NUI Galway law professor Tom O’Malley has said that trying ‘ordinary’ crimes in non-jury courts, because of COVID-19 restrictions, may violate citizens’ rights under the Irish constitution.

Prof O’Malley points out that the Irish Constitution states that no Irish person can be tried on a criminal charge without a jury.

Professor O’Malley writes in his new legal blog that the essential question is whether jury trial under Article 38.5 is to be interpreted as an imperative or a right.

If it is a right, it can probably be waived. If it is an imperative it probably cannot.

Safeguard

Previous court judgments have referred to jury trial as a valuable safeguard of citizens’ rights.

Prof O’Malley writes that he is not at all confident that jury trial under the Constitution of Ireland is a right that can be waived (and the waiver of any right must always, of course, be informed and voluntary).

“If the restrictions necessary because of COVID-19 must be retained for some time to come, and to the extent that jury trials cannot safely he held, the legality and constitutionality of jury waiver may become a real issue,” he says.

Prof O’Malley continues that lawyers have correctly expressed concern that, if criminal trials have to be delayed for substantial periods, defendants may seek to have them restrained altogether on the basis that they have been denied their constitutional right to trial with reasonable expedition.

'Unwise'

“It would certainly be unwise to proceed with non-jury trials for ordinary serious offences without authorising legislation,” he concludes.

Otherwise, those convicted following such trials might later challenge their constitutionality and so do successfully.

“That state of affairs would be in nobody’s interests,” says Prof O’Malley.

However, he warns that the necessary legislation cannot be progressed in the absence of a Government and a Seanad.

Effective administration of justice

He writes that serious crimes can already be tried in the Special Criminal Court (a non-jury court) but, according to Article 38.3 of the Constitution, special courts may be established by law only for “the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order”.  

This protection applies except if the offence is a minor one triable in the District Court, or the case is being tried in the Special Criminal Court, or it is a military offence being tried by a military tribunal.