The Gazette 1967/71

latures was bound by the restrictions of a written Constitution [see The State (Ryan) v Lennon, 1935 I.R. 1970]. In 1929, a time when jurors were being sub jected to intimidation to such an extent as to endanger the administration of justice, the Irish Free State legislature passed, as a temporary expe dient to -meet an abnormal situation, the Juries (Protection) Act, 1929. The Act was expressed to expire in 1931, but the Juries (Protection) Act, 1931, extended its operation for a further two years. Section 5 provided that in every trial by jury of a crime or offence a majority verdict of nine would be sufficient, and the verdict of such nine members or upwards was to be taken and recorded as the jury's verdict without disclosure of the number or identity of the dissentients. The section, however, went on to stipulate that where a person was found guilty of a capital offence, the judge was to inquire of the foreman of the jury, and the foreman was to notify to the judge pri vately in writing, whether the verdict was or was not unanimous and the number of dissentients (if any), and the judge was to report to the Minister for Justice the information so obtained. The latter provision in the section seem to express the un easiness of the legislature at the prospect of the death penalty being carried out after a majority verdict of guilty. It is noteworthy that in the United States, where some States have departed from the unanimity rule and the requirement of a jury of twelve, in neither Federal nor State laws does such relaxation seem to be allowed in trials of capital offences. The other example of the legislative relaxation of the unanimity rule is that made by the British parliament in section 13 of the Criminal Justice Act, 1967. That section allows a jury in criminal proceedings to bring in a majority verdict of ten where there are not less than eleven jurors and a majority verdict of nine where there are ten jurors. But the section adds two important pro visos to the acceptance of a majority verdict: (1) a court shall not accept a majority verdict of guilty unless the foreman of the jury has stated in open court the number of jurors who agreed to and dissented from the verdict, and (2) a court shall' not accept a majority verdict unless it appears to the court that the jury have had not less than two hours for deliberation or such longer period as the court thinks reasonable having regard to the nature and complexity of the case. The section thus ensures that, whether the 105

in this State, the unanimity rule applies and the jury must consist of twelve jurors. However, it is provided by statute that if in the course of a trial a juror dies or is discharged because of incapacity to act through illness or any other cause, or is discharged for any sufficient cause arising from the death or serious illness of the wife or husband or a near relation of the juror, the jury shall continue to be properly constituted, unless the judge otherwise directs or the number of jurors is thereby reduced to less than ten (Section 64, Juries Act, 1927, and Section 6, Juries Act, 1945). Whether the jury consists of ten, eleven or twelve persons, the present law is that it must be unanimous in its verdict. However, Section 43 of the Criminal Justice Bill, 1967 (which was intro duced in Bail Eireann but did not reach the statute book) proposed to breach the unanimity rule as follows : "The verdict of a jury in criminal proceedings need not be unanimous in a case where there are not less than eleven jurors if ten of them agree on the verdict." If this section had become law, it would have meant that where the jury had been reduced in the course of the trial to ten, the unanimity rule would prevail, but where the jury consisted of eleven or twelve, a majority of ten could bring in a verdict. Thus, for example, if a jury of twelve, immediately on retiring after the judge's charge, proceeded to vote ten-to-two in favour of a verdict of guilty, they could return to court without any delibera tion and announce a verdict of guilty. There would be no necessity for the majority even to listen to the doubts of the minority. And the existence of a minority opinion need not be made known to the judge or to those charged with carrying out the sentence. So, it would have been theoretically possible for a man to be executed for a capital offence although two of the jury that found him guilty might not have been satisfied as to his guilt—in fact might have been convinced on the evidence of his innocence. The desirability of such an important change in the law lies in the field of legislative policy (and therefore lies outside comment here), while its permissability having regard to the relevant provisions of the Constitution remains merely a matter of academic speculation. It is, however, of practical interest to compare the change in the unanimity rule proposed in the Criminal Justice Bill with the change in the rule which was in fact made by the Irish Parliament in 1929 and the British Parliament in 1967, neither of which legis­