Monday May 19 2008 Ireland.
WHEN she began her landmark legal challenge against a decision to exclude her from jury service, Joan Clarke said she was suing the State because she wanted to perform "this important civic duty".
The married mother of two and former factory worker from Athenry was turned down for jury duty, a task dreaded by many and dodged by untold numbers, because she is deaf.
Deaf since birth, Mrs Clarke, who lip-reads and is training to become a sign language teacher, has claimed that the refusal to allow her to serve as a juror breaches her rights under the Constitution and the European Convention of Human Rights.
And now the State, which should be at the cutting edge of policies and practices that promote equality and inclusiveness, finds itself defending a blanket ban on deaf jurors that appears to defy due regard for people with disabilities.
Would the sky fall in and the sanctity of jury deliberations be inconceivably violated if a sign language interpreter was present to assist Joan Clarke decide the guilt or innocence of one of her (possibly deaf) peers?
Is a deaf person unable to ascertain the demeanour and credibility of an accused, witness or lawyer, jeopardising a criminal trial in the process, just because she cannot hear the proceedings?
Most common law jurisdictions say no, hence the reason why deaf civilians can serve on juries in every state in America and also in Canada and New Zealand.
Only Ireland and the United Kingdom persist with the deaf jurors ban.
Deaf people are not the only people who are banned from serving on juries in Ireland.
Those who have reading difficulties are also automatically excluded, as is anyone who has suffered from mental illness or anyone who regularly attends for treatment by a medical practitioner.
Last week Dermot Ahern, in one of his first forays as justice minister, announced, to much fanfare, that the Government was removing the upper age limit which prevents people over the age of 65 serving on juries. Seventy is the new 65.
Overlooking the fact that the burden of jury duty is disproportionately borne by the young, unemployed, those who are financially independent and the elderly, the minister said that the abolition of the upper age limit recognised the contribution which older people are making to society.
He is, of course, correct in that view. But the largely symbolic and cosmetic change -- the over-65s will still be able to excuse themselves on ageist grounds -- defers for another day the real debate about the need for radical reform of our jury selection regime.
It is worth remembering that juries are meant to be a representative sample of the community, a cross-section of society as a whole.
Yet as this newspaper has pointed out, ad nauseam, they are anything but.
The Supreme Court has held that a jury must be selected from a pool broadly representative of the community so that its verdict will be "stamped with fairness and acceptability of a genuinely diffused community decision".
But a number of factors rail against the cardinal principle of randomly selected, genuinely diffused community decisions, not least the fact that the vast majority of criminal cases take place in one location: the Greater Dublin area.
Add to this distorted national perspective the fact that only those who are on the Dail electoral register can be called for jury service.
The current regime not only excludes all non-voters, and the vast majority of the one-in-10 foreigners who now live here, but the goal of representativeness is also weakened by the disqualification, ineligibility, exemption and excusal criteria set out in the 1976 Juries Act.
The 32-year-old act, which previously barred women from serving on juries, excuses a wide category of people, including ex-prisoners, from jury duty.
Priests, nurses, midwives, vets, teachers, pilots, Dail clerks and dentists can also dodge the draft. Civil servants, gardai and the defence forces are also excused, owing to a public interest justification.
What about the rest of us who are entitled to serve?
Amble into the Four Courts on any day that a jury is being empanelled and you will witness the reluctance of many -- over a third at the last count -- who are unwilling to serve.
The self-employed and high-fliers can't afford up to a three- or four-week sojourn; neither can those who are carers, have children or are otherwise engaged, ie, going off on holiday.
Extraordinary amounts of people parade before judges like schoolchildren claiming that the dog ate their homework. They sheepishly line up with excuses as to why they can't, or more than likely won't, serve on a jury.
Then there are others, like Joan Clarke, who take unusual steps to ensure that they can perform this most important civic duty.
Trial by jury is the most fundamental right afforded to a person accused of a crime. The least we can do is ensure that that right is not undermined.
4 comments:
Interesting article.
Where I live in the States, U.S. citizens of legal age who don't have medical excuses, aren't 24/7 caretakers of dependents, aren't peace officers (police officers, prison guards, etc) or aren't in the military are REQUIRED to report for jury duty when notified. Even those who have physical disabilities but otherwise healthy are required to report. Blind and deaf people have to report. People with disabilities have to inform the court ahead of reporting for duty if they have any accommodation requirements, such as an interpreter or wheelchair access to the trial room, etc. Even justices, lawyers, and movie stars (just thot I'd throw that in there!) are not exempt from jury duty.
Justices are required in turn to inform prospective jurors what the approximate length of the trial will be. One would have to have a damn good excuse to be released then, and it's the trial judge, not the jury pool administrators, who will determine that. In many cases most trials don't last longer than 7 days, jury selection itself takes anywhere from 1 to 3 days. On an aside, there were prospective jurors who were willing to spend months on the jury for the O.J. Simpson trial, imagine that!
I served recently in a criminal case for the first time, and it is an interesting process. Deaf people can indeed serve on the jury here where I live. Jurors do get compensation for time and mileage spent during a trial, but it's a pittance compared to most people's wages. Better paid something than nothing anyway. Employers with 50-plus employees are required to pay their employees while they serve jury duty.
The British and the Irish judicial systems need more people like Joan Clarke who wish to fulfill a civic duty even though she is deaf. Seems like the jury duty system need a major overhaul, 32 years is too long!
Ann_C
We used to have debates on deaf people in juries a long time ago,there was a consensus deaf people didn't want to know, access or not. They also said they want 100% deaf juries trying deaf people too, but that was challenged, as not possible because the deaf world is so small in the UK you would never find enough deaf to form a jury who didn't know each other, and regional sign language variations would make a long case unworkable. We had all sorts of issues raised, from "Deaf won't get a fair deal (!), from hearing jurors", to hearing people saying "Deaf don't understand our world enough to make a judgment, and they can easily be challenged if they missed one sentence, by a crafty lawyer." Of course the 12 good men and true is strictly observed, so a translator in the house made it one too many as well.
Egad, you're not kidding? A translator (meaning a terp) in the house is one too many? The terp only translates, doesn't have any other duty than that.
Ann_C
They would feel the translator-client relationship suss. Who is giving the view ? Fact is very very few Translators have any sort of training in a courtroom, and it's done in relays too, so more than 1 translator to deal with via making a judgement as well. Deaf are happy to a degree (Not all are), about whether the transltor would have set up enough empathy with the deaf person so stress isn't a factor. I don't know how it goes in America with deaf people, but most deaf here accept it is vital rapport is established between client and transltor, constant changes tend to upset the communication, sa clients struggle to re-establish the status quo. Translating isn't just telling deaf what hearing are saying...
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