Judgment Title: Ó Maicín -v- Ireland & ors Neutral Citation: [2014] IESC 12 Supreme Court Record Number: 292/10 High Court Record Number: 2009 751 JR Date of Delivery: 27/02/2014 Court: Supreme Court Composition of Court: Hardiman J., O'Donnell Donal J., Clarke J., MacMenamin J., O'Neill J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Dismiss Notes on Memo: Judgments also by Judge MacMenamin | ||||||||||||||||||||||||||||||
Note: This is an approved translation of the judgment which was delivered in Irish and which appears on the Gaeilge section of this site. _______________________
[Record No: 292/2010] Hardiman J. O’Donnell J. Clarke J. MacMenamin J. O’Neill J.
Peadar Ó Maicín Applicant/Appellant and
Ireland, The Attorney General, The Minister for Justice Equality and Law Reform, His Honour Raymond Groarke and the Director of Public Prosecutions Respondents Judgment of Mr. Justice Clarke delivered the 27th February, 2014. 1. Introduction 1.2 The requirement that persons are to be tried on criminal charges with a jury is also expressly specified in Article 38.5 of the Constitution. That provision is, in its terms, subject to exceptions in the case of minor offences, special courts and military tribunals. That there is an obligation on the State to provide, save in those cases exempted, for jury trials cannot be doubted. There are, however, questions concerning the extent to which the constitutional provision for trial by jury is a right enjoyed by accused persons, an obligation on the State independent of the position of the accused or, indeed, both of these. There are also questions as to the extent to which the Oireachtas may, consistent with the Constitution, enact laws limiting the composition of a jury. 1.3 This appeal raises questions concerning the rights of persons who wish to have a criminal trial, in which they are the accused, tried with a jury who would be in a position to hear the evidence in Irish without translation. This appeal, therefore, raises questions concerning the extent of the entitlement of such a person to have a criminal trial conducted in Irish without translation so far, at least, as their own participation in the trial is concerned. Likewise the possible practical difficulties of empanelling a jury who would be competent to conduct such a trial without the benefit of translation raises questions about the extent of the limitations which can legitimately be placed on the jury empanelment and selection process. 1.4 Thus, important issues arise as to the extent of the language and other rights enjoyed by persons seeking a jury competent in Irish, the extent to which it is permissible to limit the composition of a jury in a manner which is consistent with the use of the term jury in the Constitution and the balancing of any language and jury trial rights and obligations which derive from the Constitution. 1.5 In the High Court, the plaintiff/appellant ("Mr Ó Maicín") sought orders designed to establish his entitlement to be tried before a jury which could understand both Irish and English. His claim failed for reasons set out in a judgment of Murphy J. (Ó Maicín v. Eire & ors [2010] IEHC 179). Mr. Ó Maicín has appealed to this Court against the judgment and order of Murphy J. 2. Some general observations 2.2 However, in addition, there are a number of aspects of the judgment of Hardiman J. with which I am fully agreed. First, I agree that, as he puts it, this is “fundamentally” a language rights case in the sense that the argument put forward by Mr. Ó Maicín derives from his asserted language rights. While Mr. Ó Maicín also puts his case in terms of his undoubted right to a trial in due course of law pursuant to Article 38 of the Constitution, and in terms of a right to equality before the law with an English speaker under Article 40.3.3 of the Constitution, each of those assertions have, as their ultimate foundation, a language right. 2.3 Some persons have no option but to be tried before a jury which does not speak their native tongue. In modern Ireland there are many “new Irish” or others who happen to be in the jurisdiction exercising rights such as the right to work under the European Treaties. Such persons may be able to speak English (or, perhaps, Irish) to a greater or lesser extent but many are not sufficiently fluent that they would wish to give evidence in an important case involving a serious criminal accusation against them other than in their native language. If a person could not ever have a fair trial, as such, unless the decision maker could speak their native language then it would, in practical terms, be impossible to put many such persons on trial. The conduct of a trial in a language other than that of the accused is not, therefore, of itself and without more a breach of any constitutional entitlement. That does not, of course, mean that such persons do not have significant constitutional entitlements to translation and assistance so as to minimise any disadvantage to which they may be put. 2.4 Likewise, an equality argument raised by such a person based on the assertion that he or she was at an impermissible disadvantage compared with an English speaker, who would be tried with a jury capable of understanding their evidence without translation, could not succeed. The fundamental point made on behalf of Mr. Ó Maicín in respect of his entitlement to a trial in due course of law and to his entitlement to equality before the law stems directly from the fact that he is a speaker of the national and first official language. 2.5 I also agree with the treatment of the State (Sheehan) v The Government of Ireland [1987] I.R. 550 in the judgment of Hardiman J. If it were to be established that Mr. Ó Maicín had a constitutional right which could be met by the exercise of a statutory discretion by a Minister of Government, then it seems to me that different issues would arise to those which were at play in Sheehan. In Sheehan the Oireachtas had, as Hardiman J. points out, enacted legislation which, if commenced, would have extended the liability of local authorities to nonfeasance in addition to the existing liability in respect of misfeasance. The relevant provision had, however, never been commenced. The issue in Sheehan was as to whether there was an implied obligation to commence within a reasonable period of time. This court, in Sheehan, reversing Costello J. in the High Court, held that there was not. However, as Hardiman J. points out, there were no constitutional rights involved. The State has, of course, a duty to vindicate any established constitutional entitlements. If a constitutional entitlement can be established and if there is a means by which it can be vindicated by the exercise of a power vested, even on a discretionary basis, in the State or an organ of the State, then there will always be a strong case for the court declaring an obligation on the part of the State to exercise any discretion in a manner which would vindicate the constitutional right established. The real issue, it seems to me, is as to whether the constitutional right asserted in this case can be said to be established and to apply in the circumstances of this case in the first place. If it is so established and applicable, then clearly the court is obliged to take whatever measures may be appropriate to seek to ensure that such a right is vindicated. 2.6 For those reasons it seems to me that the three questions which fall for consideration are those identified in the introduction to this judgment. First, what is the extent of any language rights enjoyed by Mr. Ó Maicín? Second, what limitations can or must be placed on the composition of a jury so as to meet the constitutional requirement for trial with a jury in non-minor cases? Third, to the extent that there may be a conflict between any rights and obligations arising under the first two questions, how is such a conflict to be resolved? On that basis I turn first to the extent of any language rights involved. 3. Mr. Ó Maicín's language rights 3.2 It is, of course, correct that, as Kennedy C.J. pointed out in O’Foghludha, the status accorded to Irish in the Constitution does not derive from the fact that Irish was (or indeed is) the language universally spoken by the people or even the majority of the people. Rather that status derives from Irish being “the historic distinctive speech of the Irish people”. It also follows, as Kennedy C.J. pointed out, that the State is obliged to do everything within its sphere of influence to maintain Irish in its status as the national language such that no organ of the State may derogate from the pre-eminent status of the Irish language as the national language. 3.3 While the State, and each of its organs, has an obligation to promote and respect the high status of the Irish language there may, nonetheless, be limitations on an entitlement to have Irish used which derive from the limited use of Irish in ordinary everyday life at least so far as many parts of the country is concerned. Other citizens are entitled to use English as an official language if they wish and their rights so to do must also be respected. As the point was not argued it is not appropriate to consider whether Art. 8.3 may provide an express constitutional recognition of such difficulties. I would, therefore, leave to a case in which the point was argued, the extent (if any) to which Art. 8.3 might be said to influence the proper interpretation of the rights conferred by Art. 8 as a whole. 