De Burca v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1977
• Date: 01 January 1977
• Docket Number: [1972 No. 2130 P.]
• Court: Supreme Court

de Burca v. Attorney General

Máirín de Burca and Mary Anderson

Plaintiffs

and

The Attorney General

Defendant

[1972 No. 2130 P.]

High Court

Supreme Court

Constitution - Statute - Validity - Equality before the law - Juries - Criminal trial with jury - Non-ratepayers and women excluded from jury lists - Juries Act, 1927 (No. 23), ss. 2, 3, 5, 16 - Constitution of Ireland, 1937, Articles 15, 38, 40, 50.

A list of jurors prepared in accordance with the provisions of the Juries Act, 1927, for a particular jury district consisted of the names of the ratepayers in that district who were qualified and liable to serve as jurors and who were not exempt from such service by the provisions of the Act. Every issue triable with a jury was required to be tried with a jury drawn from a panel of jurors selected from the list for the appropriate district. Section 3 of the Act of 1927 enacted that every ratepayer aged between 21 and 65 years was "qualified and liable" to serve as a juror provided that (a) he was rated in respect of land having a rateable valuation in excess of a prescribed minimum and (b) he was not exempt from such service. Section 5 of the Act stated that "women" were exempted from serving as jurors; but s. 16 of the Act allowed a woman (if otherwise qualified) to apply to have her name inserted in the appropriate list of jurors and enacted that, when her name had been so inserted, she would be qualified and liable to serve as a juror. Section 5 of Article 38 of the Constitution states that (subject to certain exceptions) no person shall be tried on a criminal charge without a jury.

The plaintiffs were returned for trial in the Circuit Court on criminal charges which were due to be tried by a judge with a jury. Before the start of the criminal trial, the plaintiffs issued a summons in the High Court and claimed declarations that the provisions of the Act of 1927 relating to the rating qualification and to the conditional exclusion of women were inconsistent with the provisions of the Constitution of Ireland, 1937, and had not been continued in force by Article 50 of the Constitution. It was established in evidence that only two women had served on juries within the ten years prior to the trial of the civil action.

Held by Pringle J., in giving judgment for the defendant, 1, that there was no presumption of law that the provisions of the Act of 1927 were consistent with the provisions of the Constitution.

The State (Sheerin) v. Kennedy [1966] I.R. 379; McMahon v. The Attorney General[1972] I.R. 69 considered.

2. That the personal rights of a citizen which are guaranteed by sub-s. 1 of s. 3 of Article 40 of the Constitution are not restricted to the rights specified in sub-s. 2 of that section.

Ryan v. The Attorney General [1965] I.R. 294 applied.

3. That the personal rights of the plaintiffs guaranteed by the Constitution did not include a right to be tried before a jury drawn from a panel of men and women who had not passed a property test.

4. That the provisions of the Act of 1927 relating to women jurors and to the property qualification for all jurors were not in conflict with the provisions of s. 1 of Article 40 of the Constitution which state that all citizens shall, as human persons, be held equal before the law.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 considered.

5. That the fixing by the Minister for Justice of the minimum rating qualifications pursuant to s. 2 of the Act of 1927 was not a usurpation of the legislative power vested exclusively in the National Parliament by Article 15 of the Constitution.

On appeal by the plaintiffs it was

Held by the Supreme Court (O'Higgins C.J., Walsh, Budd, Henchy and Griffin JJ.), in allowing the appeal, 1, that the exclusion of citizens who were not ratepayers from the lists of jurors was inconsistent with the provisions of the Constitution because—

• (a) per O'Higgins C.J. and Walsh J.—The exclusion was based on an invidious discrimination which was not authorised by the provisions of s. 1 of Article 40 of the Constitution which allow enactments to have due regard to differences of capacity, physical and moral, and of social function.

• (b) per Henchy and Griffin JJ.—A jury drawn from a panel of jurors forming part of a list of jurors from which has been excluded a class of citizens on the basis of a property qualification (as distinct from the capacity or social function of the class) is a jury which fails to satisfy s. 5 of Article 38 of the Constitution by reason of the lack of representativeness of the list of jurors.

