Whether the Appeal Process requires Reasons to be given by Criminal Juries
Paul Gallagher SC, Attorney General o f Ireland
1. Introduction
I propose to consider the issue raised in the title in the context of Irish law. In doing so, I do not criticize or offer any view on the legal systems or procedures which apply in other States. European legal conferences, such as today's, stem precisely from the fact, that despite minima of rights protection, considerable legal diversity exists at a European level. This diversity is a reflection of important social, cultural and legal differences among States, which differences are entitled to respect. Respect for such differences is assisted by an understanding of how different systems operate and it is in that context that I offer the views contained herein.
2.Trial by jury in Ireland
Article 38.5 of the Irish Constitution guarantees trial by jury for ali non-minor criminal matters. This is not an absolute guarantee; Article 38.3.1 provides for an exception. Special courts may be established by law where it is determined that the ordinary courts are inadeguate to secure the effective administration of justice. Relying on this exception, the legislature has provided that trials of subversive offences and those involving organized crime may be tried in a Special Criminal Court consisting of there judges.
Although trial by jury was famously described by Lord Devlin in an English context as "the lamp that shows that freedom lives", Lord Hoffmann giving the annual lecture of the UK's Judicial Studies Board in March of this year commented:
"... there is a human right to a fair trial [but] il does noi follow that ali countries of the Council of Europe musthave the saure trial procedure. Criminal procedures in different contries may differ widely without any of them being unfair. "
Trail by jury, as a method of adjudication in criminal matters, was enshrined by the Irish People in their Constitution because it is a process in which they have confidence and which they value greatly for gistor and other reasons. The context in which a right to trial by jury was accorded such importance was explained in People (DPP) v. () Shea [1982] by Henchy J. who said:
'The bitter Irish race-memory of politically appointed and Executive-orienied judges, of the suspension of jury trial in times of popular revolt, ... had long implanted in the consciousness of the people ... the conviction that the besi way of preventing an individual from suffering a wrong conviction f for an offènce was io allow him io put himself upon his country', that is io allow him io be tried, for that offence by a fair, impartial and representative jury ... "
The importance with which a trial by jury is regarded in Ireland is evidenced by the significant opposition ori the part of defence and human rights lawyers to any attempt to limit the right to trial by jury. A recent example of this was provided by the opposition to the
' The jury system operating in England is very similar to the jury system in Ireland.
Criminal Justice (Amendment) Act, 2009 which provides for the trial of certain organized crime offences in the Special Criminal Court because of jury intimidation.
3.Rationale of trial by jury
A jury is constituted as an ad hoc body. Jurors have neither the benefit nor the disability of being creatures of the legai institution, used to trying criminal defendants. In Melling v. O Mathghamhna [1962], O'Dalaigh J. said that the members of a jury are: "wholly independent of executive or legislative disciplines or displeasure and ... necessarily by their very numbers being to the administration of justice the commoner touch."
Trial by jury is by one's peers. In de Burca v Attorney General [1976] Henchy J. said:
"... the jury must be drawn from a pool broadly representative of the community so that its verdict will be stamped with the fairnes s and acceptability of a genuinely diffused community decision. "
In the saure case, Griffin J. said:
"The purpose of a jury is to interpose between the State and the accused person an impartial body of the accused's.fellow citizens to try the issue joined between the prosecution and the accused".
As such, he said that the jury had to be: "a body which is truly representative, and a fair cross-section of the community".
4.A requirement that juries give reasons risks misunderstanding the criminal process and the role of the jury therein
In addition to its provision for juries the Irish Constitution guarantees "trial in due course of law" for anyone brought before the court on a criminal charge. This, by and large, has had the effect of constitutionalising much of common law trial procedure. In order to be found guilty of a criminal offence in the common law system, the prosecution must prove beyond a reasonable doubt that a person has committed the offence (the vast majority of offences consisting of an actus reus and a mental element), and the prosecution must further negative beyond a reasonable doubt ali defences pleaded which are consistent with the innocence of the accused. The legal burden of proving guilt beyond reasonable doubt remains with the prosecution throughout the trial, although the accused occasionally bears an 'evidential burden' requiring him or her to show that there is some evidence which tends to support his or her raising of a particular defence.
