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Judgment
Title:
Ó Maicín -v- Ireland & ors
Neutral Citation:
[2014] IESC 12
Supreme Court Record Number:
292/10
High Court Record Number:
2009 751 JR
Date of Delivery:
02/27/2014
Court:
Supreme Court
Composition of Court:
Hardiman J., O'Donnell J., Clarke J., MacMenamin J., O'Neill J.
Judgment by:
MacMenamin J.
Status:
Unapproved
Result:
Dismiss
Details:
Judge O'Donnell concurred with Judge Clarke, Judge MacMenamin and Judge O'Neill.
Judgments by
Link to Judgment
Concurring
Dissenting
Clarke J.
O'Donnell Donal J.
Hardiman J.
MacMenamin J.
O'Donnell Donal J.
O'Neill J
O'Donnell Donal J.
Hardiman J.



THE SUPREME COURT
[Appeal no. 292/2010]

Hardiman J.
O’Donnell J.
Clarke J.
MacMenamin J.
O’Neill J.
      Between/
Peadar Ó Maicín
Applicant
and

Ireland, The Attorney General, The Minister for Justice Equality and Law Reform, His Honour Raymond Groarke and the Director of Public Prosecutions

Respondent

Judgment of Mr. Justice John MacMenamin delivered the 27th day of February, 2014.

1. I am in agreement with the order proposed by Clarke J. but as my approach differs somewhat from his, I would like to indicate my reasoning. In order to do this, it is necessary to set out some of the surrounding detail. I do so, having regard to the full factual summary contained in Hardiman J.’s judgment, with which I am unfortunately unable to agree.

2. The appellant resides in Lower Salthill in Galway City. He was born in Dublin. Since the age of three, he has lived in Rosmuc, Co. Galway, where he attended school. Rosmuc is, of course, in the Fíor-Ghaeltacht. The appellant says that he did not master the English language until late in his teens. He is charged with two criminal offences, allegedly committed in the South Connemara Fíor-Ghaeltacht. He is to be tried in the Circuit Criminal Court in Galway.

3. The appellant is charged, first, with assault and, second, that, in the course of a fight, he unlawfully produced, in a manner likely to intimidate another person, an article capable of inflicting serious injury, to wit, a broken whiskey bottle.

4. The appellant makes an attractive case, persuasively presented by counsel. He is to be tried by jury for these alleged offences. He asserts that, as a native Irish speaker, he is entitled under Article 8 of the Constitution of Ireland to trial by a bilingual jury. When reduced to its essentials, the case may be put thus: the appellant says that to vindicate his language rights, the jury pool should be drawn from a segment of Co. Galway, namely that part of South Connemara where Irish is often the vernacular.

5. Article 8 of the Constitution provides:

      “1. The Irish language as the national language is the first official language.

      2. The English language is recognised as a second official language.

      3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.”


Statistics
6. As the jury panel is to be drawn from the county of Galway, the appellant refers to figures from the Census of 2006 as to national and regional language competence in Irish; and to a report prepared by Dr. Conchúr Ó Giollagáin, a lecturer in socio-linguistics, and other experts, on the question of language usage in the county of Galway. The aforementioned Census reveals that 41.8% of the population of the State aged three years and over can be classified as having the ability to speak the first national language. In the county and city of Galway combined, 49.8% of those enumerated had professed the ability to speak Irish. 281,586 people over the age of three years live in the county. Of these, 12,772 speak Irish daily; 10,890 weekly; and 38,263 less often. These figures are only of limited assistance to this Court. They relate to the population over three years and, thus, not to the category of adults over the age of 18 years, who would be eligible for jury service. They also do not appear to address the question of persons over the age of seventy years who are ineligible for jury service.

7. Furthermore, the degree of self-reporting involved may limit the reliability of the answers. In an affidavit sworn herein, Dr. Ó Giollagáin points out that, in a segment of Co. Galway, the Connemara Gaeltacht stretches approximately from east of An Spidéal to An Chaiseal in west Connemara. In that segment, 67% of the people speak Irish on a daily basis. In some areas, 90% of people do. The general population of this identified district is, as I understand it, 13,444. Dr. Ó Giollagáin states that, in some areas, some 85 - 90% of the people would be able to speak Irish in a manner which would allow them to understand legal matters. Thus, it is said that 12 people, chosen at random, but from this identified area, would be able to understand Irish in a legal case without the need for an interpreter. Putting matters another way, he says it would be possible to so define a jury or a jury district panel so as to bring about a high likelihood of a panel of bilingual speakers such as the appellant is seeking.