3.4 It seems to me, however, to follow from MacCarthaigh v. Eire [1999] I.R. 200, (a case to which I will return) that there are limitations on the rights which those who may wish to use Irish can enjoy. That is not to say that the State can in any way ignore the position of those who wish to conduct their business with the State in Irish. Leaving aside the legislative provisions which have been analysed in the judgment of Hardiman J., there is a clear constitutional obligation on the State to encourage the use of Irish for official business for to do otherwise would be to derogate from the constitutional status accorded to the Irish language. 3.5 The obligation on the State to encourage the use of Irish applies, of course, independent of the language wishes of those with whom the State is dealing. To place the general obligation of the State above the level of “encouraging” would imply that there was a constitutional imperative to implement the sort of quasi compulsion applied in the past which, it is at least arguable, led to less rather than more commitment to Irish among the general public. It does not seem to me that the general obligation of the State can, therefore, be put any higher than an obligation to “encourage”. However, the specific obligation of the State which arises when a citizen wishes to conduct business with the State in Irish is different. That the State has a constitutional obligation to respect the language wishes of a citizen, who wishes to use Irish in their communications with the State or its agencies, cannot be doubted. 3.6 The fact that the State has such a constitutional obligation does not, however, mean that, at a constitutional level, there is an absolute obligation on the State to ensure that persons wishing to so do can conduct all official business through Irish without translation. An assessment of whether, in any particular circumstance, the State has complied with its obligations in respect of the Irish language, will, therefore, necessarily involve an analysis of the rights of those who wish to conduct their affairs through Irish but also the language rights of those wishing to use English and, where appropriate, any competing interests or constitutional obligation that may arise. 3.7 It follows that those wishing to conduct official business in Irish do have a right, derived from the constitutional status of the Irish language, to have their business conducted in Irish. However, it equally follows that that right is not absolute and must be balanced against all the circumstances of the case (not least the fact that the great majority of the Irish people do not use Irish as their ordinary means of communication) particularly the fact that other citizens are entitled to conduct their business in English as an official language, and also any other competing constitutional interests which may arise. 3.8 It is important to note that this case does not involve the consideration of an argument put forward on behalf of the State that a particular level of commitment to Irish would involve a disproportionate demand on the State’s resources. In such a case it would be necessary to decide, with some precision, the precise standard against which any such argument would need to be measured. I would, therefore, leave to a case in which the issue specifically arose, the question of whether a conflict between Irish language rights, on the one hand, and the State’s allocation of scarce national resources, on the other, ought to be judged by a standard of reasonableness, practicability, or, as O’Neill J. suggests in his judgment in this case, one of feasibility. In my view this case turns on the necessity to balance the undoubted language rights of Mr. Ó Maicín with other non-resource constitutional issues, most particularly the language rights of others including the rights of persons, who cannot speak Irish to a sufficient standard to be able to follow a case without translation, to serve on juries and the constitutional obligation to ensure representative juries to which I now turn. 4. The constitutional status of a jury trial 4.2 Indeed, there is a reflection of the constitutional imperative for jury trial in non-minor cases in the fact that there must be a judicial determination by a District Judge that an offence is, properly speaking, a minor offence before that District Judge can accept jurisdiction to try in a summary fashion a case where there is an option for trial on indictment with a jury. Likewise the creation of a purely summary offence, in which no option for trial by jury is available, can be subject to challenge on the basis that the offence thereby created is not, or at least is not always, a minor offence. Those measures are recognition of the fact that trial by jury goes beyond the rights of the parties and involves a constitutional imperative. Given that imperative and the absence of any definition of what a trial with a jury might mean, there has, understandably, been debate over the extent to which it is open to the Oireachtas to regulate both the composition of a jury and the manner in which a jury trial can properly be conducted in accordance with the constitutional imperative. For the purposes of this case, it is the potential composition of a constitutionally compliant jury that needs to be considered. In that context, the leading case is de Búrca v Attorney General [1976] I.R. 38 while some assistance can also be obtained from the State (Byrne) v Frawley [1978] I.R. 326. 4.3 De Búrca was concerned with the provisions of the Juries Act 1927 which imposed a minimum rating qualification and also exempted women from the general obligation to serve on juries subject to the entitlement of a woman to apply. Those provisions were found to be inconsistent with the Constitution. In addressing the fundamental principle, Henchy J. said the following at p. 75:-
4.7 The State (Byrne) v Frawley was concerned with the fall out from de Búrca but some of the dicta in that case cast light on the general principle. At p. 340, O’Higgins C.J. noted that any citizen qualified to serve as a juror “had a legal and constitutional right to serve if called”. 4.8 Henchy J. also quoted with approval from the judgment of the United States Supreme Court in Taylor v Louisiana (1975) 419 U.S. 522 which accepted “the fair-cross-section requirement as fundamental to the jury trial” guaranteed under the sixth amendment of the US Constitution. The real issue in State (Byrne) v Frawley was as to whether an accused who had allowed a jury trial to proceed after the decision of the Supreme Court in de Búrca could seek to rely on the finding of unconstitutionality made in de Búrca to invalidate his conviction. This Court held he could not. 4.9 What seems to follow from an analysis of those authorities is that the requirement that non-minor offences be tried with a jury, as found in Article 38.5 of the Constitution, carries with it an obligation that the jury be broadly representative or represent a fair cross-section of the community. It seems also to follow that it may be possible to exclude persons provided that the jury remains, in the words of Henchy J. in de Búrca, “competent, impartial and representative”. In deciding how to define the parameters of a jury panel, the Oireachtas is afforded a discretion in deciding who may be excluded but if the exclusion is such as renders the jury panel unrepresentative or such as would fail the fair cross-section test, then the restrictions imposed by the Oireachtas will fall into unconstitutionality. 4.10 It follows, therefore, that Mr Ó Maicín not only has a right to a trial with a jury in the sense in which that term is used in the Constitution but that there is an obligation on the State, assuming that the offence alleged against him is not a minor offence which can be tried summarily, to ensure that he is tried by such a jury and that the jury is, in accordance with the jurisprudence, broadly representative and represents a fair cross-section of the community. Against that background, it is necessary to turn to the question of how such language rights as Mr Ó Maicín may have, can and should be balanced with the jury imperative which I have sought to analyse. In that context it is necessary to analyse MacCárthaigh which is, by far, the case which most closely resembles this one. 5. MacCárthaigh 5.2 MacCárthaigh came before O’Hanlon J. in the High Court who analysed, (at p. 204 - 205) the judgments of this court in de Búrca and State (Byrne) v Frawley. O’Hanlon J. also engaged in an analysis of the evidence concerning the census figures then available. O’Hanlon J. also noted that, irrespective of the language competence of the decider of fact, the services of an interpreter would be unlikely to be able to be dispensed with “since his assistance would be required on behalf of other people who would be participating in the proceedings and who would not have a perfect knowledge of the Irish language”. O’Hanlon J. went on to state the following at p. 207:-
'Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial'.”
