Article 38.5 - Right to Jury Trial Flashcards
Right to a Jury Trial
Article 38.5 provides that (subject to three exceptions) no person shall be tried on any criminal charge without a jury.
The three exceptions to the requirement to have a jury trial are set out in Articles 38.2
to 38.4 and are:
- Minor offences tried summarily;
- Matters tried in the Special Criminal Court; and
- Offences against military law tried before Military tribunals.
what was held in the case of DPP v Conroy
that the holding of a voir dire to determine that admissibility of evidence in the absence of the jury does not breach the right to a jury trial.
what was held in the case of DPP v Davis
It was held that a trial judge can never direct a jury to return a verdict of guilty. The same does not apply in relation to a not-guilty verdict. The trial judge is entitled to direct an acquittal where there is insufficient evidence
define Jury
The term “jury” is not defined in the constitution, but in practice involves 12 people from the community.
The jury should be a representative of society.
In De Burca v AG supreme Court held that it must be a ‘reasonably diverse’ panel
is there is a right to have a Jury capable of hearing a case in Irish without the need for translation.
The supreme court have stated that the answer is no
In MacCarthaigh v Ireland a theft trial was being held
in Dublin where the defendant was working through Irish. He argued that he was entitled to a jury who did not need a translator. The Supreme Court held that there was no such requirement. It said that to hold otherwise would breach the representative nature of the jury and result in an
‘artificially shrunken jury’.
Minor offences and the right to a jury trial
where an offence is ‘minor’ it may be prosecuted summarily in the District Court without a jury.
what constitutes a minor offence
Melling v O’Mathghnamhna is the key case on the definition of a minor offence. The criteria outlined in that case for a ‘minor’ offence are:
- The severity of the penalty;
a. Is the maximum penalty the determinant, or the actual penalty?
b. Is the penalty /punishment “primary” or ‘secondary’ in nature - The moral quality of the act;
- The state of the law and public opinion in 1937.
what are the facts of The State (McEvitt) v Delap - Minor offences
The applicant was charged with what he accepted was a minor offence but wanted a jury trial nonetheless. The Supreme Court held that he had no right to a jury unless he could prove that the offence in question was non-minor.
Military Courts
Article 38.4 provides:
1. Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion.
- A member of the Defence Forces not on active service shall not be tried by any court-martial or other military tribunal for an offence cognisable by the civil courts unless such offence is within the jurisdiction of any court-martial or other military tribunal under any law for the enforcement military discipline.
what did the case Re Haughey say about the right to a jury trial ?
This is a mandatory right, not to be waived or removed
what did the case Re Haughey say about bias in a jury trial ?
It was held that Judge must warn jurors to disclose all interest or connections to the case of if they are ineligible to act. This is all encompassing and judge not entitled to enquire further.
must there always be a unanimous verdict
Does not always need one.
S.25 CJ Act 1984
Verdict can be 10:1. This only occurs where
- It appears to the Ct that the jury had a reasonable time for deliberation, having regard to the nature of the
complexity of the case and no less than 2 hours.
- Where the verdict is not guilty, ct wont indicate whether it was unanimous or not.
what is the role of the jury?
- Jury required for any criminal charge
- jury only considers matters of fact
- Judge cannot direct a verdict of guilty
