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Recent Irish Cases
Women are entitled by the Constitution as of right to
:erve as jurors, and it is unconstitutional to impose any
minimum rating qualification on jurors.
The Supreme Court allowed an appeal by two
Dublin women against the dismissal by the High
Court of their action in which they had sought declara-
tions that certain provisions of the Juries Act, referring
to the exemption of women from jury service and re-
ferring to the necessity for a property qualification,
were inconsistent with the Constitution.
The Court allowed with costs the appeals brought
by Mairin de Burca of Ballsbridge, and Mary Ander-
son of Sandymount.
The Court granted a declaration that the Juries Act,
1927, to the extent that it provides (a) that a minimum
rating qualification is necessary to make a citizen quali-
fied and liable to serve as a juror and (b) that women
are to be exempt from jury service but entitled to serve
on application, is inconsistent with the Constitution
and is of no force or effect.
The two appellants had been sent forward to the
Circuit Court for trial on charges of wilfully obstruct-
ing a member of the Garda Siochana in the execution
of his duty, having pleaded not guilty. They had
objected to being tried by a jury selected from the
jurors on the panel as they expressed the fear that they
would not get a fair trial because 1, no women were
included in the panel; and 2, the jury would be con-
fined to property holders and be selected on the basis
of property qualification.
The proceedings against them were adjourned (and
still stand adjourned) to enable them to take the pro-
ceedings now concluded.
Women given right to opt in as jurors
Mr. Justice Walsh,
in the course of his judgment,
said that the progression of events was that in 1919 all
men and women with the requisite property qualifica-
tion were qualified and liable to serve as jurors, subject
to such disabilities resulting from conviction for felonies,
et cetera. In 1924 women were given the right to opt
out of jury service and, by the 1927 Act, in order to
serve on a jury, they had to opt in.
He was of the view that the Constitution did not
preclude the Oireachtas from enacting that prospective
jurors should have certain minimum standards of
ability or personal competence. He was satisfied that the
constitutional provisions did not prevent the Oireachtas
from validly enacting that certain categories, by virtue
of their physical or moral capacity, could properly be
excluded from either the obligation or qualification to
serve on a jury. He was also satisfied that the Oireachtas
may validly legislate to the effect that some persons,
by reason of their particular function or role in society,
may be relieved, in the interests of the common good'
from the obligations of jury service.
'
Dealing with the property qualification in the Juries
Act, 1927, Mr. Justice Walsh posed the question: "Can
it seriously be suggested that a person who is not the
rated occupier of any property or who is not the rated
occupier of property of a certain value is less intelligent
or less honest or less impartial than one who is so
rated?" The answer could only be in the negative.
Property qualifications cannot be rigidly confined
If a case could be made for having a property qualifi-
cation it could not reasonably be confined to one parti-
cular type of property. It would be just as rational to
suggest that jury service should be confined to the
owners of motor-cars over a certain horsepower or
motor-cars of more than a certain value. The particular
type of property qualification totally ignored the reali-
ties of wealth. A man may be a most highly qualified
person for jury service, and may indeed be a very
wealthy man, and not be the rated occupier of any
property. On the other hand, the rated occupier of
property may be illiterate and poverty-stricken. He
may even be a person of unsound mind.
Mr. Justice Walsh said he was, therefore, of the
opinion that such discrimination as was created by the
distinction between being the rated occupier of property
of a certain value and everybody else was one which
was inconsistent with and violated Article 40 (1) of
the Constitution and was, therefore, a distinction which
could not be validly the subject of legislation by the
Oireachtas. That being so, it must follow that any
legislation to that effect in force at the date of the
coming into operation of the Constitution was neces-
sarily inconsistent with it and was not carried over by
Article 50 of the Constitution.
Dealing with the complaint based on the provision
in the Act exempting women from liability from jury
service, Mr. Justice Walsh said it was true that the
Constitution in Article 41 in dealing with the family
drew attention to and stressed the importance of
woman's life within the home and made special pro-
vision for the economic protection of mothers who had
home duties.
But, of course, women fulfilled many functions in
society in addition to or instead of those mentioned in
Section 2 of Article 41. There were women engaged in
all the professions, in most branches of business, in art
and literature and in virtually every human activity.
This was scarcely surprising in the light of the fact that
women constituted approximately one half of the
human race.
Only nine women had applied for jury service
In this State, approximately half the adult popula-
tion consisted of women and, in urban areas, the most
likely source of prospective jurors, there were more
women than men.
According to figures provided by the Department of
Justice, for the 10 years immediately preceding the
hearing of this action the total number of women whose
names were inserted in the jury list was the startlingly
low figure of nine. The evidence indicated that a very
small number of those women who were eligible for
jury service had volunteered for jury service or had
succeeded in serving where they did volunteer.
Even assuming that the vast majority of women did
not wish to serve on juries, that was in itself not a good
ground for legislative discrimination in their favour.
There could be little doubt that the Oireachtas could
validly enact statutory provisions which could, within
the provisions of Article 40, have due regard to differ-
ence of capacity both physical and moral and of social
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