5.3 What is absolutely clear, therefore, is that, on the basis of the circumstances pertaining in Mr. MacCárthaigh’s case and on the facts concerning knowledge of Irish as they were in the late 1990s, this Court held that Mr. MacCárthaigh was not entitled to a trial by a jury who could understand Irish without the assistance of translation. The central question which this Court now has to decide is as to whether this case is different either because of a change in circumstances generally or because of the connection between this case and the Gaeltacht which was not present in Mr. MacCárthaigh’s case given that the circumstances of the latter case arose in Dublin. I, therefore, turn to that question. 6. Does the decision in MacCárthaigh apply here? 6.2 It is important to note the reference made by Hardiman J. to the contents of the Law Reform Commission paper on juries which draws attention to the fact that an informal process seems to exist for the exclusion from jury service of persons who are not competent in English. This, as Hardiman J. points out, does not derive from any express statutory requirement or obligation. 6.3 The second point to note are the figures for Irish speaking in Gaeltacht areas as revealed in the most recent census which were placed in evidence before the High Court in this case. That evidence is summarised in the judgment of Hardiman J. and is also analysed in the judgment of O’Neill J. so that it is unnecessary to repeat it here. In summary, it may be said that the evidence suggests that, in a broad Gaeltacht area, approximately two-thirds of the community speak Irish on a daily basis with the figure reaching up towards 90% in some more narrowly drawn areas by reference to those district electoral divisions (the basic unit) with the highest level of recorded Irish speaking. However, the precise figure applicable to the jury panel is not, as O’Neill J. points out, clear and is likely to be quite a bit below 90%. 6.4 It does, however, seem to me to be also important to have regard to the comment of O'Hanlon J. in the High Court in MacCárthaigh to the effect that not all of those recorded as being capable of speaking Irish (or, indeed, given the evidence in this court, using Irish on a daily basis) may be able to do so to a sufficient level as would enable them to conduct the difficult task of following evidence and argument in Irish without assistance. It may well be true that the gap between recorded competence in Irish and the ability to fully deal with a case in Irish without assistance may be materially smaller in Gaeltacht areas than, for example, in Dublin, where there may be many who are recorded as having a competence in Irish but where that competence derives from having learned Irish in school with that competence having faded to a greater or lesser extent in succeeding years. Regular use will, of course, ensure that competence does not decline. 6.5 In that context it is also striking to note the results of a study and report prepared, in the 1970s, by Lord Justice Edmond Davies for the then Lord Chancellor of Britain, Lord Hailsham. It would appear that the full report was never published (see paper by Mr. Justice Roderick Evans, "Bilingual Juries?", (2007) 38 Cambrian Law Review 145) but some of its features were made public in a statement by Lord Hailsham in the House of Lords on the 12th June, 1973 outlining a summary of the recommendations of the report. The relevant passage reads as follows:-
6.6 Criticism of the quality of translation may well, on occasion, be justified. The risk of mistranslation cannot be ruled out. But likewise, the risk of misunderstanding by many of those who have a reasonable competence in Irish but who do not speak Irish as their mother tongue, seems to me to be equally significant. It is likely that there may be many who would feel competent to conduct an ordinary conversation in Irish and would, for example, have little difficulty in following the news in Irish but who would, nonetheless, not feel entirely confident in being able to avoid the risk of misunderstanding evidence or submissions. 6.7 It is also necessary, in this context, to have regard to the point noted by O'Hanlon J. in MacCárthaigh. A translator will be required to translate any evidence, or submissions or directions, given or made in Irish into English provided that there are some persons sufficiently involved with a trial which is predominantly being conducted in Irish who do not have a sufficient proficiency in Irish to be able to understand the proceedings fully. While there might be some cases where the need for such translation into English would be limited (assuming that the jury were all sufficiently competent to understand the proceedings in Irish) there will be many cases where a translation into English of all or much of a trial would be necessary in any event. 6.8 That does not, of course, fully take away from the point made by Mr. Ó Maicín which suggests that he is entitled to have a jury which understands his evidence, given in Irish, and any other aspect of the case conducted in Irish, without the benefit of translation. It does, however, follow that it may well be that there would be a significant need for translation into English in any event. The report on the conduct of jury trials in Welsh to which I have referred does emphasise that there may well be persons who have a professed competence to understand a language which is not their native tongue who may, nonetheless, require some comfort from translation in order to be fully happy that they could deal with an important issue such as determining guilt or innocence in a significant criminal trial. In addition, so far as the risk of mistranslation in this case is concerned, there is the added comfort that it has been determined that the trial judge in this case should be competent in Irish so that any material mistranslation would be likely to be identified and corrected. 6.9 Be all that as it may, there was, in reality, no evidence available as to the level of competence, so far as ability in Irish to the extent necessary to fully understand legal proceedings is concerned, of any particular percentage of persons in Gaeltacht areas. Just how many of the two-thirds of the population in the wider Gaeltacht area, identified in the evidence, who are recorded as speaking Irish on a daily basis, might have sufficient competence that one could be confident that they would not encounter any material difficulty in understanding all aspects of the case in Irish, is, therefore, impossible to tell. I would, however, like O'Hanlon J. in MacCárthaigh, have to infer that it is unlikely that there would not be some material number of persons who would not have sufficient competence even though they are quite properly recorded as speaking Irish on a daily basis. 6.10 Finally, it is important to note that there is a legitimate basis for ensuring that jury areas are not too narrowly drawn from the perspective of their size and population. First, if a jury area is overly narrowly drawn it runs the risk of creating a jury panel which is not, in reality, representative. Second, and perhaps of equal importance, an overly narrow jury area runs the very real risk that a high proportion of persons from it may be excluded from any particular jury because of a connection with the events giving rise to the trial or parties or witnesses likely to be involved. It seems to me to follow that a constitutionally compliant jury panel must be based on a sufficiently large geographical area containing a sufficiently wide population so as to ensure that any panel selected from that area is both reasonably representative and unlikely to suffer significant exclusion on the basis of a connection with the case. There will always be persons who, if selected for a jury panel, would be excluded from any individual case on the basis of such a connection. On average the number of persons so excluded will, taking one case with the next, be much the same. However, if the jury area is drawn over-narrowly, then the percentage of persons so excluded will represent a much greater infringement on the broad representative character of the jury panel as a whole. One hundred people excluded by connection from an overall potential jury panel of (say) 30,000 is neither here nor there. A similar group excluded from a potential jury panel of 500 or even 1,000 would be a different thing altogether. It follows that a constitutionally compliant jury must be drawn from a sufficiently large area and population to avoid the risk of excessive exclusion by connection. It seems to me to follow that the Oireachtas must have some reasonable discretion in determining (or authorising the Minister to determine) the minimum size of area which would not be likely to give rise to problems of that type. 6.11 On that basis I am not persuaded that it has been established that it would be possible to provide for a jury area based only on those district electoral divisions which have the highest level of competence in Irish. At the wider level the maximum number of persons who seem to speak Irish on a daily basis appears to be of the order of two-thirds, but there is every reason to believe, for the reasons already analysed, that the number who would be competent to deal with a jury trial in all its facets without any assistance might well be somewhat lower and possibly materially lower. 