302 / 336
function in so far as jury service was concerned.
However, the provision made in the Juries Act was
undisguisedly discriminatory on the ground of sex only.
It would not be competent for the Oireachtas to legis-
late on the basis that women, by reason only of their
sex, were physically or morally incapable of serving and
acting as jurors.
He was of opinion that this discrimination in respect
of women, in favour or against women, depending on
one's point of view, was not consistent with the Con-
stitution, and was not carried over as part of the law
since the coming into force of the Constitution.
Mr. Justice Walsh dismissed the submissions which
had been made to the Court concerning the validity of
all the verdicts and acts of juries empanelled and acting
under the provisions of the 1927 Act. It had been
suggested that the verdicts of all such juries could be
impugned. If those juries were empanelled in accord-
ance with the Act, however, it meant that nobody
served on those juries who was not entitled by law to
do so and the acts and verdicts of those juries were
those of juries composed of properly qualified jurors.
Mr. Justice Henchy,
in the course of his judgment,
said that the plaintiffs came before the Court as accused
persons, not as would-be jurors. For that reason he
thought it proper to deal with their case as one founded
on their rights as accused persons awaiting trial by
jury, and not on the rights of persons who were not
before the Court and were not represented before the
Court.
He said that a rating qualification shut the door on
all citizens who were not liable to pay rates. Such a
jury excluded a range of mental attitudes which, be-
cause they would be absent from the jury box and jury
room, would leave an accused with no hope of the
contribution they might make in the determination of
guilt or innocence. This was particularly so in the trial
of offences involving damage to property and, more
particularly, in the trial of offences involving damage
for which ratepayers were liable to make compensa-
tion. A jury so selective and exclusionary was not
stamped with the genuine community representative-
ness necessary to classify it as the jury guaranteed by
Article 38 (5). It was, therefore, unconstitutional.
All male jury constitutionally unacceptable
There was no doubt that a consequence of the ex-
emption of women, unless they claimed eligibility, was
that women hardly ever served on juries. For practical
purposes jury service was a male preserve and the
plaintiffs were correct in saying that the operation of
the statutory exemption of women virtually ensures that
the jury before whom they would stand trial would be
entirely male. If the all-male jury was constitutionally
unacceptable, the statutory exemption of women could
not stand.
While the plaintiffs had not shown that their chances
of a fair trial would be diminished because the jury
would be all male, and while it was not possible to
ensure a mixed jury, nevertheless the statutory pro-
visions which operated to make an all-male jury vir-
tually certain could not be reconciled with the choice of
jurors necessarily comprehended by Article 38 (5).
Mr. Ju
tice
Griffin
said that the purpose of a jury
was to interpose bfetween the State and the accused
person an impartial body of the accused's fellow citizens
to try the issue. The jury should, therefore, be a body
truly representative of and a fair cross-section of the
community.
No longer any justification for exempting women from
jury service
He said that at the beginning of the century women's
place was generally regarded as being in the home. At
that time it was unthinkable to most men and to many
women that women should vote or, with rare exceptions,
engage in business or industry or join the professions.
Nowadays, women were progressively taking their right-
ful place in the Community and engaging in professions
that were regarded until comparatively recently as the
sole preserve of men. It seemed to him that, if ever
there was, there could no longer be any justification
for exempting women from the duty or privilege of jury
service.
Mr. Justice Griffin said that, human nature being
what it was, and in the light of experience to date, it
was to be expected that unless jury service was com-
pulsory for women, no women would, in fact, serve on
juries. Juries drawn from a panel which would not
include women would not, in his opinion, be truly
representative of the community. It must be remem-
bered, however, that the right to a jury did not entitle
an accused person to a jury tailored to the circum-
stances of the particular case. It might very well
happen that a jury drawn by lot might include no
women, or indeed no men, but that would not in-
validate the jury-
He allowed the appeal on both grounds and a short
judgment by
Mr.
Justice
Budd
also allowed the appeal
on the same grounds.
The Chief Justice,
in his minority judgment, said
there was a recognition of the woman's right to serve
on a jury but there was also a recognition that in the
case of many women, jury service could be a severe
TAXATION
SEMINAR
THE INCORPORATED LAW SOCIETY OF
IRELAND
— and —
THE SOCIETY OF YOUNG SOLICITORS
will be holding a 2 day Seminar on
CAPITAL TAXATION in the Great
Southern Hotel, Galway, on Friday
27th and Saturday 28th February,
1976.
Programme and Application Forms
will be available shortly.
.295