The jury in the Ian Bailey case reached its verdict remarkably quickly considering the length of the trial itself. Yet, they ultimately had to decide only two related questions: did certain gardaí conspire to implicate Mr Bailey in the murder of Sophie Toscan du Plantier, and did they conspire to obtain statements from a particular witness by wrongful means? The two questions related to different combinations of gardaí. One of the more intriguing aspects of the case, to an outside observer at least, is that at the very last minute certain other claims, notably that relating to false arrest, were withdrawn from the jury, principally because they were time-barred.
This problem would surely have been evident from the outset, and while there may have been a good reason for the State adopting the strategy that it did, both the plaintiff and the jury are entitled to ask if the trial could have been abbreviated by having a ruling on these issues much earlier in the proceedings. Of course, it was Mr Bailey himself who brought the action and made the claims, so he thereby assumed the various risks associated with a contested trial. Jurors, however, may well wonder if it was really necessary for the trial to have lasted as long as it did. This issue may also become relevant when a decision is being made on the award of costs. That will be a decision for the judge alone.
For the moment, therefore, the case probably raises more questions about jury trial in civil actions than about the substantive issues in the case. While trial by jury is constitutionally required in serious criminal cases, apart from those heard in the Special Criminal Court, it is available in civil cases only in respect to a limited number of actions which are specified by statute law.
The right to trial by jury, irrespective of whether it derives from the Constitution or from ordinary law, is unusual to the extent that it cannot be delivered directly by the State or its agents. Instead, persons invoking the right must rely for its fulfilment on the willingness of their fellow citizens to undertake what can sometimes be an onerous civic duty. Jury trial developed when most trials, whether civil or criminal, were very short. In fact, until relatively recently, a jury, once sworn in, was kept sequestered until they reached a verdict.
Today, we adopt a more enlightened approach in that regard. Jurors are allowed to return home in the evenings and at weekends, even while they are deliberating on their verdict. But as trials get longer, the sacrifice that many people have to make in order to serve on juries is very considerable indeed.
This raises a number of questions. Is it really necessary to have a jury for some civil cases, such as Ian Bailey’s, or should we simply allow all civil trials to proceed before a judge alone, or perhaps a bench of three judges in a complex case? After all, major commercial cases, which often raise complex questions of both fact and law, are typically heard by a single judge. Another question is whether jurors in lengthy trials should be expected to serve entirely free of charge, however long the trial may be.
There is still, of course, a strong argument for retaining juries in cases of this nature which involve competing factual narratives and where much depends on the credibility of witnesses. Credibility, in turn, must often be assessed not only by examining the coherence of a witness’s evidence and how he or she withstands cross-examination, but also by observing a witness’s general demeanour. Traditionally, it has been felt that assessments of this kind are best left to the collective intelligence and common sense of 12 randomly chosen citizens rather than to an individual judge.
It is probably fair to say that in Ireland jurors are rather shabbily treated. They receive neither remuneration nor expenses, however long they have to serve in a particular trial. If they are employed, their employer is legally obliged to pay them while they are on jury service. This can be quite onerous where the employer is a small business and, of course, it provides no benefit at all to a jury member who is self-employed. Admittedly, a person selected for jury service may apply to be excused because of family or other commitments, and courts usually deal with such requests sympathetically.
The Law Reform Commission has recently recommended that jurors should be paid a modest daily allowance to cover transport costs and other incidental expenses. It also suggested that the Government might examine certain strategies to relieve the burden on employers who have to pay the wages of staff members doing jury service.
Civil trials like that in Ian Bailey’s case may be rare, but the considerable number of lengthy criminal trials that have recently taken place should motivate the Government to give urgent attention to jury welfare.
Experience shows that while many do not answer the call to jury service, a sufficient number of committed citizens have always been willing to come forward and serve, often at considerable inconvenience and hardship to themselves. Judges and lawyers are unanimous in their admiration for the seriousness, dedication and commitment with which jurors discharge their vitally important role as fact-finders. Jury trial has been a lynchpin of our legal system for centuries. Perhaps we should now treat those who deliver it a little better.
Tom O’Malley is a barrister and Senior Lecturer in Law at NUI Galway, and a member of the Law Reform Commission.