6.12 It, therefore, must be concluded that any jury area which could realistically be created, even if based on the Gaeltacht, would be likely to include quite a significant number of persons (certainly one-third and possibly quite a bit more) who would not be competent to sit on a jury which was required to hear evidence in Irish without the assistance of a translator. It follows that, in order to afford Mr. Ó Maicín the jury which he asserts is his entitlement, it would be necessary to adopt a mechanism designed to exclude the significant number of persons who would not have such competence. The net question seems to me to come down to whether such an exclusion is constitutionally permissible. It might be suggested that, if the ad hoc method designed to exclude persons who are insufficiently competent in English from sitting on juries in English speaking areas is acceptable, a similar ad hoc basis for excluding those without sufficient competence in Irish would likewise be acceptable. On that basis it might be suggested that this case can be distinguished from MacCárthaigh by reason of the availability of a potential Gaeltacht area with a relatively high number of Irish speakers capable of understanding and conducting a jury trial in Irish without assistance and the exclusion, on a similar ad hoc basis to that operating elsewhere in the country in respect of those who cannot speak English, of those not so competent. 6.13 It seems clear that such a course of action could be carried out. A broad Gaeltacht jury district could be created. Practical measures could be put in place to ensure that those not sufficiently competent in Irish would not be actually selected to sit on a jury. But the real question is as to whether a jury so selected would be constitutionally compliant and whether, in balancing Mr. Ó Maicín's language rights with the constitutional imperative for representative juries, such a course of action is constitutionally mandated. I have come to the view that it is not. 6.14 The test is, as Henchy J. pointed out in de Búrca, as to whether any exclusion "will leave untapped a reservoir of potential jurors without whom the jurors' lists will lack constitutional completeness". It seems unlikely that the exclusion of a very small number of persons who are otherwise qualified to sit on a jury but who lack competence in English would breach that test. A time may come when there is such widespread use and understanding of Irish in a sufficiently wide geographical area that it could be said that the exclusion of a very small number of persons who did not share that competence in Irish would, likewise, fail to meet that test. However, it does not seem to me that the evidence establishes that that time has yet come. What is proposed must, for the reasons which I have sought to analyse, involve the exclusion of a significant class or group (those without sufficient high competence in Irish) such as would leave any jury selected unrepresentative. That situation stems from the fact that Irish is not, at present, a language which is used on the sort of wide basis so that the sort of exclusion that would be required to empanel a sufficiently competent jury would be marginal and could not be said to lead to a breach of the important constitutional imperative that the jury be representative. If the underlying factual situation were to change then the result might well be different, for in those circumstances the constitutional obligation on the part of the State to do all within its power to promote Irish might well require measures to be put in place to ensure a jury trial in Irish without translation in circumstances where that could be achieved without significant interference with the constitutional imperative for truly representative juries. However, as pointed out earlier, that time has not yet come. 6.15 I would make one final point of distinction which is between Mr. Ó Maicin and a person whose native language is neither Irish or English and who does not have sufficient competence in either of those languages. Such a latter person has, as an incidence of their right to a fair trial, an entitlement to such translation services as may be necessary to allow them to fully participate in a trial. However were such a person to be sufficiently competent in the language of the trial no right to translation would exist for the person concerned would have a fair trial without translation. However Mr. Ó Maicin’s position is different. His right to conduct his case in Irish is not dependent on whether he could also conduct the case in English. 7. Conclusions 7.2 In current conditions, and even in Gaeltacht areas, it does not seem to me that it has been established that it would be possible to empanel a jury with sufficient competence in Irish to conduct an important criminal trial without the assistance of a translator without, at the same time, excluding quite a significant number of persons, otherwise qualified, from the entitlement to sit on the jury in question. For as long as those conditions continue to exist it follows that conferring on Mr. Ó Maicín the rights which he asserts would necessarily result in a constitutionally impermissible exclusion of a significant number of persons from the jury panel so as to render a jury thus empanelled in breach of the constitutional requirement of representativeness. If the underlying conditions were to change then, of course, the balance between Mr. Ó Maicín's language rights and that constitutional imperative might also change. However, for the present I am not satisfied that Mr. Ó Maicín is entitled to the type of jury which he seeks. 7.3 It follows that in my view the trial judge was correct and that the appeal must, therefore, be dismissed. 3. The appellant contends in these proceedings that he is entitled by virtue of his rights under Article 8 of the Constitution to present his defence to these charges in Irish and to have his case heard by a jury, all of whose members are sufficiently competent in the Irish language and indeed also English (a bilingual jury) to be able to hear and fully understand the evidence, the submissions and presumably the judges’ charge all given in the Irish language without the assistance of a translator. 4. The relevant facts and background to the case are fully set out in the judgments of my learned colleagues especially in the judgment of Hardiman J. and it is unnecessary for me to repeat all of that material here. 5. This case is the latest in what is now a long and voluminous line of cases concerning the rights of persons who wish to use the Irish language in the transaction of their business with the State and who demand that the State respond to them in the Irish language. These rights derive from Article 8 of the Constitution which is in broadly similar terms to a similar provision in Article 4 of the Constitution of Saorstát Éireann. Article 8 reads as follows:-
(2) The English language is recognised as a second official language. (3) Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.” 7. There has been much judicial consideration of the extent of the duty or obligation imposed upon the State in respect of the Irish language and the corresponding rights of the citizen who wish to use the Irish language. The leading judicial statements in this regard are those of Kennedy C.J. in O’Foghludha v. McClean [1934] I.R. 469; and Hardiman J. in Ó Beoláin v. Fahy [2001] 2 IR 279. In the former of these cases, the following passage from the judgment of Kennedy C.J. describes in surprisingly strong language, the extent of the obligation and duty resting on the State, at p. 483:-
