O'Callaghan v Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1991 No. 11612P]

O'Callaghan v. Attorney General

Dermot O'Callaghan

Plaintiff

and

The Attorney General and The Director of Public Prosecutions, Defendants

[1991 No. 11612P]

High Court

Constitution - Right to trial with a jury - Right to trial in due course of law - Oireachtas providing for majority verdicts in criminal trials - Whether provision within legislative competence of Oireachtas - Whether unanimity an essential feature of jury verdict in criminal trial - Whether an interference with the decision making process of the jury - Whether provision invalid having regard to Constitution - Criminal Justice Act, 1984 (No. 22), s. 25 - Constitution of Ireland, 1937, Article 38, ss. 1 and 5.

Article 38, s. 1 of the Constitution provides that no person shall be tried on a criminal charge save in due course of law. Article 38, s. 5 provides that, save in certain specified circumstances, a person shall not be tried on a criminal charge without a jury.

Section 25 of the Criminal Justice Act, 1984, provides that the verdict of a jury in a criminal trial need not be unanimous, provided that at least ten of the twelve jurors agree on the verdict and that the jury has had at least two hours for deliberation before returning a majority verdict.

The plaintiff was convicted of offences of larceny and robbery by majority verdict of a jury in Dublin Circuit Criminal Court in March, 1989, which conviction was confirmed on appeal to the Court of Criminal Appeal.

The plaintiff sought a declaration that s. 25 of the Act of 1984 was invalid having regard to the provisions of Article 38 of the Constitution and also sought orders quashing his conviction in the Circuit Criminal Court and setting aside the order of the Court of Criminal Appeal confirming the conviction. The plaintiff argued that a unanimous verdict of the jury was an essential element of the right to trial in due course of law and to the right to trial with a jury and that it was beyond the legislative competence of the Oireachtas to remove the requirement for unanimity. The plaintiff also submitted that permitting the jury to return a majority verdict after two hours transformed the basis of the jury's decision after that time and constituted a conscious and deliberate interference with the jury's decision-making process in violation of Article 38, s. 5.

Held by Blayney, in refusing the relief sought, 1, that s. 25 of the Act of 1984 enjoyed a presumption of constitutionality and consequently the burden was on the plaintiff to establish clearly that the section was invalid having regard to the provisions of the Constitution.

The Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413 and In re the Offences Against the State (Amendment) Bill, 1940[1940] I.R. 470 applied.

2. That the essence of trial by jury was that the decision as to the guilt or innocence of the accused was made by a group of the accused's fellow citizens and not by a judge or group of judges. A trial resulting in a decision taken by a substantial majority of that group, as provided for in s. 25 of the Act of 1984 which required a majority of 10 at least, was no less a trial by jury than a trial where the decision was unanimous.

de Búrca v. The Attorney General [1976] I.R. 38 and Melling v. Óó Mathghamhna[1962] I.R. 1 considered.

Quaere: Whether, if the necessary majority was substantially lowered, the verdict of such a majority could properly be characterised as a decision of the jury.

3. That the essential function of a jury was to interpose between the accused and his accuser the commonsense judgement of a group of laymen who were representative of a cross-section of the community and who could deliberate on the question of the accused's guilt free from outside interference. This function was equally well served whether juries were required to act unanimously or whether they were permitted to convict or acquit by votes of 10 to 2 or 11 to 1.

Opinion of White J. in Apodaca v. Oregon (1971) 406 U.S. 404 at pp. 410-411 adopted.

4. That a person accorded his constitutional right to trial by jury was necessarily tried in due course of law and it followed, having regard to the previous finding that s. 25 of the Act of 1984 did not interfere with the right to trial by jury, that the plaintiff had been tried in due course of law.

In re the Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 considered.

5. That the provision in s. 25 requiring a jury to deliberate for at least two hours before a majority verdict could be accepted by a court did not in any way interfere with the jury reaching its decision but merely enabled it to reach a decision which otherwise would not have been open to it. The basis for the jury's decision, whether unanimous or by majority, was at all times the evidence given at the trial.

Cases mentioned in this report:—

Apodaca v. Oregon (1971) 406 U.S. 404.

de Búrca v. The Attorney General [1976] I.R. 38; (1977) 111 I.L.T.R. 37.

Duncan v. Louisiana (1967) 391 U.S. 145.

In re the Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129; (1976) 110 I.L.T.R. 69.

In re the Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470; (1940) 74 I.L.T.R. 61.

Melling v. Ó Mathghamhna ó mathghamhna [1962] I.R. 1; (1963) 97 I.L.T.R. 60.

The Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413.

Williams v. Florida (1969) 399 U.S. 78.

Plenary Summons.

The facts are summarised in the headnote and are fully set out in the judgment of Blayney J., post.

The provisions of s. 25 of the Criminal Justice Act, 1984, are fully set out in the judgment of Blayney J.

By plenary summons dated the 7th August, 1991, the plaintiff sought the following reliefs:—

• (1) A declaration that s. 25 of the Criminal Justice...