8. Dr. Ó Giollagáin’s evidence was not contested by the State and I am prepared to accept it. However, it begs the question – if the Minister for Justice were, indeed, ex hypothesi to designate the district as identified as a jury district, what would be the nature of any objection by a person such as Mr. Ó Maicín were an intepreter to be present to assist, say, one or two jury members less competent in the Irish language (if such were lawful), while the majority proceeded to absorb the evidence and the argument in the Irish language? In other words, the claim in this case is not just for the designation of particular stretch of South Connemara as a jury district, but it reaches further to the exclusion from any such juries of those who are not, or who feel they are not, 100% competent to hear the intricacies of legal argument and testimony in the Irish language.

9. I should pause at this juncture to state that, in so far as the dissenting judgment by Hardiman J. in this case summarises the argument put forward by the State, I believe that summary could be put in another way which might more fully convey what I think was intended by counsel. Hardiman J. summarises that position being as two-fold, namely that it is impossible to assess language competence so as to achieve the desired aim; and secondly, that the designation of jury districts is an act of executive discretion vested in the Minister. As regards the first point, I understood the State to argue that it was impossible for the Court to calibrate such language competence. And for the second point, I fully agree that the designation of jury districts is primarily, and in the first instance, a matter for the executive, albeit subject to judicial review on principle.

The appellant’s submissions
10. Mr. Ó Maicín wishes to prepare, arrange, administer and conduct his defence in the first national language. He points out that as it is his native language, the national language, and the first official language of the State, and that he has a constitutional right to conduct his case without obstacle or disadvantage, just as in the case of any person who wishes to conduct their defence in the English language. His solicitor made these points in a letter to the Director of Public Prosecutions on the 23rd March, 2009.

11. In that same letter, the appellant’s solicitor makes the point that it was the Director of Public Prosecution’s custom to have cases prosecuted in English. The appellant’s solicitor says that, in the interests of fair play, it would be necessary that the prosecutor be able to speak Irish, and that the prosecution be conducted in the Irish language, with each witness choosing whatever language they preferred, whether it be Irish or English. The Director did not respond to this letter. Neither the identity of prosecuting counsel, nor the language to be used by the prosecution is an issue in this case however. What the appellant does seek is a bilingual jury. He relies on an impressive array of foreign authorities especially from the Canadian courts, and reports on the usage of the Welsh language in the courts of Wales. It cannot be denied he makes a strong moral case.

12. The appellant re-iterates that (as is the case) a court may not inquire as to whether he has knowledge of the English language; he says that, as a person who wishes to use the Irish language in court, he has a right under the Constitution and under law to choose the first official language of the State. I pause here to comment that in making these points, the appellant is relying on principles which are already very well established in our case law. There can be no doubt that the appellant is entitled to present, and put, the entirety of his own case in the first national language. He is also entitled to be furnished with Irish language versions of the Book of Evidence in the prosecution, any relevant rules of court, and all other documentary material necessary for him to be made aware of the case against him.

MacCárthaigh v. Ireland
13. The fact that there is well-established jurisprudence on this subject has a considerable relevance to this case. Our courts are governed by the doctrine of precedent. The factual background of each case is important in order to see whether that case is governed by a precedent. Are the facts and legal principles so similar to a past decision that they cannot be distinguished? As will be seen, in this case, geographical location is relevant. It is therefore necessary to point out that, judging from the papers in the case, the appellant is now not living in the Connemara Gaeltacht but, rather, in Lower Salthill in Galway City. He does not say for how long he has been living in Salthill, which is, technically, part of the "Galltacht", a term suggesting "foreignness", which is now, itself, strange in the diverse population of today's Ireland.

14. Against this, the alleged offences did occur in an area well within the Fíor-Ghaeltacht. Many residents, both in the city and county of Galway, have the ability to speak Irish as well as they speak English. All these facts are relevant in order to consider the question whether this case can be distinguished from the precedent set in the judgment of this Court in MacCárthaigh v. Ireland [1999] 1 I.R. 200. It is necessary to look at MacCárthaigh and the legal principles established therein to assess the extent of the task the appellant takes on. Can MacCárthaigh be distinguished? Are the principles pronounced there to be applied in this case? Is that authority directly on point? Are the circumstances so different that this case can legitimately be distinguished? Alternatively, can it be said that the earlier decision is in error?