10. Thus, it can be said that the imperative force of the obligation of the State described by Kennedy C.J. as emanating from Article 4 of the Constitution of Saorstát Éireann is repeated with added emphasis in the language used in Bunreacht na hÉireann. 11. In Ó Beoláin v. Fahy, Hardiman J. said the following:-
13. Impediments which might justify the State in not providing for the use of Irish cannot be mere impracticalities. A choice by the State to withhold provision for the use of Irish on the grounds of administrative difficulty or impracticality would not suffice and would be in breach of the obligation of the State under Article 8 of the Constitution and would correspondingly risk breaching the rights of a citizen who chose to use the Irish language in his or her dealings with the State. I am of opinion that the standard or test to be applied where the State seeks to avoid provision for the use of Irish is one of non-feasibility or in other words that it is simply not possible in the given circumstances to make provision for the use of Irish as sought by a citizen. 14. It was submitted by the respondents that if the appellant’s proposed solution, namely the creation of a jury district to correspond with the selected electoral divisions west of Spiddal in Connemara were to be implemented, that would create the anomalous situation whereby rights derived from Article 8 of the Constitution would have a materially or substantially different effect or application depending upon what part of the country a citizen sought to exercise those rights. Thus, in Dublin or indeed many other parts of the country pursuant to the authority of MacCárthaigh v. Éire [1999] I.R. 200, a person charged with criminal offences triable by jury would not be entitled to a jury, all of whose members were competent in Irish, but a person charged with the same offences, where the jury was to be selected from the appellant’s proposed jury district, would have a right to an all Irish speaking jury. 15. As a general proposition it can safely be said that rights derived from the Constitution, unless the Constitution itself expressly provides to the contrary, are the same throughout the jurisdiction in which the Constitution and the law have effect. Article 8.3 does make provision for the exclusive use of either official language in different parts of the country or for different purposes or both. A law enacted under the aegis of this provision could have the effect of limiting or indeed denying in the circumstances provided for, the right under Article 8(1) or (2) to the use of either official language in the part of the country prescribed or for the purposes as set out in any such legislation. No such legislation has ever been enacted and therefore Article 8.3 has no application to this case. Indeed, it could be observed that the demand by the appellant in this case for a bilingual jury is fundamentally different to what is envisaged in Article 8.3, namely providing for the exclusive use of either official language. 16. I do not see that what is sought by the appellant postulates a difference in the nature and content of the rights which the citizen enjoys under Article 8. Rather, it seems to me that any difference of treatment in different parts of the country is to be seen as deriving from the obligation of the State as described by Kennedy C.J. in the O’Foghludha case, “to do everything within its sphere of action” to make provision for the use of the national and first official language. Having regard to the fact that the usage of the Irish language, in the life of the community is quite different in different parts of the country, it necessarily follows that what the State may be expected to do in the discharge of its duty will vary according to the circumstances prevailing in different parts of the country. The setting up of Gaeltacht areas as provided for by statute, where Irish was to a greater or lesser extent the spoken language of the community is an example of the discharge of that duty. It was to be expected that in the provision of the myriad services by the State in areas, particularly Gaeltacht areas, where a very large part of the community use Irish as their daily language, that the personnel providing the services on behalf of the State would do so through the medium of Irish, as is in fact the case. Could it reasonably be suggested that the lanquage requirements of citizens of the Fior- Gaeltacht in Connemara, were to be dealt with on the same basis as the citizens of South Co. Dublin. In my view, it is beyond argument, that in the discharge of its duty under Article 8, the State is obliged to respond to the linguistic requirements to of its citizens, in different parts of the country, in different ways, and where a substantial part of the community use Irish as their daily language it necessarily follows that the State must respond accordingly and is obliged to provide services in those areas through the medium of Irish. In other parts of the country where there is very little use of the Irish language, it would be pointless and indeed artificial for there to be a similar obligation or duty. 17. If it were to be the case that the obligation of the State under Article 8 and the corresponding rights of the citizen were to be the same throughout the jurisdiction of the State, that would have the wholly unintended consequence of reducing the obligation of the State and correspondingly the rights of the citizen to a standard commensurate with the lowest level of use of Irish in any part of the State. This clearly would have the effect of emptying Article 8 of all of its meaning and substance and manifestly would be the direct opposite of the description of the duties and obligation of the State as contained in the crystal clear words of Kennedy C.J. in the O’Foghludha case. 18. On this aspect of the case, namely the extent of the obligation or duty resting upon the State to make provision for the use of Irish where a citizen demands this, I am essentially in agreement with the judgment of Hardiman J. 19. The appellant’s case is that a jury, all of whose members are sufficiently competent in the Irish language can be provided in this case, if that jury is selected from a jury district, the boundaries of which are redrawn so as to confine that jury district to a portion of the Gaeltacht stretching from west of the village of Spiddal, Co. Galway into Connemara. Such a jury district, confined to a selected number of electoral divisions in which the use of Irish as the daily language of the community is very high, namely in excess of 85% of the population, would, the appellant contends yield a jury, randomly selected, which would be broadly or fairly representative of the community as a whole and would be in accordance with the principles as set out by the Supreme Court in the cases of de Búrca v. Attorney General [1976] I.R. 38 and the State (Byrne) v. Frawley [1978] I.R. 326, as the necessary basis for a jury which is a fair representation of the community as a whole, as required by Article 38 of the Constitution. 20. The respondents resist the relief claimed by the plaintiff on the basis that it would be an impermissible interference by the courts in the exercise of a discretion by the third named respondent, I would reject that submission on the basis that what is at stake here is the vindication of a constitutional right and if the redrawing of a jury district boundary was the only means of vindicating that right, I would have no hesitation in concluding that the Minister’s discretion would have to be exercised so as to vindicate the constitutional right otherwise in jeopardy. 21. In support of their submission in this regard, the respondents rely upon the case of the State (Sheehan) v. Government of Ireland [1987] I.R. 550. In my view, this case is to be distinguished for two reasons. Firstly, the question for determination in the Sheehan case turned on an issue of statutory interpretation and in that respect, the court construed the relevant section of the Civil Liability Act 1961, as giving the Minister in that case an unfettered discretion as to when to commence the provision of the Civil Liability Act, abolishing the exclusion of liability of local authorities on the basis of the nonfeasance rule. There is no issue of statutory interpretation involved in this case. Secondly, in the Sheehan case there were no constitutional rights involved, which the State had a duty to vindicate, unlike this case. I am in agreement with the judgments of Hardiman J., Clarke J. and MacMenamin J. on this aspect of the case. 22. The appellant’s case in this regard is based upon the evidence on affidavit of Conchúr Ó Giollagáin, a university lecturer who holds a doctorate in modern Irish from University College Dublin and is an expert and lecturer in Sociolinguistics and in language planning in NUI Galway. 23. The affidavit is a short one and as it succinctly expresses the evidential basis of the appellant’s case, I quote it in full:-
