540 / 736
the State shall, in particular, by its laws protect
as best it may from unjust attack and, in the case
of injustice done, vindicate the life, person, good
name and property rights of every citizen [Article
40 (3) 2]. Thus, the Supreme Court has held that
if a person were detained as a consequence of a
conviction in a trial by jury in which the judge
and counsel were in conspiracy, such detention
would be unlawful as being in breach of the
guarantee in Article 38 (1)
[The State (Wilson)
v Governor of Portlaoise Prison; 1
July 1958;
unreported]. There is not much assistance, how
ever, to be got from the decisions of our courts as
to the constitutional postulates of trial by jury in
criminal cases, primarily because the law regu
lating such trials remains largely unchanged since
the enactment of the Constitution in 1937, so that
the constitutionality of statutes on that ground
has not arisen. Furthermore, complaints of defects
in criminal trials by jury are normally decided in
the Court of Criminal Appeal on grounds of a
non-constitutional nature, for that Court has no
jurisdiction to entertain a question as to the vali
dity of a law having regard to the provisions of
the Constitution.
In the American Supreme Court two questions
in particular have arisen as to the constitutional
right to
trial by jury which are not without
interest to students of our Constitution. They are,
(1) must it be a twelve-man jury? and (2) must
the jury be unanimous in its verdict?
There is no doubt that the inclusion in the
American and Irish Constitutions of the require
ments of a jury for the trial of serious criminal
offences derives from the common-law tradition
that providing an accused with the right to be
tried by a jury of his peers, chosen at random,
gave a unique protection against oppression by
the State. While conviction by a jury was likely to
be accepted as a community judgment, a convic
tion by a judge or judges might be thought to be
based on State authoritarianism, bias, corruption,
caprice, or plain
legal
technicality.
So,
the
American Supreme Court has held
that "the
essential feature of a jury obviously lies in the
interposition between the accused and his accuser
of the common-sense judgment of a group of lay
men, and in the community participation and
shared
responsibility which
results
from
that
group's determination of guilt or
innocence"
(Williams v Florida,
22 June 1970). The questions
whether the jury should consist of twelve jurors
and whether it should be unanimous must ob
viously be answered in the light of what is consid
ered to be the essential feature of the jury as a
constitutional requirement.
Whether the Sixth Amendment requirement of
a jury carried with it the requirement of jury
constituted precisely of twelve persons came before
the American Supreme Court in
Thompson v
Utah
(1898). The court held that the jury must
consist of twelve persons, neither more nor less.
A number of subsequent decisions affirmed this
opinion, and in
Patton v United States
(1930)
the court went further and ruled that the Sixth
Amendment jury is characterised by three essen
tial features : "(1) that the jury should consist of
twelve men, neither more nor less; (2) that the
jury should be in the presence and under the
superintendence of a
judge having power
to
instruct them as to the law and advise them as to
the facts; and,
(3)
that the verdict should be
unanimous." This and subsequent decisions gave
reason for thinking that the law was clear, that
the constitutional right to trial by jury carried
with it the right to a twelve-man jury and a
unanimous verdict.
[to be continued]
EUROCOMPANIES
COMMISSION SUBMITS DRAFT LAW
by
ROBERT D. PRINSKY
Mr. Prinsky is Brussels correspondent of
the AP-Dow Jones Economic Service.
The Six are looking into a Commission pro
posal for a European company law that would
make it easier for Community firms to benefit
fully from the increased scale of the Community
market and meet the challenge of huge American
multinational enterprises. But, to the consternation
of some, the proposal would allow Community-
based subsidiaries of US and other non-Com
munity countries to take advantage of this form
of company incorporation.
France,
in particular, has been anxious
to
restrict the privilege to native EEC companies.
But the Commission, apparently because it wants
to avoid charges of discrimination that would
almost certainly have been
levelled, chose
the
open-door course.
The 609-page draft statute would establish a
European company
law, based on
the Rome
Treaty rather than laws of any member state. It
would diffei from existing national laws much as
84