15. In MacCárthaigh, the appellant, who lived in Dublin, having been charged with criminal offences, wished to conduct his own side of the criminal proceedings in the Irish language. Just as in this appeal, he wished to have a jury which could understand the Irish language. Thus far, the facts of that case are very similar to the instant case. The appellant here apparently no longer lives in the Gaeltacht. Just as Mr. MacCárthaigh did, he lives in an area not so designated, but, of course, he has close connections with Rosmuc.

16. There is another factual distinction, apart from the obvious linguistical contrast between Dublin and the Galway Gaeltacht. In Mr. Ó Maicín’s case, the fourth named respondent has ordered that the judge who will preside over the appellant’s forthcoming trial should himself or herself be sufficiently competent in the first national language so as to be able to work without the assistance of an interpreter. This order goes further than any right established in MacCárthaigh, where no such order was made. The order made as to the judge’s language competence is by no means unimportant. In fact, as will be explained, that order could itself be said to be at variance from the principle identified in another case in the same area of law, Ó Monachain v An Taoiseach [1986] I.L.R.M. 660, discussed later.

The role of the trial judge
17. The judge, of course, has a central role in any trial before a jury; must be responsible for the proper administration of the trial; and rule on all controversial matters which arise during the trial itself. If the judge in the case is bilingual, or at least competent enough in Irish to work without the assistance of an interpreter, this must significantly diminish any concern the appellant has regarding the quality of translation or interpretation. The fact that the judge will be able to understand the evidence in both official languages may help to ensure any difficulties in translation are addressed immediately, so that the jury are not under any misapprehension as to nuance or meaning in evidence. In this aspect, therefore, the extent to which the appellant’s language rights have been vindicated and protected in fact go further than in MacCárthaigh. In addition, the order may be said to bolster the appellant’s right to a fair trial under Article 38 of the Constitution.

18. What then are the distinctions between this case and MacCárthaigh? As already outlined, Mr. Ó Maicín grew up in the Fíor-Ghaeltacht; the alleged offences took place in the Fíor-Ghaeltacht; the alleged injured party also apparently resides in the Fíor-Ghaeltacht. All of these are facts which differentiate this case from MacCárthaigh. The question then is whether these differences are sufficient to make the case distinguishable in law from MacCárthaigh? I do not understand the appellant’s case to be that MacCárthaigh was wrongly decided.

19. I should mention at this point one clear difference between the two cases: MacCárthaigh preceded the seminal judgment of the Supreme Court of Canada in R. v Beaulac [1999] 1 S.C.R. 768. There, that Court followed an innovative and purposive interpretation of language rights involving positive participation to such a degree as would require, say, a French-speaking jury for a person invoking his French language rights. This was so notwithstanding that in the province concerned, British Columbia, French speakers are in a minority, as they are in some other provinces also covered by this federal ruling on the Canadian Charter. Nonetheless, persuasive though it may be, Canadian jurisprudence is not binding in this jurisdiction, and it would be misleading to suggest that Irish superior court precedent hangs in the balance whenever a court of another country takes a different approach involving a radical and purposive approach to provisions both in statute law, and the Charter of Fundamental Rights.

Stare Decisis
20. In Attorney General (Society for the Protection of Unborn Children) v. Open Door Counselling Limited [1988] I.R. 593, Keane J. pointed out that the protection of constitutional rights may, on occasion, justify a departure from the strict application of the rule of stare decisis governing the conclusiveness of Supreme Court decisions. But this arises only in truly exceptional cases. It goes without saying that the issue in question is matter of great importance for the appellant himself. The issues he raises are serious ones. However, it cannot be said that the nature of the issue at stake here is precisely comparable to the range of rare cases where this Court has traditionally departed from the application of the doctrine of stare decisis.

21. By way of illustration, in McGimpsey v Ireland [1990] 1 I.R. 110, this Court overruled earlier dicta of the Court in Re Article 26 and the Criminal Justice (Jurisdiction) Bill 1975 [1977] I.R. 129, which had suggested that the then provisions of Articles 2 and 3 of the Constitution did not constitute a claim of right to the territory of Northern Ireland. This was indeed an issue of grave jurisprudential import.