3. As is clear from that study there are communities in Co. Galway in which there are a high number of people, of both genders in every class, who speak Irish on a daily basis in district A and this is the case for more than 67% of the community. In the case of Co. Galway, District A stretches from east of the village of An Spidéal to An Caiseal in western Connemara in some of the electoral divisions where more than 90% of the community are daily speakers of Irish. District A has a population of 13,444. 4. From an ability prospective (rather an usage) the percentage of Irish speakers in District A is even higher i.e. more than 85% and more than 90% in some parts. 5. The district in question includes two villages, i.e. An Spidéal and An Cheathrua along with rural areas. A diverse, multi-class, multi-prospective community live there, including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fisherman, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and unemployed people. 6. If twelve people were chosen randomly from the district, from the list of voters for example, more than 85% of them would be able to understand evidence given in Irish or in English during a trial without the assistance of an interpreter and I believe that twelve people chosen as such would be as representative of the district in question as twelve people chosen randomly from the votes of any district in the country who would understand evidence in English.”
refer to electoral divisions where more than 67% of the total population (3 years+) are daily speakers of Irish. These electoral divisions evidence the broadest spectrum of Irish language use and exhibit stable levels of Irish language use except in the language behaviour patterns of the younger age groups.” 26. This leads me to infer that as a matter of probability in these selected electoral divisions, the pool of Irish speakers that would be available for jury service would be less than 80% of the full community available for jury service. 27. Certain consequence inevitably flows from this. Firstly, a jury randomly selected from these electoral divisions would, as a matter of high probability, have at least one member who is not competent in the use of the Irish language and would therefore require the assistance of a translator. This of itself would defeat the objective sought to be achieved by creating a jury district confined to the electoral divisions mentioned. Thus the remedy proposed by the appellant would be ineffective in achieving the desired result. 28. In order to get twelve jurors out of this pool, who are fully bilingual or at the very least fully competent in Irish, it would be necessary to adopt some kind of procedure to exclude those who lack competence in Irish. The Juries Act 1976, makes no express provision for such an exclusionary procedure. In his judgment, Hardiman J. refers to the consultation paper on juries service prepared by the Law Reform Commission (LRC CP61-2010) where the following passage appears at pp. 112 – 113:-
30. It is apparent that there is no express provision for such a procedure in the Juries Act 1976. It would seem to me that a s. 9(2) of the Juries Act would provide an adequate legal basis for such a practice, assuming that its terms were complied with. It reads as follows:-
32. If such a practice can operate lawfully to exclude persons who lack competence in English from serving on a jury could it not also be lawfully used to excuse persons who lack competence in Irish in the appellant’s case, to ensure that all twelve jurors were competent in Irish? In the case of the exclusion of persons who lack competence in English it would be extremely unlikely that the numbers of such exclusions in the context of the overall jury pool, would significantly or at all, affect the cross community character of the jury pool. It is very likely that notwithstanding such exclusions the jury pool would still be a fair representation of the entire community and therefore there would be no breach of the representational standard required by Article 38 of the Constitution. 33. On the other hand, the exclusion of 20% approximately, of the potential jury pool on the basis of inability to speak or understand Irish would indeed involve the exclusion of a large segment of the community i.e. those who did not speak Irish and would, in my opinion, be a breach of the cross community representation principle enjoined by Article 38. Thus, it would not, in my opinion, to be lawful to use s. 9(2) of the Juries Act for that purpose. 34. In passing I should say that the necessity for the Tribunal of Fact to be competent in the language used in the trial, is not just a “language rights” requirement but is a necessary incident of a fair trial demanded by Article 38 and an essential ingredient of the right of an accused person to a fair trial. It follows, in my view, that the Juries Act 1976, must be construed consistent with the foregoing and the absence of any express provision in the Act providing for exclusion on the basis of an linguistic inability, does not prevent other provisions of the Act where appropriate, for example, s. 9(2), being used for that purpose. 35. Perhaps, because of the homogeneity of the Irish community in 1976, it was unnecessary to make express provision for this kind of exclusion. It may also have been considered so axiomatic, that exclusions on the basis of inability to speak the language of the trial were so obviously necessary and appropriate as perhaps to require no express statutory provision. 36. In short, therefore, I am of opinion that the remedy of creating a jury district as contended for by the appellant would be either ineffective to provide twelve Irish speaking jurors without the exclusion of non-Irish speaking jurors, and such exclusion having regard to the large portion of the jury pool to be excluded, would breach the constitutional requirement for a jury representative of the community. Therefore, it is not feasible in this instance for the State to provide the appellant with a jury all of whose members are sufficiently competent in the Irish language as to be able to try the case without the assistance of a translator. 37. It is to be noted and in this respect I agree with what is said by Clarke J. in his judgment, in that if one reduces the jury pool to the size contended for by the appellant, it is inevitable that within this very small jury district many people would have personal connections to either the appellant or the victim of the alleged assault or with witnesses in the case and could not serve as jurors. In all jury trials, in the jury selection process, it is commonplace for persons to be excused because of their personal connections to people involved in the case. Where you have all of the electors in a county available to draw from, the problem of personal connections has little or no significance in the process of jury selection. However, in the jury district as contended for by the appellant, these problems would undoubtedly loom large and could pose a very serious practical problem in assembling a jury. In this respect, I agree with what is said by Clarke J. in his judgment. It is a further factor weighing against the relief claimed by the appellant. 38. For all of the reasons set out above, I have come to the conclusion that the appellant has failed to demonstrate that it is feasible for the State in the circumstances of this case to make provision for a jury all of whose members are competent in the use of Irish. Accordingly, I am satisfied that this case, cannot be distinguished from McCarthy v. Éire and therefore I would disallow the appeal.
