Jurors should neither profit 'nor make a loss' by serving

New academic research sheds light on the ‘black box’ nature of the conduct of trials on indictment in Ireland, Professor Claire Hamilton said last night.

Judges and Juries in Ireland: An Empirical Study, by Mark Coen, Niamh Howlin, John Lynch and Colette Barry, collates 22 judge interviews, both from the Circuit Court and the High Court.

Eleven barristers were also interviewed.

Rigorous

The “insightful, comprehensive and rigorous piece of work” will make an important contribution to criminal justice literature in Ireland, the Maynooth criminology professor said at the launch in the jury-gathering room in the Criminal Courts of Justice in Dublin 7 last night.

The research finds that judges see themselves primarily as a referee, respect jurors, believe that jurors almost always reach the ‘right’ decision, and that the State should alleviate their financial and time burden in serving.

Internet warning

Those interviewed also believe that an internet warning should be a standard direction for jurors before every trial. Jurors should also be told to report any approach from third parties.

The researchers believe that more study is needed into jury interference in Ireland. And consideration should be given to a jury orientation video.

Judicial courtesy

The research finds a change over time in judicial treatment of jurors, noting increased judicial courtesy towards jurors, and increased approachability on the part of judges.

The reasons offered include a decline in deference towards the judiciary, and the need to enhance public confidence towards the administration of justice.

The current practices of many Irish judges emphasise, instinctively, the need to treat jurors respectfully, and this chimes with academic research on the principles of procedural justice, Prof Hamilton said.

“Processes are actually more important than outcomes when it comes to confidence in criminal justice,” she said.

“The extent to which actors, such as judges, treat people with procedural justice – fairness, dignity, empathy and respect – is crucial to the impact that contact with the system has on public trust,” she said.

Given the limited contact that the public has with criminal justice agencies, other than gardaí, perceptions of courtesy and respectful treatment of jurors are an important means of extending public confidence.

Launching the research, Chief Justice Frank Clarke said that it was hugely valuable in identifying those areas where judges needed greater assistance.

Empirical research

This kind of empirical research can collaborate with practical law to give a better solution all-round, he said.

“We have always accepted the importance of the jury in our criminal justice system, but we perhaps haven’t paid a huge amount of attention to how it works in practice,” he said.

The chief justice said that issues about the inclusivity and representative nature of juries have been aired, but not enough attention had been paid to the nuts and bolts of daily practice.

Very dangerous

He added that, in an increasingly complex world, making decisions without adequate data was very dangerous.

“I suspect [that] everyone who has practised in the legal system in Ireland knows of the reforms that were introduced that actually turned out to be counter-productive, that made cases more complicated rather than less complicated,” he said.

Genuine research-based data had a better chance of improving matters, he said.

“I see this report as potentially a template for future research in many areas that are of relevance to the way in which the courts conduct their business,” he said.

Crime was now a lot more complicated than it used to be, and trials were taking a lot longer to complete.

Burden

“The burden therefore, on jurors, is a lot more,” the chief justice said.

“When I was a young barrister, it was very unusual for a criminal trial to last more than a day or two.”

Requiring jurors to be there for four, six, or eight weeks was a much greater burden on people who had a day job, he said.

Long trials necessarily excluded certain categories of people as jurors, he added.

“We will continue to place an impermissible burden on juries if we don’t work out better ways of running jury trials, and the system will be less good than it might be,” he said.

Chief Justice Clarke said that the more complex the expert evidence, the more the court needed to use modern techniques to make it easily understandable for jurors.

Different ways of presenting evidence must be part of the picture, he said, particularly in jury trials. 

Use of technology

The report recommends enhanced use of technology in jury trials as an aid to communication and understanding, as well as the proper utilisation of video links.

However, the researchers caution against supplying jurors with tablets, or route-to-verdict aids.

Civic good

The report suggests launching a public information campaign about the importance of jury service as a civic good.

