The Gazette 1975

Recent Irish Cases

Property qualifications cannot be rigidly confined If a case could be made for having a property qualifi- cation it could not reasonably be confined to one parti- cular type of property. It would be just as rational to suggest that jury service should be confined to the owners of motor-cars over a certain horsepower or motor-cars of more than a certain value. The particular type of property qualification totally ignored the reali- ties of wealth. A man may be a most highly qualified person for jury service, and may indeed be a very wealthy man, and not be the rated occupier of any property. On the other hand, the rated occupier of property may be illiterate and poverty-stricken. He may even be a person of unsound mind. Mr. Justice Walsh said he was, therefore, of the opinion that such discrimination as was created by the distinction between being the rated occupier of property of a certain value and everybody else was one which was inconsistent with and violated Article 40 (1) of the Constitution and was, therefore, a distinction which could not be validly the subject of legislation by the Oireachtas. That being so, it must follow that any legislation to that effect in force at the date of the coming into operation of the Constitution was neces- sarily inconsistent with it and was not carried over by Article 50 of the Constitution. Dealing with the complaint based on the provision in the Act exempting women from liability from jury service, Mr. Justice Walsh said it was true that the Constitution in Article 41 in dealing with the family drew attention to and stressed the importance of woman's life within the home and made special pro- vision for the economic protection of mothers who had home duties. But, of course, women fulfilled many functions in society in addition to or instead of those mentioned in Section 2 of Article 41. There were women engaged in all the professions, in most branches of business, in art and literature and in virtually every human activity. This was scarcely surprising in the light of the fact that women constituted approximately one half of the human race. Only nine women had applied for jury service In this State, approximately half the adult popula- tion consisted of women and, in urban areas, the most likely source of prospective jurors, there were more women than men. According to figures provided by the Department of Justice, for the 10 years immediately preceding the hearing of this action the total number of women whose names were inserted in the jury list was the startlingly low figure of nine. The evidence indicated that a very small number of those women who were eligible for jury service had volunteered for jury service or had succeeded in serving where they did volunteer. Even assuming that the vast majority of women did not wish to serve on juries, that was in itself not a good ground for legislative discrimination in their favour. There could be little doubt that the Oireachtas could validly enact statutory provisions which could, within the provisions of Article 40, have due regard to differ- ence of capacity both physical and moral and of social .294

Women are entitled by the Constitution as of right to :erve as jurors, and it is unconstitutional to impose any minimum rating qualification on jurors. The Supreme Court allowed an appeal by two Dublin women against the dismissal by the High Court of their action in which they had sought declara- tions that certain provisions of the Juries Act, referring to the exemption of women from jury service and re- ferring to the necessity for a property qualification, were inconsistent with the Constitution. The Court allowed with costs the appeals brought by Mairin de Burca of Ballsbridge, and Mary Ander- son of Sandymount. The Court granted a declaration that the Juries Act, 1927, to the extent that it provides (a) that a minimum rating qualification is necessary to make a citizen quali- fied and liable to serve as a juror and (b) that women are to be exempt from jury service but entitled to serve on application, is inconsistent with the Constitution and is of no force or effect. The two appellants had been sent forward to the Circuit Court for trial on charges of wilfully obstruct- ing a member of the Garda Siochana in the execution of his duty, having pleaded not guilty. They had objected to being tried by a jury selected from the jurors on the panel as they expressed the fear that they would not get a fair trial because 1, no women were included in the panel; and 2, the jury would be con- fined to property holders and be selected on the basis of property qualification. The proceedings against them were adjourned (and still stand adjourned) to enable them to take the pro- ceedings now concluded. Women given right to opt in as jurors Mr. Justice Walsh, in the course of his judgment, said that the progression of events was that in 1919 all men and women with the requisite property qualifica- tion were qualified and liable to serve as jurors, subject to such disabilities resulting from conviction for felonies, et cetera. In 1924 women were given the right to opt out of jury service and, by the 1927 Act, in order to serve on a jury, they had to opt in. He was of the view that the Constitution did not preclude the Oireachtas from enacting that prospective jurors should have certain minimum standards of ability or personal competence. He was satisfied that the constitutional provisions did not prevent the Oireachtas from validly enacting that certain categories, by virtue of their physical or moral capacity, could properly be excluded from either the obligation or qualification to serve on a jury. He was also satisfied that the Oireachtas may validly legislate to the effect that some persons, by reason of their particular function or role in society, may be relieved, in the interests of the common good' from the obligations of jury service. ' Dealing with the property qualification in the Juries Act, 1927, Mr. Justice Walsh posed the question: "Can it seriously be suggested that a person who is not the rated occupier of any property or who is not the rated occupier of property of a certain value is less intelligent or less honest or less impartial than one who is so rated?" The answer could only be in the negative.