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THE CONSTITUTIONAL RIGHT TO TRIAL BY JURY
by Hon. Mr. Justice Henchy (Part I)
One of the most effective safeguards of personal
liberty in the Irish Constitution is the guarantee
in Article 38 (5) that "no person shall be tried on
any criminal charge without a jury" save in the
cases excepted by the Article. The excepted cases
are (1) minor offences; (2) trials in special courts,
which may be set up when the ordinary courts
are inadequate to secure the effective administra
tion of justice and the preservation of public
peace and order; and (3)
trials before military
tribunals to deal with offences against military
law and also to deal with a state of war or armed
rebellion. The effect of the Article is that in nor
mal conditions a person charged with a major
offence against the general law of the State is
entitled as of constitutional right to trial by jury.
So far, the scope of this constitutional right has
come before the courts only in cases where there
was a question whether the offence charged was
minor or major :
Melting v 6 Mathghamhna,
(1962) I.R.I.;
Conroy v A.-G.
(1965), I.R.411;
The
State (Sheerin) v Kennedy
(1966), I.R.I. It emerges
from these cases that the Supreme Court has held
that (1) in deciding whether an offence is minor
or not, consideration should be given to (a) the
punishment prescribed for the offence,
(b)
the
moral guilt involved, (c) the state of the law when
the Constitution was enacted, and
(d) public
opinion at the time of that enactment; (2) of these
factors, the gravity of the punishment is the prim
ary consideration; (3) punishment of six months'
imprisonment and a fine of £100 is not so severe
as to make the offence other than minor;
(4)
disqualification from holding a driving licence is
not to be treated as punishment for the purposes
of the test;
(5) detention for three years
is a
punishment so severe as to prevent the offence
from being classified as minor. The court has not
considered it necessary to say at what point be
tween six months and three years a sentence of
imprisonment or detention becomes so serious a
punishment that the offence requires trial by jury.
By way of comparison, it is interesting to note
how the American Supreme Court has dealt with
the same problem. Article III of the American
Constitution and the Sixth Amendment, as inter
preted by the American Supreme Court, require
that persons charged with "serious" as opposed to
"petty" or "minor" offences be afforded the right
to trial by jury. The objective criteria laid down
by the American Supreme Court for determining
whether an offence is serious or petty have been
substantially
taken and applied by
the
Irish
Supreme Court. Like the Irish Court, the Ameri
can Court has considered the most relevant of
those criteria to be the severity of the maximum
authorised penalty :
see
Frank v United States
(T969). Applying those guidelines, the American
Court, like the Irish Court, has held that a pos
sible term of six months' imprisonment is short
enough to permit classification of the offence as
petty or minor :
Dyke v Taylor Implement Co.
(1968). Shortly after the latter decision the Ameri
can Court held that a two-year maximum term of
imprisonment was sufficiently serious to require
trial by jury.
Duncan v Louisiana
(1968). Since
then the American Court had to decide in
Baldwin
v New York
(1970) whether the possibility of a
one-year sentence was enough to require trial by
jury. It held that it was, but unlike the Irish
Court, which held in
Sheerin's
case that it was not
necessary to say where the boundary line lay, it
went on to state specifically that no offence can
be deemed petty for the purpose of the right to
trial by jury where imprisonment for more than
six months is authorised. Thus, in the United
States the line is drawn more clearly between
cases that must be tried by jury and those that
may be tried summarily.
Once it is established that a case must be tried
by jury, the question arises as to what that neces
sarily implies. All that Article 38 (5) of the Consti
tution says is that such cases shall not be tried
"without a jury". But what does the Constitution
envisage as being necessarily involved in trial by
jury? If one were to attempt a comprehensive
answer to that question it would be necessary to
look at a number of other constitutional provi
sions, for it is a fundamental rule of constitutional
interpretation that the Constitution must be con
strued as a harmonious entity so as to avoid dis
sonance between
its
separate provisions. For
example, it would be necessary to bear in mind
that the Constitution provides that no person
shall be tried on any criminal charge save in due
course of law [Article 38 (1)]; that no citizen
shall be deprived of his personal liberty save in
accordance with law [Article 40 (4) 1]; and that