The Gazette 1967/71

ered to be the essential feature of the jury as a constitutional requirement. Whether the Sixth Amendment requirement of a jury carried with it the requirement of jury constituted precisely of twelve persons came before the American Supreme Court in Thompson v Utah (1898). The court held that the jury must consist of twelve persons, neither more nor less. A number of subsequent decisions affirmed this opinion, and in Patton v United States (1930) the court went further and ruled that the Sixth Amendment jury is characterised by three essen tial features : "(1) that the jury should consist of twelve men, neither more nor less; (2) that the jury should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them as to the facts; and, (3) that the verdict should be unanimous." This and subsequent decisions gave reason for thinking that the law was clear, that the constitutional right to trial by jury carried with it the right to a twelve-man jury and a unanimous verdict. [to be continued] EUROCOMPANIES COMMISSION SUBMITS DRAFT LAW by ROBERT D. PRINSKY The Six are looking into a Commission pro posal for a European company law that would make it easier for Community firms to benefit fully from the increased scale of the Community market and meet the challenge of huge American multinational enterprises. But, to the consternation of some, the proposal would allow Community- based subsidiaries of US and other non-Com munity countries to take advantage of this form of company incorporation. France, in particular, has been anxious to restrict the privilege to native EEC companies. But the Commission, apparently because it wants to avoid charges of discrimination that would almost certainly have been levelled, chose the open-door course. The 609-page draft statute would establish a European company law, based on the Rome Treaty rather than laws of any member state. It would diffei from existing national laws much as 84 Mr. Prinsky is Brussels correspondent of the AP-Dow Jones Economic Service.

the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen [Article 40 (3) 2]. Thus, the Supreme Court has held that if a person were detained as a consequence of a conviction in a trial by jury in which the judge and counsel were in conspiracy, such detention would be unlawful as being in breach of the guarantee in Article 38 (1) [The State (Wilson) v Governor of Portlaoise Prison; 1 July 1958; unreported]. There is not much assistance, how ever, to be got from the decisions of our courts as to the constitutional postulates of trial by jury in criminal cases, primarily because the law regu lating such trials remains largely unchanged since the enactment of the Constitution in 1937, so that the constitutionality of statutes on that ground has not arisen. Furthermore, complaints of defects in criminal trials by jury are normally decided in the Court of Criminal Appeal on grounds of a non-constitutional nature, for that Court has no jurisdiction to entertain a question as to the vali dity of a law having regard to the provisions of the Constitution. In the American Supreme Court two questions in particular have arisen as to the constitutional right to trial by jury which are not without interest to students of our Constitution. They are, (1) must it be a twelve-man jury? and (2) must the jury be unanimous in its verdict? There is no doubt that the inclusion in the American and Irish Constitutions of the require ments of a jury for the trial of serious criminal offences derives from the common-law tradition that providing an accused with the right to be tried by a jury of his peers, chosen at random, gave a unique protection against oppression by the State. While conviction by a jury was likely to be accepted as a community judgment, a convic tion by a judge or judges might be thought to be based on State authoritarianism, bias, corruption, caprice, or plain legal technicality. So, the American Supreme Court has held that "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common-sense judgment of a group of lay men, and in the community participation and shared responsibility which results from that group's determination of guilt or innocence" (Williams v Florida, 22 June 1970). The questions whether the jury should consist of twelve jurors and whether it should be unanimous must ob viously be answered in the light of what is consid­