The status of the Irish language (1). Ireland became a State independent of Great Britain in 1922. Immediately upon the achievement of independence, in the first Constitution adopted in the same year, the new State adopted the Irish language as its principal official language. This was expressed in the following words:
“The name of the State is Éire, or, in the English language, Ireland.” Article 5 “Ireland is a sovereign independent democratic State”.
8(2) “The English language is recognised as a Second Official Language. 8(3) Provision may, however, be made by law for the exclusive use of either of the said language for any one or more official purposes, either throughout the State or in any part thereof”. The question of Irish in European Law and of Public Policy on Irish in Ireland and Europe are dealt with in Appendix II. A number of very important aspects of this Action are, as lawyers say, “common case”. That is, they are agreed by both sides. It will help in understanding what follows to set out some of these agreed features now, even though it will be necessary to return later to explore the full legal and constitutional significance of them.
(2) By Article 8 of the Constitution, Irish is the national and first official language of Ireland. English is recognised as “a second official language”. (3) Certain areas of the country are designated as “Gaeltacht”. This word derives from the Irish word Gaeilge, the Irish language. A Gaeltacht is an area especially designated for the use and preservation of the Irish language. The legal nature of a Gaeltacht in statute law is extensively discussed below. (4) The offences with which Mr. Ó Maicín, the appellant in the present case, is charged were allegedly committed by him in the Connemara Gaeltacht, an extensive area west of the City of Galway which is the largest and most populous Gaeltacht area in the State. Mr. Ó Maicín was reared and educated in that area. He is a native Irish speaker, that is a person who has spoken Irish since he has been able to speak at all, and who mastered English only much later in life. The offences are in the nature of assaults and the alleged victim is also a gaelgóir. (5) In terms of Irish law, the offences charged are “non-minor” ones. As the defendant is pleading not guilty to these charges, they require to be tried before a judge sitting with a jury. See Article 38 of the Constitution. (6) This latter point provides the basis of the State’s defence in the present case. It is not disputed that the Connemara Gaeltacht could be made into a jury district by ministerial order under the Juries Act 1976, or that such a district could produce a properly representative jury able to understand an Irish speaker directly, without an interpreter. (7) It is equally undisputed, however, that no such ministerial order has been made. Amongst the reliefs sought by the appellant is an order directing the Minister to bring such a jury district into being. The State say, however, that this is beyond the power of the Court. (8) The indictable offences with which the appellant is charged will be tried in the Circuit Criminal Court for the relevant Circuit, here the Western Circuit. The case has already been before the Circuit Criminal Court, consisting of a judge alone, for preliminary applications. An elaborate application as to the language of the case has already been heard in that Court, and this is described in some detail below. On that occasion, the prosecution expressed itself in English and the defence in Irish. There was an interpreter who translated what was said in Irish into English. It is un-contradicted that there were many deficiencies in the interpretation on that occasion. An interpreter was thought necessary for the hearing of that application, even in the absence of a jury. (9) It transpired on the hearing of this appeal that there are no legislative provisions requiring a person summoned to serve as a juror to have, or to demonstrate, competence in either of the official languages of the State. That is, there is no express statutory requirement that a juror in, for example, Dublin, summoned to hear a case where all the evidence and argument will be in English, should be competent to understand English. Likewise, there is no express statutory requirement that a juror in a case where one or both parties intend to express themselves in Irish, should be able to speak or understand Irish. But its relevance to the present case is that it has been stated by the Law Reform Commission that potential jurors in English speaking areas who, it is suspected, cannot understand sufficient English to do their duty properly are identified and filtered out by County Registrars and Court Service staff. This is done informally, without a specific legal mandate.
I wish to make it quite clear that I do not accept that a jury can lawfully include, or be composed of, persons unable to understand the lawful language of the case which the jury is to try. In Ireland, such lawful language can only be Irish or English. The guarantee contained in Article 38.5 of the Constitution is that:
It would be ludicrous to imagine a judge presiding over and giving judgment in a trial conducted in a language which he could not understand. Equally, it is ludicrous to imagine a jury trying the factual issues, which are established by the evidence of witnesses, in a language which they cannot understand. The following aspects of trial by jury in Ireland appear to me to be self evident:
(2) The Judge at any such trial must be able to understand the language of the case, being one or other of the two languages mentioned at the preceding paragraph. (3) The jury, which is to try all issues of fact in the case and resolve conflicts in the evidence of witnesses, must be able to understand the language of the case as defined above. (4) A trial conducted before a judge, a panel of judges, or a jury, as the case may be, all or some of whom do not understand the language of the case, cannot be described as a trial “in due course of law” as required by Article 38.1 of the Constitution. (5) Where the defendant in a criminal trial is incapable of understanding and expressing himself in either of the official languages of the State the proceedings must of necessity be translated to him by a duly qualified interpreter. But, for the reasons set out later in this judgment and relating to the standing of the two official languages of the State, a person charged before a court by the statutory public prosecutor is entitled to have the proceedings held in whichever of the official languages he chooses. ___________________________________________________________ For the reasons set out below, the effect of Article 8 of the Constitution is to establish Ireland as a bilingual State in terms of the Constitution and the laws. It is a historical truism that official Ireland has always been reluctant to behave as if the State were indeed, in law and in practice as well as in constitutional theory, a bilingual State. But that does not take from the fact that Ireland is, by its Constitution, a bilingual State. The Judges, of course, are bound to uphold the Constitution. Canada is the prime example of a country, whose majority language is English, and which is in terms of its Constitution and laws a bilingual State. Unlike Ireland, however, the bilingual status of Canada has been treated seriously, not merely in law but in practice as well. Particularly since the adoption of the Canadian Charter of Rights in 1982, Canada is a country very comparable to Ireland in legal terms and the decisions of its courts are increasingly cited to us by litigants including the Irish State itself. See, for example, C.C. v. Ireland [2008] 4 LRI. It is, therefore, more than interesting to consider the remarkable efforts of the Canadian State to be bilingual in practice as well as in theory even in parts of the country where there are very few, or virtually no, French speakers. Because, of course, this case must be decided in terms of the Irish Constitution and Laws, the Canadian citations are not directly relevant, and could not be more than persuasive. For these reasons I have, in the main, relegated the general account of legally and constitutionally mandated bilingualism in Canada to an Appendix. If nothing else, it gives the lie to any suggestion that the convening of an Irish speaking judge would be “impossible”. Although the plaintiff/appellant’s case has been put in a number of independent ways, set out below, it is fundamentally a case about his language rights. The plaintiff is an Irish citizen, a native speaker of the Irish language and a person who was reared and educated in a Gaeltacht. He is presently charged with two serious criminal offences, committed, it is alleged, in the Gaeltacht and against another Irish speaking resident of that area. The question is, whether the plaintiff entitled to defend himself in those criminal proceedings in his native language and before a tribunal which will understand him directly, without the interposition of an interpreter.