22. In the past, arguments have been advanced that this Court should depart from the application of the doctrine when an earlier decision is said to be wrong; but, here, I do not think the appellant makes that case about MacCárthaigh. But what also underlies this appeal is the weight of authority which the appellant seeks to supplant. The established jurisprudence at issue here concerns not just the extent and limitation of language rights based jurisprudence; but also the nature and composition of juries and the constitutional status of jury trial itself.

23. It is necessary, of course, to place great emphasis on the language right, which arises here. But there are also other constitutional guarantees and duties which fall to the State and which are the prerogatives and entitlement of all citizens. The appellant's case can be put very simply in a way that demonstrates its force. He says Irish is the first official language of the State. It is his native language. Its position is enshrined in the Constitution. Why in those circumstances, having allegedly committed two offences in the Fíor-Ghaeltacht, can he not be entitled to a bilingual jury?

24. I pause here to observe that I did not understand either side to make any case in this appeal regarding the applicability or otherwise of Article 8.3 of the Constitution. That said, I do not think it is entirely inappropriate to refer to that provision as the task of constitutional interpretation imports, inter alia, harmonious interpretation, and this means harmony between provisions as well as within provisions. Obviously, it would not be appropriate to base a decision on a point not argued. But whatever might be mooted in relation to Article 8.3, it is not directly relevant to the core constitutional issue in this case, namely whether the Supreme Court must compel the executive and legislature to create a jury district, such that Irish-speaking accused persons, who opt for Irish as the trial language, would be granted an all-Irish-speaking jury as of right. I think the duty of the State goes further than merely to seek to encourage the status of the first national language. Subject to harmonious interpretation with any other relevant provisions of the Constitution, it is to encourage in every practicable way; not to place any obstacle, in the way of a person wishing to conduct his interactions with the State through Irish.

Language rights in the administration of justice
25. What is the nature and extent of the language right at issue here? The editors of Kelly: The Irish Constitution (4th Ed.) summarised the extant jurisprudence thus:

      "The basic principle here is that a litigant is entitled to use his native language when presenting his side of the case to the Court, but considerations of natural justice apart, he cannot impose his choice of language on the other parties to the litigation".
As will be seen from MacCárthaigh, the category of “other parties” has been held to involve the judge, and the jury. It is important to place this judgment in its true jurisprudential context however. It is not the sole authority bearing on this issue.

26. In Ó Monachain v. An Taoiseach, issues akin, but not identical, to the present case arose. There, this Court upheld the right of a party to proceedings to give his evidence in Irish, even were it to be the case, he was testifying in a part of the country where English was the vernacular. Henchy J. held that the appellant was not entitled to require that the entire proceedings be conducted in Irish, even in the Donegal Gaeltacht, an area where the first national language was generally spoken. One point which arose is very important; the appellant also made the case that, as an accused person in a prosecution, he was entitled to a District Justice who was sufficiently competent in the Irish language to understand the testimony without the need for an interpreter. As well as determining law, a District Judge in such a case is a decider of fact; just as is a jury in a trial in the Circuit Court. The appellant relied on s. 71 of the Courts of Justice Act 1924, which provided that, so far as “practicable”, the District Judge assigned to an area where the Irish language was in general use should be able to dispense with the use of an interpreter when evidence was given in Irish. While affirming the right of the accused to testify in the first national language, Henchy J. held it was “not possible to find authority in s. 71, or any other provision to compel a judge to hear a case without the assistance of an interpreter.” I do not read the phrase “any other provision” as being confined to statute law. As will be seen, this is an interpretation of the practical extent of Article 8 of the Constitution and it extends to the judge as decider of fact as well as decider of law.

27. In An Stát (MacFhearraigh) v MacGamhnia (Unreported, High Court, O'Hanlon J., 1st June, 1983), O’Hanlon J. reaffirmed the right of a litigant to use Irish in conducting his own case and in cross-examination. Moreover, that High Court judge held that in the light of the constitutional status of the language, a court or a tribunal had no business enquiring whether the appellant could speak English and that, even at a cost, the State was obliged to ensure that a litigant was not placed at any disadvantage by use of the national language.

