O'Callaghan v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 25 February 1993
• Date: 25 February 1993
• Docket Number: [S.C. No. 216 of 1992]
• Court: Supreme Court

O'Callaghan v. The Attorney General

Dermot O'Callaghan

Plaintiff

and

The Attorney General and The Director of Public Prosecutions, Defendants

[S.C. No. 216 of 1992]

Supreme Court

Constitution - Right to trial with a jury - Right to trial in due course of law - Oireachtas providing for majority verdicts in criminal trial - Whether provision within legislative competence of Oireachtas - Whether unanimity essential feature of jury verdict in criminal trial - Whether interference with decision making process of jury - Whether breach of confidentiality of deliberations of jury - Whether provision invalid having regard to Constitution - Juries Act, 1976 (No. 4), ss. 9, 23 and 24 - Criminal Justice Act, 1984 (No. 22), s. 25 - Constitution of Ireland, 1937, Article 38, ss. 1 and 5, Article 40, section 3.

Article 38, s. 1 of the Constitution of Ireland, 1937, provides that no person shall be tried on a criminal charge save in due course of law. Article 38, s. 5 of the Constitution provides that no person shall be tried on a criminal charge without a jury, save for certain exceptions not relevant hereto. By virtue of Article 40, s. 3 of the Constitution, the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate, the personal rights of the citizen.

Section 25 of the Criminal Justice Act, 1984, provides that the verdict of a jury in a criminal trial need not be unanimous in a case where there are not fewer than eleven jurors, if ten of them agree on the verdict and it appears to the court that the jury have had such period of time for deliberation, being not less than two hours, as the court thinks reasonable having regard to the nature and complexity of the case.

By virtue of s. 9, sub-s. 7 and ss. 23 and 24 of the Juries Act, 1976, a criminal trial may proceed with less than ten jurors in specified circumstances.

The plaintiff was convicted on criminal charges by the majority verdict of a jury, and the conviction was affirmed by the Court of Criminal Appeal. The plaintiff sought a declaration that s. 25 of the Act of 1984 was invalid having regard to Article 38, ss. 1 and 5 and Article 40, s. 3 of the Constitution. He further sought to have his conviction quashed and the confirmation thereof set aside.

In the High Court and the Supreme Court, the plaintiff contended that the unanimous verdict of a jury was an essential feature of the right to trial in due course of law and of the right to trial with a jury; that it was not within the legislative competence of the Oireachtas to remove the requirement of unanimity; and that to permit a jury to return a majority verdict after two hours was to transform the basis of the jury's decision after that time, constituting a conscious and deliberate interference with the decision making process of the jury, contrary to Article 38, ss. 1 and 5 and Article 40, s. 1 of the Constitution.

On appeal, the plaintiff was allowed to argue another ground, namely that to permit a majority verdict was to breach the confidentiality of the deliberations of the jury which was presupposed by Article 38, section 5.

The plaintiff's claim was dismissed by the High Court - see [1992] 1 I.R. 538.

Held by the Supreme Court (Finlay C.J., Hederman, O'Flaherty, Egan and Costello JJ.), in dismissing the plaintiff's appeal, 1, that s. 25 of the Act of 1984 should be read in conjunction with ss. 9, 23 and 24 of the Act of 1976.

2. That the operation of jury trials in criminal cases should not be regarded as fixed and immutable.

Dicta of Henchy J.in The People (Director of Public Prosecutions) v. O'Shea[1982] I.R. 384 and of Walsh J. in de Burca v. The Attorney General[1976] I.R. 38 approved.

3. That the purpose of trial by jury was to provide that a person should get a fair trial in due course of law and be tried by a reasonable cross-section of people, acting under the guidance of the judge, bound by his directions on law but free to make their findings as to the facts; that the essential feature of a jury trial was to interpose, between the accused and the prosecution, people who would bring their experience and commonsense to bear on resolving the issue of the guilt or innocence of the accused; and that a requirement of unanimity was not essential to that purpose.

4. That, where at least ten members agreed with the verdict, it could not be argued that the verdict was not the verdict of the jury.

Semble: That if the majority required was substantially lowered, the decision might lose its character as a decision of the jury.

5. That the provision of the two hour minimum for deliberation gave the minority on the jury sufficient time to win others over to their point of view; that the passing of the time limit did not constitute interference with the decision-making process of the jury; and that none of the rights of an accused person were breached by accepting a majority verdict after two hours.

6. That, since s. 25 of the Act of 1984 was concerned only with the verdict of the jury it did not breach the confidentiality of the jury's deliberations.

The People (Attorney General) v. Longe [1967] I.R. 369 distinguished.

Semble: That it was important for the preservation of the central position of the jury trial in the constitutional scheme, that the nature of the deliberation of a jury in a criminal case should not be...