Guest piece by Michael Farrell: Ireland gets first ever deaf juror – 11 years after first attempt

Michael Farrell is a human rights law consultant, the Irish member of the European Commission on Racism and Intolerance, a member of the Council of State and former FLAC Senior Solicitor.

When Judge Sinéad Ni Chúlacháin began a trial in the Dublin Circuit Criminal Court on 14 December there was something a little different about the court.  One member of the jury was deaf.  It was the first time a deaf person had ever been included in a jury in an Irish court.  And it came eleven and a half years after the first attempt by a deaf person to be allowed to serve on an Irish jury.

In this case the deaf juror did not get to decide on the outcome because after some preliminary argument the accused pleaded guilty and the jury was discharged.  But the judge was very conscious of the significance of what was happening.  When she discharged the jury she told them: “You are a historic jury and … you have made a little bit of legal history even if you didn’t get to deliberate upon a verdict”.

Judge Ni Chúlacháin said that within her lifetime six of the twelve jury members would not have been allowed to serve on a jury because they were women. She added: “I hope that in years to come the idea that a deaf person couldn’t be a juror will be considered as odd as the idea that a woman can’t”.

Eleven years earlier, in 2006, Galway woman Joan Clarke had been excluded from jury service because she was deaf and would have needed a sign language interpreter.  Angry at her exclusion and what she saw as an insult to the deaf community – the law at the time stated that deaf persons were “unfit” to serve on a jury – Ms Clarke approached FLAC (the Free Legal Advice Centres) for assistance.  FLAC took on her case and started a challenge in the High Court in November 2006.

The case was heard in 2008 and two years later, in July 2010, the court struck down the blanket ban on deaf persons serving on juries and said that each situation would have to be decided on its merits, though the judge himself was not very sympathetic to the idea of deaf jurors.

In the meantime, the law had been changed to drop the total ban on deaf persons but it still excluded persons whose ‘impairment’ made it “impracticable” for them to serve.

FLAC took on a series of other cases of deaf persons called for jury service, citing the experience of US courts where deaf persons routinely served on juries without difficulty. One prospective deaf juror was rejected by the Circuit Criminal Court in October 2010 on the grounds that having a sign language interpreter in the jury room would breach jury confidentiality. A month later, however, the senior judge in the Central Criminal Court (the High Court), the late Judge Paul Carney, ruled that Senan Dunne, a former producer with an RTE programme for the deaf, could serve on the jury in a criminal trial. FLAC had represented Mr Dunne.

Dealing with the argument about having interpreters in the jury room (the ‘thirteenth juror’ argument), Judge Carney said: “I would be entirely prepared to have the signer participate in this case … on taking, first of all, the ordinary interpreter’s oath and then going on to take a further oath in relation to confidentiality”. Mr Dunne did not get to serve, however, as the defendant’s legal team objected to him before he was sworn in.

After that FLAC, working with DeafHear, represented several other deaf persons called for jury service but none of them were selected.  The Law Reform Commission, in a consultation paper on juries issued in 2010, also called for deaf and blind persons to be allowed to serve. In its final report in 2013, however, the Commission was more cautious and called for more studies about the feasibility of including deaf persons.

FLAC continued to call for deaf persons to be allowed to serve on juries and in 2013 called attention to two complaints taken by deaf persons in Australia to the Committee which monitors compliance with the UN Convention on the Rights of Persons with Disabilities (CRPD). The Committee found against Australia in April 2016, calling on the authorities to provide the complainants “with reasonable accommodation in the form of Auslan (Australian sign language) interpretation in a manner that is respecting the confidentiality of proceedings.”

The Irish government has committed to ratifying the CRPD, although it has been very slow to do so, and in 2016, in preparation for ratification, it published the Heads of the Disability (Miscellaneous Provisions) Bill which was intended to bring Irish law into line with the Convention.  The first section proposes to amend the Juries Act to provide that “A person who is deaf shall not be ineligible for jury service by reason only of his requiring the services of a sign language interpreter for the purpose of enabling him to perform the duties of juror effectively”.  And, of course, in the same week that the first deaf juror was empanelled, the Oireachtas passed a Bill recognising Irish Sign Language as an official language.

It cannot be long now before a deaf person participates in jury deliberations here and the idea that deaf persons should be excluded from jury service becomes, in Judge Ni Chúlacháin’s words, “as odd as the idea that a woman can’t” serve on a jury.  And some of the credit should go to Joan Clarke, who had the courage and determination to challenge the ban on deaf jurors in the first place, and who has had to wait for nearly 12 years for this result.






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