Respect, reform and research: an empirical insight into judge-jury relations

• Author: Mark Coen - Niamh Howlin - Colette Barry - John Lynch
• Position: University College Dublin - University College Dublin - Sheffield Hallam University - PhD Candidate at University College Dublin
• Pages: 116-133

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RESPECT, REFORM AND RESEARCH: AN

EMPIRICAL INSIGHT INTO JUDGE-JURY

RELATIONS

Abstract: In March 2020, a report entitled ‘Judges and Juries in Ireland: An Empirical Study’ was launched

by Chief Justice Clarke at the Criminal Courts of Justice.

1

The report summarises the research findings of

a pioneering study conducted between 2017 and 2019, in which 22 judges and 11 barristers with experience

of criminal jury trials were interviewed. The purpose of this research was to examine the perspectives,

experiences and approaches of judges who preside over criminal trials on indictment, particularly in relation

to their interactions with the jurors who determine guilt or innocence in those cases. This article presents selected

findings from this study, focusing on judicial perspectives on the contemporary judge-jury relationship. A key

contribution of the article is that it addresses an enduring research gap by illuminating how trial judges perceive

trial by jury and their own role within it.

Authors: Dr Mark Coen (University College Dublin), Dr Niamh Howlin (University College Dublin),

Dr Colette Barry (Sheffield Hallam University), Mr John Lynch (PhD Candidate at University College

Dublin).*

Introduction

Although the vast majority of criminal cases in Ireland are tried by a judge sitting alone in

the District Court, the Constitution requires that the most serious offences are tried by a

jury.

2

While jury trial in this jurisdiction has long been the subject of what might be termed

‘traditional’ legal scholarship analysing contemporary or historical issues,

3

a dearth of

empirical research on jury trial has persisted in Ireland for many years.

4

More broadly, there

* The authors wish to acknowledge the support received from the Fitzpatrick Family Foundation in support

of this research.

1

Mark Coen, Niamh Howlin, Colette Barry and John Lynch, Judges and Juries in Ireland: An Empirical Study (UCD,

2020).

2

Article 38.5.

3

See for example Conor Hanly, ‘The 1916 Proclamation and Jury Trial in the Irish Free State’ (2016) 39(2)

Dublin University Law Journal 373; David J ohnson, ‘Trial by Jury in Ireland, 1860–1914’ (1996) 17(3) Journal

of Legal History 270; David Johnson, ‘The Trials of Sam Gray: Monaghan Politics and Nineteenth Century

Irish Criminal Procedure’ (1985) 20 Irish Jurist (ns) 109; John McEldowney, ‘The Case of The Queen v McKenna

and Jury Packing in Ireland’ (1977) 12 Irish Jurist 339; John McEldowney, ‘Stand By for the Crown: An

Historical Analysis’ (1979) Criminal Law Review 272; Mark Coen, ‘Apprehended Bias: The Case of Jurors’

(2010) 32 Dublin University Law Journal 121; Mar k Coen, ‘Interference with Jurors and its Potential Legal

Consequences’ (2011) Criminal Law and Procedure Review 142; Mark Coen, ‘Hearsay, Bad Character and Trust

in the Jury: English and Irish Contrasts’ (2013) 17(3) International Journal of Evidence a nd Proof 250; Mark

Coen and Niamh Howlin, ‘The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries’ (2018)

58(4) American Journal of Legal History 505; Mark Coen, ‘The Work of Some Irresponsible Women: Jurors,

Ghosts and Embracery in the Irish Free State’ (2020) 38(3) Law and History Review (forthcoming); Niamh

Howlin, ‘The Politics of Jury Trials in Ireland’ (2015) 3(2) Comparative Legal History 272; Niamh Howlin,

‘Irish Jurors: Passive Observers or Active Participants?’ (2014) 35(2) The Journal of Legal History 143; Niamh

Howlin, ‘The Terror of Their Lives: Irish Jurors' Experiences’ (2011) 29(3) Law and History Review 703; Niamh

Howlin, ‘Multiculturalism, Re presentation and Integration: Citizenship Requireme nts for Ju ry Service’ (2012)

35 Dublin University Law Journal 148-172; Niamh Howlin ‘Fenians, Foreigners and Jury Trials in Ireland 1865-

69’ (2010) 45 Irish Jurist 51; Niamh Howlin ‘Controlling jury composition in Nineteenth-Century Ireland’

(2009) 30(3) Jour nal of Legal History 227; a nd Niamh Howl in Juries in Ireland: Laypersons an d Law in the Long

Nineteenth Century (Four Courts Press 2017).

4

The unclear contours of the common law and constitutional restrictions on conducting empirical research

with jurors have undoubtedly contributed to this research deficit. See People (Longe) v AG [1967] IR 369 and

O'Callaghan v AG [1993] 2 IR 17.

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is also limited empirical research on Irish criminal trials generally, with existing work almost

exclusively focused on sentencing

5

and victims of crime.

6

Moreover, as the District Court

has been a particular focus for researchers,

7

there is currently a research gap in relation to the

pre-sentencing stage of Irish criminal trials for non-minor offences.