28. I would, therefore, wish to express my agreement with, and acceptance of, the reasoning in those authorities, decided by courts established under the Constitution. I agree, too, with subsequent, more recent judgments of this Court, in particular by my colleague, Hardiman J., where the rights of persons to have legal proceedings and rules of court available to them in Irish have been vindicated. These measures ensure that such persons can, if necessary, conduct their case in Irish as part of the practical vindication of the language right (and the State’s duty) contained in the Constitution. But the harmonious interpretation of the Constitution requires that rights and duties be reconciled and balanced in light of the factual context, both intrinsic and extrinsic to the case at hand.

29. But none of the cases, thus considered, establish that a jury must be bilingual (although it might be said the principles arose conceptually in Ó Monachain). The jury question arose squarely in MacCárthaigh. Therefore, the judgments of the High Court and Supreme Court in the latter case require careful analysis here.

30. In the High Court, O’Hanlon J. carefully examined both Irish and United States jurisprudence on the question of how a jury is to be composed so as to accord with constitutional principles, specifically in accordance with Article 38.5 of the Constitution.

31. This Article provides that “no person should be tried on any criminal charge without a jury” on a non-minor offence save in the case of the exceptions identified in Articles 38.3 and 38.4. None of the exceptions apply here. The High Court judge (himself both an eminent constitutional lawyer and elegant user of the Irish language) quoted the statement of the Supreme Court of the United States in Thiel v Southern Pacific Company (1946) 328 US 217 at p. 227 to the following effect:

      “Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case … The broad representative character of the jury should be maintained, partly as an assurance of diffused impartiality and partly because sharing in the administration of justice is a phrase of civic responsibility”.
32. I pause now to identify the characteristics identified by the Supreme Court of the United States, which O’Hanlon J. adopted and which Hamilton C.J. approved on appeal to this Court. Not only is a jury to be drawn from a pool of persons “broadly representative” of the community; it is also to be “impartial in a specific case”; what is necessary is “diffused impartiality”.

33. O’Hanlon J. quoted a passage from Taylor v Louisiana [1975] 419 US 522, also relevant here. In Taylor, the Supreme Court of the United States pointed out that the “fair-cross-section requirement”, fundamental to a jury trial, is not complied with, if the jury pool is made up only of “special segments of the populace or if large, distinctive groups are excluded from the pool”. The Supreme Court of the United States stated:

      “Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” (emphasis added)
In addition to the concept of diffused impartiality therefore, the jury pool cannot only be composed of “special segments of the populace”. Putting this test in positive language, the guarantee of jury trial is defeated if “large distinctive groups are excluded” from the jury pool.

34. Applying these indicia to the facts in MacCárthaigh, O’Hanlon J. concluded that it was a requisite of every jury that it could be said that the pool from which it was drawn, represented “every category of the public in the area to which the action is to be heard” (emphasis added). There cannot be the outright exclusion of entire categories of the community from participating in juries without good cause.

35. On appeal, Hamilton C.J., speaking for this Court, specifically approved each of the various citations contained in O’Hanlon J.’s judgment. The then Chief Justice accepted the point that difficulties can arise regarding interpretation of evidence such as loss of nuance, and risks and difficulties in translation. There is one passage in Hamilton C.J.’s judgment which is of some significance, which can only be understood by reference to the context. Hamilton C.J. stated as a matter of principle at pp. 212-213:

      “If every member of the jury had to be able to understand legal matters in the Irish language without the assistance of an interpreter most of the people of Ireland would be excluded. That would amount to a violation of Article 38.5 of the Constitution, as the Supreme Court explained it in the case of de Búrca v. The Attorney General [1976] I.R. 38 and The State (Byrne) v. Frawley [1978] I.R. 326.” (emphasis added).
The ratio of MacCárthaigh then can only be analysed by reference to de Búrca and State (Byrne) v Frawley [1978] I.R. 326, as will presently be explained.

36. The case-law establishes, then, that a jury pool must be impartial in an individual case and not exclude large distinct groups or identified segments in the community. It cannot be composed only of special groups. It must include every category of the public in the area in which the action (or trial) is to be heard. A fortiori, it cannot be such that “most of the people of Ireland will be excluded”. But can it be such that minority category in an area are entirely excluded?