2. (O'Higgins C.J. dissenting) That the conditional exclusion of women from the lists of jurors was inconsistent with the provisions of the Constitution because—

• (a) per Walsh J.—The exclusion, being based on sex alone, was an invidious discrimination which was not authorised by the provisions of s. 1 of Article 40 of the Constitution.

• (b) per Henchy and Griffin JJ.—The exclusion was based on sex alone (and not on capacity or social function) and had resulted in the virtual elimination of women from jury service so that a jury, constituted in accordance with the Act of 1927, did not satisfy s. 5 of Article 38 of the Constitution by reason of the lack of representativeness of the list of jurors.

Plenary Summons.

The plaintiffs claimed a declaration that s. 2 and sub-ss. 1 and 2 of s. 3 and Part II of the second schedule of the Juries Act, 1927, were inconsistent with the provisions of the Constitution of Ireland, 1937, and had not continued to be in force after the Constitution came into operation.

Section 14 of the Act of 1927 made provision for the compilation of a list of jurors for each jury district by enacting that there should be entered in the list the names of "all persons who by reason of being themselves rated or by reason of their wives being rated for the relief of the poor in respect of land in the . . . district to which the list relates are qualified and liable to serve as jurors and are not exempt or disqualified from so serving."The Act of 1927 also provided for the selection of persons from a list of jurors and the entry in panels of jurors of the names of the persons so selected. The Juries Act, 1961, provided that every issue, civil or criminal, which was triable with a jury should be triable with a jury called from a panel of jurors. Although rates are a tax payable by the occupier of a rateable hereditament in respect of his occupation of that hereditament, the rating qualification for jury service imposed by the Act of 1927 was equivalent to a property qualification since nearly every occupier of a rateable hereditament has some estate or interest in it. The Acts of 1927 and 1961 were repealed by the Juries Act, 1976.

Section 2, sub-ss. 1-3, of the Juries Act, 1927, provided as follows:—

"(1) The Minister shall by order prescribe for every jury district the rateable value of land which is to be the minimum rating qualification for jurors in that jury district and may by any such order prescribe different rateable values in respect of different classes of land.

(2) The Minister may from time to time as and when he thinks fit by order vary the rateable value prescribed by him under this section in respect of land or any class or classes of land in any jury district.

(3) The rateable value or several rateable values for the time being prescribed under this section in respect of any jury district shall be the minimum rating qualification for jurors in that jury district."

By the Jurors (Minimum Rating Qualification) Order, 1927 (S.R. & O. No. 92), as amended by the Jurors (Minimum Rating Qualification) (Co. Galway) Order, 1928 (S.R. & O. No. 56), the Minister for Justice prescribed various rateable values of lands and other hereditaments as constituting the minimum rating qualification for jury service in different counties.

Section 3, sub-ss. 1 and 2, of the Act of 1927 enacted as follows:—

"(1) Subject to the provisions of this section, every citizen of the age of twenty-one years or upwards and under the age of sixty-five years who, either in his own name or in a trade-name and whether alone or jointly with any other person or persons or as a member of a firm or co-partnership, is rated for the relief of the poor in respect of land in a jury district shall, if the total rateable value of all the land in respect of which he is so rated in such jury district equals or exceeds the minimum rating qualification for such jury district, be qualified and liable to serve as a juror for the trial of all or any issues which are for the time being triable with a jury drawn wholly or partly from such jury district, unless he is for the time being disqualified for or exempt from serving as a juror.

(2) Subject to the provisions of this section. every male citizen of the age of twenty-one years or upwards and under the age of sixty-five years who is not qualified and liable to serve as a juror by virtue of the foregoing sub-section and whose wife is rated for the relief of the poor in respect of land in a jury district shall, if the total rateable value of all the land in respect of which his wife is so rated in such jury district equals or exceeds the minimum rating qualification for such jury district, be qualified and liable to serve as a juror for the trial of all or any issues triable with a jury drawn wholly or partly from such jury district, unless he is for the time being disqualified for or exempt from serving as a juror or he proves to the satisfaction of the registration officer that he never had any interest in such land and did not directly or indirectly provide any of the purchase money thereof and that he has not a separate income, earned or unearned, sufficient for his own maintenance."

Section 5 of the Act of 1927 provided:—

"The persons specified in the First Schedule to this Act shall be absolutely freed and exempted from serving as jurors...