Conscious that the dynamics of Irish jury trials had not been investigated to date, we decided

to assess how judges interact with jurors in criminal trials. A number of factors make an Irish

study of judge-jury relations particularly appropriate. Firstly, as outlined above, a gap in

knowledge on jury trials in Ireland has existed for many years. The current study addresses

this gap by being the first to explore judicial perspectives, experiences and approaches using

qualitative interviews.

8

Secondly, there is a rich international literature on jury procedure and

judge-jury interactions. This reflects the significant changes to jury trials across the common

law world over the past two decades. For example, the provision of aids to deliberation,

9

judicial and legislative responses to the challenge of online jury misconduct,

10

a tendency to

have standardised, mandatory directions on particular issues,

11

and increasing emphasis on

the responsibility of judges to ensure that time is not wasted,

12

have fundamentally changed

5

Ian O’Donnell and Clare Milner, Child Pornography: Crime, Computers and Society (Willan 2007) 136-147; David

Riordan, ‘The Role of the Community Service Order and the Suspended Sentence in Ireland: A Judicial

Perspective’ (unpublished PhD thesis, University College Cork, 2009); Niamh Maguire, ‘Consistency in

Sentencing’ (2010) 10(2) Judicial Studies Institute Journal 14; and Clare Hamilton, ‘Sentencing in the District

Court: “Here be Dragons”’ (2005) 15(3) Irish Criminal Law Journal 9.

6

Ivana Bacik, Liz Heffernan, P atricia Brazil and Marguerite Woods, Report on Services and Legislation Providing

Support for Victims of Crime (Commission for the Support of Victims of Crime 2007); Shane K ilcommins, Máire

Leane, Fiona Donson, Caroline Fennell and Anna Kingston, The Needs and Concerns of Victims of Crime i n

Ireland (Commission for the Support of Victims of Crime 2010); Claire Edwards, Gillian Harold and Shane

Kilcommins, Access to Justice for People with Disabilities as Victims of Crime in Ireland (University College Cork 2012).

7

Ivana Bacik and Michael O’Connell, Crime and Poverty in Ireland (Round Hall Sweet & Maxwell 1998); Maguire

(n 5); Hamilton (n 5).

8

Qualitative research has been conducted on the pre-trial process of bail: see Mary Rogan and David Perry,

‘The Use of Pretrial Detention in Ireland: How Does the Legal Framework Operate in Pra ctice?’ (2018) 2

Criminal Law and Practice Review 113. Conor Hanly, Deirdre Healy and Stacey Scriver, Rape and Justice in Ireland

(Liffey Press 2010) examined trial records in rape cases. In a recent study, barristers and solicitors were

interviewed about the impact of the new exclusionary rule relating to unconstitutionally obtained evidence in

both summary trials and trials on indictment. See Claire Hamilton, A Revolution in Principle: Assessing the impact of

the new evidentiary exclusionary rule (Irish Council for Civil Liberties 2020) <www.iccl.ie/wp-

content/uploads/2020/10/A-Revolution-in-Principle.pdf> accessed 19 October 2020.

9

For example, see Robert G Boatright and Beth Murphy, ‘Behind Closed Doors: Assisting Jurors With Their

Deliberations’ (1999) 83 Judicature 52; Jacqueline Horan, Juries in the 21st Century (The Federation Press 2012);

James RP Ogloff, Jonathan Clough, Jane Goodman-Delahunty and Warren Young, The Jury Project: Stage 1 – A

Survey of Australian and New Zealand Judges (Australasian Institute of Judicial Administration, 2006) 22; Canadian

National Judicial Institute, Model Jury Instructions, <www.nji-inm.ca/index.cfm/publications/model-jury-

instructions/?langSwitch=en> accessed 4 August 2020.

10

For example, ‘Model Jury Instructions’ ( Judicial Institute for Scotland) < www.scotland-

judiciary.org.uk/Upload/Documents/Export_Jury_Manual_20200612_1429.pdf> a ccessed 4 August 2020;

New Zealand Law Commission, Reforming the Law of Contempt of Court: A Modern Statute (Report 10-2017) 74-84;

David Harvey, ‘The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm’ (2014) New Zealand

Law Review 203; Dennis M Sweeney ‘Worlds Collide: The Digital Native Enters the Ju ry Box’ (2011) 1

Reynolds Courts and Media Law Journal 121; Keith Hogg, ‘R unaway Jurors: Independent Juror Research in

the Internet Age’ (2019) 9(1) Western Journal of Legal Studies 1.

11

For example, compare DPP v McCarthy [2015] IECA 150 (on whether an internet warning is required in every

case) with The Crown Court Compendium, Part 1: Jury and Trial Management a nd Summing Up (Judicial College 2019)

3-1.

12

For example, Judicial College of Victoria, Vic torian Criminal Proceedings Manual, ch 6

<www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27527.htm> accessed 4 August 2020; Penny

Darbyshire, ‘Judicial Case Management in Ten Crown Courts’ (2014) Criminal Law Review 30; R v McClelland

[2015] IECA Crim 1080; Lord Justice Ju dge, Review of Efficiency in Criminal Proceedings (Judiciary of England and