Co Tyrone, famously described jury trial as the lamp that shows that freedom lives.

Trial by jury was one issue focussed upon last week during Independent TD Michael Lowry's High Court judicial review action aimed at halting his trial for alleged tax offences, which he denies.

Mr Lowry, who was informed in those proceedings late last week that he may be subject to a fresh tax assessment - the DPP's Senior Counsel Remy Farrell said that Revenue's door is "always open" if he wants to clarify matters - faces up to five years in prison if convicted and cannot serve as a TD if sentenced to six months or more in prison.

The stakes arguably couldn't be any higher for Mr Lowry who claims his prosecution is unfair, unjust and "fundamentally oppressive".

The claims of foul play are denied by the Office of the DPP, which succeeded in an earlier application to have Mr Lowry's criminal trial transferred from Tipperary to the Circuit Criminal Court in Dublin.

Mr Lowry has adopted a four-strand strategy to have his trial halted. But if all else fails, he wants to be tried in Tipp.

Last week his senior counsel, Patrick Treacy, told the High Court that the transfer of his trial to Dublin breaches his rights and amounts to his being "punished for being popular" with voters in Co Tipperary where he is indeed very popular.

A TD for North Tipperary since 1987, the former Fine Gael Minister for Transport, Energy and Communications headed the poll there in the 2011 General Election on the first count with 14,010 votes.

Mr Lowry asserts simply that he wants to be tried by a jury of his peers.

It was a right denied to Thomas 'Slab' Murphy, a now convicted tax evader who is awaiting sentence following a 10-week trial at the non-jury Special Criminal Court.

Sinn Fein president Gerry Adams complained vociferously that Murphy, successfully named by the Sunday Times as a senior IRA commander, was not tried before a jury.

But he knew full well that the Supreme Court paved the way for a non-jury trial because it was "highly likely" the reason why the DPP refused a jury trial "must relate to the connections of Murphy with organisations which are prepared to interfere with the administration of justice".

For the most part, trial by a jury of one's peers is as unquestioned as it is innate.

But our current system of selecting juries makes a mockery of jury trial as a bulwark against State power and other anomalies.

To fulfil their constitutional mandate, juries (which only featured women from as late as 1976) are meant to be representative and jurors drawn from a complete cross-section of the community.

They are anything but.

In practice, the burden of jury duty is disproportionately borne by Dubliners; the young, the old and retired, the unemployed, civil servants or those who can manage to undertake the difficult task.

The recent empanelling of a 15-strong jury to try former Anglo Irish Bank executive Willie McAteer and three co-accused in a trial related to activities at the former bank, brought home to me the challenges of achieving the "constitutional completeness" of the representative jury.

Hundreds of potential jurors were called, but the vast bulk was excused. This is not surprising given the restrictions (you couldn't serve if you held shares in a bank, for example) and the fact that the trial could last for five months.

Lawyers for the accused, who could challenge up to eight jurors each without saying why, asked trial judge Martin Nolan to indicate, where possible, the reasons why a juror could not serve.

A significant amount of the panel knew either the defendants or the witnesses. The excused included former bank workers, people with health problems, those with work commitments, the self-employed, jobseekers and students.

One potential juror worked for the Troika and another was leaving the country. A few were getting married and two were refreshingly honest when they said they couldn't be impartial.

Eventually, 14 were sworn, but then the court ran out of jurors - a 15th was successfully empanelled a few days later.

Due to so many statutory exclusions, our jury pool is too small to be representative.

We don't (thankfully) screen our jurors like they do in the US and we can't quiz them about their views and attitudes - sometimes your selection comes down to your post code or the cut of your jib.

We don't pay jurors and, for most, the difficulties caused by jury service are simply too great. Yet composition matters as much as the right to a jury trial itself.

If we are serious (and we should be) about maintaining trial by jury, we must urgently reform our jury selection process or forfeit the right to truly hold the Government - and our peers - to account.

Sunday Independent

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