In Ireland cases are conducted on an adversarial basis and the jury trial must be considered in that context. The prosecution presents the evidence and the judge has no role whatever in the presentation of all the evidence or in the investigation of the facts. The judge must hold the balance equally between the parties with regard to die presentation of the case and admission of evidence. Importantly, all the evidence is presented viva voce and the accused is present throughout the trial. There are stringent disclosure rules setting out what must be disclosed to an accused's legal team requiring in particular the disclosure of any evidence which may be helpful to the accused. Ali witnesses must be available for cross-examination at the trial. The
accused is not, however, obliged to put any positive case to witnesses or the Court. On the contrary, he or she is entitled to put the prosecution on proof.
There is no question of an accused being kept in the dark and then furnished with a mysterious verdict after the trial is over. The trial process ai first instance is also subject to appeal. where the judge's charge and the reasonableness of the jury's reasoning may be examined. 1 will examine the latter in more detail below.
A jury's verdict does not spring spontaneously into being like Athena from Zeus' head - but rather is a reply to a detailed charge given by a judge. The judge directs the jurors on each legal issue, and explains to them the legal framework within which they must make their decision. The judge also instructs the jury that they must accept bis or ber statement of legal principle while pointing out that if he or she is wrong on the law the appeal Court will correct the error. Only then does the jury retire to deliberate. In Ireland, a jury's guilty or not guilty verdict, even if expressed as only the words "On the charge of X, we find the defendant guilty", is implicitly an answer to a number of discrete questions which the judge requires jurors to consider before they deliver their verdict.
Therefore, in Ireland, a verdict of guilty of murder is in effect an answer of 'yes' to the following questions, in which the jury will have been directed by the judge's charge:
Did the accused commit the act in question?
Was the accused's act voluntary? (Le. not the product of automatism, etc.) Did that act cause the death of the victim in question?
Did the accused intend to cause death or serious injury?
(for the purpose of assessing whether or not intent was present) Did the accused foresee that death or serious injury was a virtually certain result of his actions?
A verdict of guilty of murder is also an answer of 'no' io any and ali of the following questions, should they be pleaded by the defence:
Did the accused act with a justifiable degree of self-defence? Was the accused insane?
Was the accused suffering from a "mental disorder which was not such as to justify finding him or ber not guilty by reason of insanity, but was such as to diminish substantially his or ber responsibility for the act"?
Was the accused provoked to such an extent that, "having regard to the accused's temperament, character and circumstances, might bave caused him to lose control of himself at the time of the wrongful act"?
When a jury fnds that an accused is guilty they have in fact found, on the basis of the law, as stated by the judge, that the relevant facts are proven beyond reasonable doubt. Proof of facts beyond reasonable doubt involves an assessment of the credibility of witnesses and the finding of guilt implies that the prosecution evidence is accepted by the jury as meeting the requisite standard of proof having regard to ali credibility issues. It is difficult to see what further reason could or should be required if one is not to undermine the whole essence of a trial by jury.
` Section 6 of the Criminal Law (Insanity) Act 2006. 3 People (DPP) v. McEoin [1978]
5.Appeals from jury decisions in Ireland
All criminal convictions are appealable to a Court of Criminal Appeal which is comprised of three iudges. The Court has access to the full transcript of the first instance trial and exammes it thoroughly. The role of the Court in an appeal is:
"io review as far as may be required any rulings on matiers of law, io review as,far as may be necessary the application of the rules of evidence... in the trial, and lo consider whether any inferences of faci drawn by the court of trial can properly be supported by the evidence; bui otherwise io adopi all findings offact".a
The Court has indicated that il will noi upset the findings of faci adopted by a jury unless they are "so clearly against the weight of testimony as to amount to a defeat of justice".