37. In the case of de Búrca v Attorney General [1976] I.R. 38, a challenge was brought to both a qualification for jury service based on the payment of rates, and a provision effectively excluding women. It was successfully pleaded that both conditions trenched on the impartiality and representation of the community. On these exclusions, Henchy J. pronounced at p. 74:

      “There is no doubt that the primary aim of s. 5 of Article 38 in mandating trial by jury for criminal offences other than minor ones … is to ensure that every person charged with such an offence will be assured of a trial in due course of law by a group of laymen who, chosen at random from a reasonably diverse panel of jurors drawn from the community, will produce a verdict of not guilty, free from the risks inherent in a trial conducted by a judge or judges only, which will therefore carry with it the assurance of both correctness and public acceptability that might be expected from the group verdict of such a representative cross section of the community. Obviously in order to carry out his constitutional function the jury must have certain indispensable attributes in both its composition and its operation.”
38. The judge then said at p. 76:
      “What is called for – and this goes to the essence of this aspect of the aspect of the case – is the judicial determination as to whether jury panels drawn exclusively from persons rated in respect of property of the prescribed rateable valuation can be said to be representative of the citizenry of the relevant jury district.”
39. He posed this question:
      “When a system of jury recruitment is assailed for being exclusionary to the point of unconstitutionality, the test is whether, by intent or operation, there is an exclusion of any class or group of citizens (other than those excluded for reasons based on capacity or social function) who, if included, might be expected to carry out their duties as jurors according to beliefs, standards, or attitudes not represented by those included. If such a class or group is excluded, it cannot be said that a resulting jury will be representative of the community. The exclusion will leave untapped a reservoir of potential jurors without whom the jurors lists will lack constitutional completeness” (emphasis added)
40. He went on to say:
      “The minimum rating qualification, in my opinion, produces that result. The line it draws between the eligible and ineligible produces what some people would call a socio-economic classification. A rating qualification shuts the door on all citizens who are not liable to pay rates. This embargo is constitutionally objectionable not simply because it renders ineligible a substantial section of the citizenry but because it ensures that a jury will not include non-ratepayers. A jury so circumscribed in composition is no less wanting in the representativeness demanded by the guarantee in s. 5 of Article 38 than would be a jury drawn from a panel confined to taxpayers. It excludes a range of mental attitudes, because they will be absent from jury box, will leave an accused with no hope of the contribution they might make in the determination of guilt or innocence … A jury which is so selective and exclusionary is not stamped with the genuine community respresentativeness necessary to classify it as the jury guaranteed by s. 5 of Article 38. It is therefore unconstitutional.”
41. Turning then to the exemption of women from jury service provided for under s. 3 of the Juries Act 1927, Henchy J. stated:
      “In regard to the exemption of women, s. 3 of the Act of 1927, in laying down the qualifications for jury service, excludes those who are disqualified or exempt. Section 5 of the Act … places women in the category of those who are exempt but are entitled to serve if they make application. It is the exemption of all women, save those who opt for jury service, that the plaintiff say is constitutionally objectionable.”
42. Henchy J. explained later at p. 77:
      “The absence of women from juries means an unconstitutional system of selection for two reasons. First it fails the test of representativeness because it means that some 50% of the adult population will never be included in the jury lists. Granted that many of the women who make up that 50% would be entitled to exemption on personal grounds such as pregnancy; nevertheless, the fact remains that a whole swathe of the citizenry (including some 200,000 single women) will be outside the range of choice open to an accused person facing a trial by jury. Secondly, and of even greater importance, that narrowed choice means that a woman's experience, understanding and general attitude will form no part in the jury processes leading to a verdict. Whatever may have been the position at common law or under statute up to recent times, it is incompatible with the necessary diffusion of rights and duties in a modern democratic society that important public decisions such as voting, or jury verdicts involving life or liberty, should be made by male citizens only. What is missing in decisions so made is not easy to define; but reason and experience show that such decisions are not calculated to lead to a sense of general acceptability, or to carry an acceptable degree of representativeness, or to have the necessary stamp of responsibility and involvement on the part of the community as a whole. Juries recruited in that way fall short of minimum constitutional standards no less than would juries recruited entirely from female citizens.”
43. To like effect, in Byrne, Henchy J. rejected the very concept of an “artificially shrunken and selective” jury list as being flawed, in the same way as a “sweepstake in which 80% of the tickets bought had been excluded from the pool from which the winning tickets were drawn”. The decision had to have the quality of a “community decision”; and a nexus with that community for constitutional legitimacy.

