The Gazette 1967/71

THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY

by Hon. Mr. Justice Henchy (Part I)

One of the most effective safeguards of personal liberty in the Irish Constitution is the guarantee in Article 38 (5) that "no person shall be tried on any criminal charge without a jury" save in the cases excepted by the Article. The excepted cases are (1) minor offences; (2) trials in special courts, which may be set up when the ordinary courts are inadequate to secure the effective administra tion of justice and the preservation of public peace and order; and (3) trials before military tribunals to deal with offences against military law and also to deal with a state of war or armed rebellion. The effect of the Article is that in nor mal conditions a person charged with a major offence against the general law of the State is entitled as of constitutional right to trial by jury. So far, the scope of this constitutional right has come before the courts only in cases where there was a question whether the offence charged was minor or major : Melting v 6 Mathghamhna, (1962) I.R.I.; Conroy v A.-G. (1965), I.R.411; The State (Sheerin) v Kennedy (1966), I.R.I. It emerges from these cases that the Supreme Court has held that (1) in deciding whether an offence is minor or not, consideration should be given to (a) the punishment prescribed for the offence, (b) the moral guilt involved, (c) the state of the law when the Constitution was enacted, and (d) public opinion at the time of that enactment; (2) of these factors, the gravity of the punishment is the prim ary consideration; (3) punishment of six months' imprisonment and a fine of £100 is not so severe as to make the offence other than minor; (4) disqualification from holding a driving licence is not to be treated as punishment for the purposes of the test; (5) detention for three years is a punishment so severe as to prevent the offence from being classified as minor. The court has not considered it necessary to say at what point be tween six months and three years a sentence of imprisonment or detention becomes so serious a punishment that the offence requires trial by jury. By way of comparison, it is interesting to note how the American Supreme Court has dealt with the same problem. Article III of the American Constitution and the Sixth Amendment, as inter preted by the American Supreme Court, require that persons charged with "serious" as opposed to "petty" or "minor" offences be afforded the right

to trial by jury. The objective criteria laid down by the American Supreme Court for determining whether an offence is serious or petty have been substantially taken and applied by the Irish Supreme Court. Like the Irish Court, the Ameri can Court has considered the most relevant of those criteria to be the severity of the maximum authorised penalty : see Frank v United States (T969). Applying those guidelines, the American Court, like the Irish Court, has held that a pos sible term of six months' imprisonment is short enough to permit classification of the offence as petty or minor : Dyke v Taylor Implement Co. (1968). Shortly after the latter decision the Ameri can Court held that a two-year maximum term of imprisonment was sufficiently serious to require trial by jury. Duncan v Louisiana (1968). Since then the American Court had to decide in Baldwin v New York (1970) whether the possibility of a one-year sentence was enough to require trial by jury. It held that it was, but unlike the Irish Court, which held in Sheerin's case that it was not necessary to say where the boundary line lay, it went on to state specifically that no offence can be deemed petty for the purpose of the right to trial by jury where imprisonment for more than six months is authorised. Thus, in the United States the line is drawn more clearly between cases that must be tried by jury and those that may be tried summarily. Once it is established that a case must be tried by jury, the question arises as to what that neces sarily implies. All that Article 38 (5) of the Consti tution says is that such cases shall not be tried "without a jury". But what does the Constitution envisage as being necessarily involved in trial by jury? If one were to attempt a comprehensive answer to that question it would be necessary to look at a number of other constitutional provi sions, for it is a fundamental rule of constitutional interpretation that the Constitution must be con strued as a harmonious entity so as to avoid dis sonance between its separate provisions. For example, it would be necessary to bear in mind that the Constitution provides that no person shall be tried on any criminal charge save in due course of law [Article 38 (1)]; that no citizen shall be deprived of his personal liberty save in accordance with law [Article 40 (4) 1]; and that