The chief justice said that the more complex the expert evidence, the more the court needed to use modern techniques to make it easily understandable for jurors.

“Perhaps judges need it, too. Some of that evidence isn’t easy for judges to understand, unless it’s in an area the judge is familiar with.

“Commercial judges tend to know about accounts. Judges who do complex clinical negligence cases probably know as much about some areas of medicine as do some doctors, but not everyone has the expertise that they need.

“That’s doubly so for juries,” he said.

Expert evidence

“That’s the kind of thing we could collaborate on – how would a jury be best able to have communicated to them, in an intelligible way, to allow them to make a real judgment on often complicated expert evidence?” he suggested.

There was an assumption in the past that judges came “perfectly formed”, but, now, there is an increasing recognition of the need for judicial training.

The chief justice said the Judicial Council Training and Education Committee has now been established, with Justice Aileen Donnelly as one of its members. This will build a much more ambitious training programme than has been previously available.

Judicial skills college

Chief Justice Clarke said that he hoped to replicate the Scottish judicial training college, and a case for funding has already been made to Government.

“It’s really very much a judicial skills college, rather than teaching the law,” he said.

“There is a skills end to the judge’s job, which may perhaps come naturally for some people, but which may well need enhancement for all of us, in different areas,” he said.

He added that the Scottish model allowed judges not to sit for a certain number of days while they were in training.

“That means there needs to be more judges to cover for that,” he said.

“For all my life, [Irish] judges have had a model where they sat every day hearing cases.”

The chief justice pointed out that the style in which charges were made to juries could vary widely in different countries.

In the US, there are rigorous, standard forms, read out without variation.

“We are probably at the very freestyle end of the scale, where some quite large degree of discretion is given to judges. But these are things well worth looking at,” he said.

‘Reform long overdue’

One of the four authors, Dr Mark Coen of UCD’s Sutherland School of Law, quoted Lord Devlin: “Each jury is a little parliament”, and “Trial by jury is the lamp that shows that freedom lives.”

Dr Coen said that reform of jury law and procedure at a legislative level was long overdue.

The Fennelly Report of 2003 recommended the introduction of preliminary hearings, but this had not been acted upon, despite the support of the judiciary.

With preliminary hearings, juries would not have to be empanelled and then sent away for a week or so while legal issues were decided.

Ruinous

Dr Coen said that paying flat-rate expenses to jurors would not be financially ruinous to the State, and had the support of judges interviewed by the researchers.

“Jury service is a civic obligation. 

"You shouldn’t be paid to do it, you shouldn’t profit from it, but you shouldn’t be out of pocket either,” Dr Coen commented.

He said that judges were very conscious of matters such as poor parking facilities, and some had suggested giving jurors Leap Cards, to reduce the financial burden of travel to court.

Thorny issue

“A number of judges said, in practice, they would lean in favour of exempting self-employed people from serving on juries because the burden, financially, is just too great,” he said.

“It’s a thorny issue, because it’s not a fair burden,” he said.

Employers carry the burden for employed jurors, but, in some countries, the state pays those who serve on juries, with no obligation on bosses.

Ireland is unique in that the entire burden is cast away from the State and on to other parties, he said.

This all raises issues about how representative the jury pool is, Dr Coen said.

Each individual jury does not have to be representative, but they must be drawn from a jury pool, which is representative.

In her remarks, Prof Claire Hamilton said that there were remarkable changes in the conduct of criminal trials in recent years, such as the introduction of video evidence -- but a dearth of research into judge-jury interactions in Ireland.

Disconnect

There is a real disconnect between the teaching of criminal law, criminal procedure and evidence in universities, and its operation in practice, she said.

“Given that I am one of the few people in Maynooth to have actually practised law, this gap appears to me to be a significant one,” she said.

The divide could only be bridged through further research into Irish criminal trials, she said, to the benefit of academics and their students, but also practitioners who would gain much from a broader picture, situated in comparative law.