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in this State, the unanimity rule applies and the
jury must consist of twelve jurors. However, it is
provided by statute that if in the course of a trial
a juror dies or is discharged because of incapacity
to act through illness or any other cause, or is
discharged for any sufficient cause arising from
the death or serious illness of the wife or husband
or a near relation of the juror, the jury shall
continue to be properly constituted, unless the
judge otherwise directs or the number of jurors
is thereby reduced to less than ten (Section 64,
Juries Act, 1927, and Section 6, Juries Act, 1945).
Whether the jury consists of ten, eleven or
twelve persons, the present law is that it must be
unanimous in its verdict. However, Section 43 of
the Criminal Justice Bill, 1967 (which was intro
duced in Bail Eireann but did not reach the
statute book) proposed to breach the unanimity
rule as follows : "The verdict of a jury in criminal
proceedings need not be unanimous in a case
where there are not less than eleven jurors if ten
of them agree on the verdict." If this section had
become law, it would have meant that where the
jury had been reduced in the course of the trial
to ten, the unanimity rule would prevail, but
where the jury consisted of eleven or twelve, a
majority of ten could bring in a verdict. Thus,
for example, if a jury of twelve, immediately on
retiring after the judge's charge, proceeded to
vote ten-to-two in favour of a verdict of guilty,
they could return to court without any delibera
tion and announce a verdict of guilty. There
would be no necessity for the majority even to
listen to the doubts of the minority. And the
existence of a minority opinion need not be made
known to the judge or to those charged with
carrying out the sentence. So, it would have been
theoretically possible for a man to be executed for
a capital offence although two of the jury that
found him guilty might not have been satisfied as
to his guilt—in fact might have been convinced
on the evidence of his innocence.
The desirability of such an important change
in the law lies in the field of legislative policy
(and therefore lies outside comment here), while
its permissability having regard to the relevant
provisions of the Constitution remains merely a
matter of academic speculation. It is, however,
of practical interest to compare the change in the
unanimity rule proposed in the Criminal Justice
Bill with the change in the rule which was in fact
made by the Irish Parliament in 1929 and the
British Parliament in 1967, neither of which legis
latures was bound by the restrictions of a written
Constitution [see
The State (Ryan) v Lennon,
1935 I.R. 1970].
In 1929, a time when jurors were being sub
jected to intimidation to such an extent as to
endanger the administration of justice, the Irish
Free State legislature passed, as a temporary expe
dient to -meet an abnormal situation, the Juries
(Protection) Act, 1929. The Act was expressed to
expire in 1931, but the Juries (Protection) Act,
1931, extended its operation for a further two
years. Section 5 provided that in every trial by
jury of a crime or offence a majority verdict of
nine would be sufficient, and the verdict of such
nine members or upwards was to be taken and
recorded as the jury's verdict without disclosure
of the number or identity of the dissentients. The
section, however, went on to stipulate that where
a person was found guilty of a capital offence, the
judge was to inquire of the foreman of the jury,
and the foreman was to notify to the judge pri
vately in writing, whether the verdict was or was
not unanimous and the number of dissentients (if
any), and the judge was to report to the Minister
for Justice the information so obtained. The latter
provision in the section seem to express the un
easiness of the legislature at the prospect of the
death penalty being carried out after a majority
verdict of guilty. It is noteworthy that in the
United States, where some States have departed
from the unanimity rule and the requirement of a
jury of twelve, in neither Federal nor State laws
does such relaxation seem to be allowed in trials
of capital offences.
The other example of the legislative relaxation
of the unanimity rule is that made by the British
parliament in section 13 of the Criminal Justice
Act, 1967. That section allows a jury in criminal
proceedings to bring in a majority verdict of ten
where there are not less than eleven jurors and a
majority verdict of nine where there are ten
jurors. But the section adds two important pro
visos to the acceptance of a majority verdict:
(1) a court shall not accept
a majority verdict of
guilty
unless the foreman of the jury has stated in
open court the number of jurors who agreed to
and dissented from the verdict, and (2) a court
shall' not accept
a majority verdict
unless it
appears to the court that the jury have had not
less than two hours for deliberation or such longer
period as the court thinks reasonable having
regard to the nature and complexity of the case.
The section thus ensures that, whether the
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