44. A jury then must be selected from a pool genuinely representative in character and reflecting the diffuse nature of the community. Among the necessary characteristics are that it be, and perceived to be, constituted with the necessary assurance of diffused impartiality; randomly and indiscriminately drawn from a pool broadly representative of the community, inclusive of large distinctive groups within that community. What is necessary is the “stamp of responsibility” or involvement as part of the community as a whole. The pool must be representative of every category of the public in the area in which the trial is to be conducted; were it not so, it would not be constitutionally compliant. There is, too, a natural justice dimension to the requirements.

45. Would the absence of bilingual jury amount to a violation of Article 38.5 of the Constitution? It cannot be denied that there is, at one level, a reconciliation to be struck here between two constitutional rights. At its simplest, the test is whether the language right under Article 8 of the Constitution, or as an aspect of natural justice, is one which can be generally asserted without limitation against the constitutional duty to provide a jury trial under Article 38.5 and the right of the appellant to have a trial “in due course of law”.

46. I am drawn to conclude that the Article 38.5 constitutional duty, which is engaged here, is mandatory. This duty arises in the context of the vindication of the fundamental right to liberty of the citizen protected under Article 40 of the Constitution. The duty also arises in the vindication of the rule of law and the fundamental value entrenched in Article 38 that no person shall be deprived of liberty save after a trial in due course of law. But the proper administration of criminal justice is also a duty owed to the public at large. It is not just the prerogative of an accused person.

The Official Languages Act 2003
47. In this context, the provisions of the Official Languages Act 2003 are relevant. The object of this Act is to promote the use of the Irish language in the administration of justice. Section 2 of that Act defines “proceedings” as meaning “civil or criminal proceedings before any court”. Section 8(1) of that Act provides:

      “A person may use either of the official languages in or in any pleading or document issuing from, any court”.
Section 8(2) provides:
      “Every court has, in any proceedings before it, the duty to ensure that any person appearing in or giving evidence before it may be heard in the official language of his or her choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language” (emphasis added).
Section 8(3) provides:
      “For the purposes of ensuring that no person is placed at a disadvantage as aforesaid, the court may call such facilities to be made available as it considers appropriate for the simultaneous or consecutive interpretation of proceedings from one official language into the other.”
These provisions address the duty of every court conducting any proceedings including criminal proceedings.

48. Section 8(4) provides for a situation where the State or a public body is a party to civil proceedings before a court. There, but only there, it is provided:

      “(a) the State or the public body shall use in the proceedings, the official language chosen by the other party, and

      (b) if two or more persons (other than the State or a public body) are party to the proceedings and they fail to choose or agree on the official language to be used in the proceedings, the State or, as appropriate, the public body shall use in the proceedings such official languages appears to it to be reasonable, having regard to the circumstances.”

49. I would merely observe, that the differentiation between civil and criminal cases to be found in the Act, can derive only from the interpretation which has been given in the case law as to the practical extent to which rights contained in Article 8 of the Constitution are to be vindicated. The State’s policy, enshrined in the legislation, appears to be that Article 38.5 of the Constitution places parameters on what may be practicable in criminal proceedings derived from the mandatory constitutional nature of the rights and duties arising in the case of judges, juries and the prosecution.

50. These provisions can only be seen as reflective of ways in which the well settled constitutional rights and duties are to be vindicated. The appellant will have the right to testify in Irish. He has a right to all relevant documents to be provided for him in the first official language including the Book of Evidence and any law or rule of court. His counsel has the right to conduct his case in the first national language. Any evidence given in the second national language must be translated into the first language for the appellant’s benefit. Insofar as the prosecution is to be conducted in the English language, the appellant has the right to have every bit of that translated into the first national language. His counsel may address the jury in the first national language. He may also address the judge (who will be proficient in the first national language, in that language).

51. The framework of s. 8(3) of the Official Languages Act is no coincidence. While it is not correct to use a statutory provision as the basis for supporting a constitutional proposition, I merely remark in passing that the Act was clearly based on the same view as I happen to express here – namely, that a sufficiently good translation service met the requirements of Article 8 in so far as juries are concerned. Our Constitution involves the practical integration of ideals and political realities. The State’s commitment to the first national language in that Constitution, as seen by statute and in the case law, demonstrates that we have in fact travelled a long way from the views of O’Brien L.C.J., as expressed in the judgment in McBride v McGovern [1906] 2 I.R. 181. It need hardly be added that this appeal was itself conducted in the first national language.