On an appeal against conviction, the Court may do one of the following: affirm the conviction, quash it, quash it while ordering retrial, or quash it and substitute a guilty verdict for another offence.' The Court can quash a conviction if it is satisfied that no reasonable jury could have reached the decision on the basis of the evidence before it. In this respect, the appeal court will have regard to the faci that the jury had the opportunity to see and hear the witnesses at first hand and to assess their credibility. It has never been suggested that the crimmal appeal process is deficient because the appeal court is noi fumished by the jury with a statement of its reasoning.
Statute in Ireland6 provides that an appeal court may dismiss an appeal, notwithstanding that it is of the opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred. When considering that the court will assess whether "in the face of the volume of the evidence which was given at the trial an overwhelming case was proved which the jury could noi, without perversity, have ignored so as to find an acquittal".7
6.The Taxquet case
In a recent decision of the European Court of Human Rights the Court held that a criminal conviction in a Belgian Court violated the European Convention of Human Rights because the verdict given by the jury did noi provide any reasoning in relation to a number of issues which liad arisen in the trial.
The applicant in this case, Mr. Taxquet, was convccted in convection with the morder of government minister André Cools, by the verdict of a jury (which is used in Belgium for more severe crimes). The case was decided by the Second Section of the European Court of Human Rights in January 2009, and is presently pending before the Grand Chamber.
The Second Section stated that reasoning is essential to the very quality of justice and provides a safeguard against arbitrariness. In addition the Court noted that there was a
4 People v. Madden [1977]
s Section 3 of the Criminal Procedure Act 1993.
6 Section 3 of the Criminal Procedure Act 1993, formerly section 5 of the Courts of Justice Act 1928. 7 Attorney General v Hurley and Woolfson [ 1937]
violation of Article 6 because the Jack of reasons left the applicant with "an irnpression of arbitrary justice lacking in transparency" and meant that he "... was unable to understand - and therefore to accept - the court's decision".
The Court noted that in its earlier judgments in Zarouaf v. Belgium (1994) and Papon v France (2001) it had held that even if the jury could only answer 'yes' or 'no' to the questions put by a court the precision of the questions could form a framework upon which the jury's decision was based. This sufficiently offset the fact that no reasons were given for the jury's answers. In other words, detailed questions to the jury could compensate for a lack of reasons. In Taxquet, the problem was not so much the 'yes'fno' answers, but the fact that these were in reply to "vague and general" questions, which questions were not adapted to the applicant's individual situation, but were all put, in identical fashion, in respect of each of the 8 defendants.
It may be that this case is confmed to its special own facts. Insofar as it suggests that the verdict of a jury in Ireland is incompatible with the Convention it is respectfully submitted that this conclusion is erroneus It is wrong not only as a matter of principle but also because it fails to take into account significant features of a jury trial in due course of law under the Irish Constitution.
Rather surprisngly, the Court seemed to suggest in Taxquet that reasons should also be given for an acquittal,$ and, on a similar note, refers to the importance of the verdict being explained to the public, in whose name the prosecution is taken. It can be questioned whether it is desirable that a jury should give reasons for an acquittal. For example, if the reason for an acquittal were revealed as being a relatively technical or minor one, this could have adverse consequences for how the acquitted person is viewed by society. Such a duty to give reasons would run counter to the importance which the Convention places on the presumption of innocence, which is expressly enumerated in Art. 6(2).
There are in any event grave dangers in asking juries how they had reached a particular verdict: for example, they might not all have reached the verdict by the same route. This is in fact one of the features of a jury trial and a feature which many would regard as significant beneft.
7. Conclusion
Trial by jury, with secret and unrevealed deliberations, has been an integral feature of criminal process in Ireland for hundreds of years. That alone is not an argument against change, although il does suggest that the system works and is considered fair. More important perhaps is the fact that it commands the confidence of the public, which is crucial for any process of criminal adjudication.
s For example, at para 48 it states that reasons should: "... highlight the considerations that have persuaded the jury of the accused's guilt or innocence."