52. This leads me to make another observation, which is that multilingualism, rather than monolingualism, is increasingly a feature of our modern world, our continent, and our state. While at a European level, it is undoubtedly regrettable that minority languages come under threat from dominant languages such as English, nevertheless it is also true that many European citizens are fluent in two or three languages, and, accordingly, governmental or private business is often conducted simultaneously in more than one language. Crucially, many participants at such meetings may listen to a speaker for the purposes of tuning into his intonation while also listening intermittently or at low-volume to an interpreter to ensure that difficult passages are correctly understood. A fluid interplay between languages characterizes such events. Modern interpreters are sophisticated in the timing of their interspersions, their vocal inflexions and so on. An analogy in Ireland is where interpreters are available for parliamentary proceedings, which are, by their very nature of fundamental constitutional significance.

53. In turn, insofar as a person such as Mr. Ó Maicín has a right to see interpretive services being arranged for a jury – and he does – this might, in fact, best materialize, not simply into an English interpretation which all jurors would exclusively rely, but rather the availability of an English interpretation which some jurors may wish to avail of – some out of necessity and others more out of an abundance of caution.

Conclusions
54. I think that the appellant faces the insurmountable obstacle that the well settled fundamental principles identified in MacCárthaigh, de Búrca, and Ó Monachain so very clearly apply. There is established jurisprudence here. No case has been made that all of these were wrongly decided. I am not persuaded that the facts of this case require an entirely different result. The principles established in previous cases establish that it is not constitutionally permissible for any person, in any part of the country, to seek to have a jury panel devised or “tailored” for them. The principles that have been identified arise in the case of all jury trials, in all parts of the State. The jurisprudence specifically prohibits the concept of different constitutional rights arising in specific locations, or because of language usage, even in the case of the national language. The duty which devolves on the State is to ensure that the jury panel be perceived as impartial and to be representative of the people of the State, as Article 3 of the Constitution puts it, “in all the diversity of their identities and traditions”. Mr. Ó Maicín’s case cannot be distinguished, because the principles identified in the case law apply to all jury trials, irrespective of their location, or the identity of the defendant.

55. Article 8 confers the right to use either of the official languages in various contexts. In the court context, this entails the correlative right to be understood by the judge and jury (if any), in order to ensure justice in court. The Article 8 right is essentially a language right and entails choice, without regard to whether the claimant is monolingual or bilingual. This is different from the case where someone speaks neither of the official languages sufficiently well or at all, and requires to give evidence in a third language, in which case a translation will be arranged purely in the interests of justice.

56. The Article 8 right is available to every Irish citizen. It is, and should, therefore, be irrelevant that the offence was alleged to have been committed in a Gaeltacht or that the accused and the victim were Irish speakers. Indeed, if the right contended for in this case were to be granted, it would be limited not just to Gaeltacht areas, but arguably to only a few Gaeltacht areas in the country which were large enough to warrant special jury districts being created for them (and not so small that juries would be utterly local and parochial). In other words, the right argued for would privilege Connaught and Munster “Gaeltacht Gaeilgeoirí” over, say, Leinster Gaeilgeoirí, and could privilege large-Gaeltacht Gaeilgeoirí over small-Gaeltacht Gaeilgeoirí.

57. Even if Article 8 were prima facie to imply the right contended for, it would have to stop short once confronted by other rights and duties. While Article 8 is fundamentally about language rights, it is being invoked here in the context of the administration of justice and which, therefore, must be interpreted in that context. There is a duty on the State, on behalf of the people, to prosecute crimes before representative juries. This, in turn, correlates with the right of the people to have crimes so prosecuted. The people of Ireland are entitled to sit on such juries and, whereas jury districts can be created so as to create localized microcosms of the population of Ireland, I do not accept that such local sub-populations must be further subdivided along linguistic lines for jury purposes. Leaving aside the possibilities of Article 8(3) – which as already stated does not directly arise in this case, and was not invoked in argument either – I cannot accept that this Court should, or could, mandate the executive and legislature to tailor a particular Co. Galway jury district in a particular way. Such a course would involve, in all analogous cases, many detailed calculations which are not the typical preserve of the courts.

58. I do not deny that the issues raised by the appellant are of great importance. It must be a cause for regret that the defence of this appeal necessarily relied on the fact that the national language is not the vernacular language of all the people. But the diverse nature of our population is also an undeniable fact; and the Constitution mandates that the composition of jury panels be such as to be representative of the entirety of the community in all its diversity. For these reasons, I would dismiss the appeal.












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