The question raised by this case is as to whether a native speaker of Irish, who has been charged by the Public Prosecutor with serious criminal offences allegedly committed in the Gaeltacht where he was raised, is entitled only to the same language rights before the Irish Courts as are granted to a speaker of Chinese or a Nigerian language, to instance some languages at random. Or is he, as he maintains, entitled to use his native tongue, which is the national and first official language in defending himself before a tribunal who will understand him directly in that language, in a trial in an Irish Court established under the Constitution of Ireland? The incomer, of course, has well-entrenched rights to fair procedure and to equal treatment, guaranteed in both Irish and European law. But the appellant has, in addition, the language rights flowing from Article 8. This case is about whether these rights have any real meaning. The Irish language in the Constitution. This Constitution provides at Article 4 that:
(2) The English language is recognised as a second official language. (3) Provision may, however, be made by law for the exclusive use of either of the said languages, for any one or more official purposes, either throughout the State or in any part thereof”. This Article, and its very similar predecessor, Article 4 of the 1922 Constitution which is set out above, has been the subject of judicial interpretation now for more than eighty years. It is sufficient for present purposes to quote two extracts from that large body of jurisprudence, one from a case towards the beginning, and one for a case towards the end, of that period. In Ó Foghludha v. McLean [1934] IR 469, Kennedy C.J. said:
Ireland has thus been constituted as a country with two official languages, the national and first official language and a second official language. It is thus legally constituted as a bilingual country. This was done, firstly in 1922 and secondly in 1937. In each case, the language provisions of the successive Constitutions of an independent Ireland represented an enormous change from the position which obtained under British Rule, prior to 1922. In an important language case under the old regime the proposition that Ireland was a bilingual country was absolutely negatived in strong terms by the Irish courts. I consider that it is important for the understanding of the constitutional provision to consider its historical background, and it may be instructive in other ways as well. This important background to the Constitution is set out in Appendix III.
Mr. Ó Maicín is now before the Galway Circuit Criminal Court charged as follows:
and (2) on the 28th May, 2008 at Beal An Daingean, Liter Móir, Galway within the said District Court area of Doire An Fhéich, District No. 7 he did while committing an assault on Martin Whelan in the course of a fight produce in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, towit, a broken whiskey bottle, contrary to s.11 Firearms and Offensive Weapons Act, 1990.” The place where the prosecution alleges these offences took place is in the heart of the Connemara Gaeltacht and is in the County of Galway. There is no dispute that it is a “Fíor Gaeltacht” (true or real Gaeltacht). The plaintiff’s case. The Authorities also, quite independently, say that the decided cases on trial by jury have established that a jury must be selected by a random process and the legislation governing this process does not permit of the application of any test, whether based on the possession of property, or the attainment of any particular educational standard, or linguistic competence, whether in English or in any other language. The State concede that it would be possible, under the existing statutory provisions, to constitute a jury district, in the large Gaeltacht area where this offence allegedly took place, which would be as capable of providing a jury competent in the Irish language as the present jury districts are to produce juries competent in the English language. But, they say, the power to do so is vested in the absolute discretion of the Minister for Justice and he has not thought fit to do so. He cannot, or should not, be compelled to exercise this power in any particular way, say the State defendants. That is the case of the Authorities as it was argued in the written and oral submissions on this Appeal. It is important, having regard to subsequent developments, to note that there was no attempt by the State authorities to argue that the Court should depart from the interpretation of Article 8 of the Constitution to be found in the decided cases from Ó Foghluadha to Ó Beoláin. Specifically there was no attempt to argue that that Article merely required to state to “seek to encourage the use of the Irish language” or to argue for any other such vague and purely aspirational reading. The Gaeltacht in Law.
Section 2 stated as follows:
(2) The government may from time to time by order determine to be Gaeltacht specified areas, being substantially Irish-speaking areas and areas contiguous thereto which, in the opinion of the Government, ought to be included in the Gaeltacht with a view to preserving and extending the use of Irish as vernacular language.” The electoral divisions which constitute the Connemara Gaeltacht are set out in Appendix V. The list is taken from the Schedule to the Statutory Instrument referred to above.
Even when these Sections are commenced, the status quo ante will be preserved by s.7 of the 2012 Act which provides as follows:
___________________________________________________________ Over and above that, he says that he will be at a disadvantage if he has to make his case through an interpreter for the benefit of the members of a jury who would or might not understand Irish, instead of talking to jury directly in his native language. The appellant agrees that he will permitted to make his case in his own language but says that, by reason of the refusal to him of a jury who can understand Irish he will not merely be at an actual disadvantage but will be “treated as a foreigner in his own country rather than as a person who speaks the first official language of the State”. The prosecutor, the Director of Public Prosecutions, has not said in which of the official languages the prosecution case will be conducted. The applicant says, however, that on all occasions to date when the prosecution were represented before the trial Court their representatives spoke in English. On the hearing of the application in the trial Court in relation to the applicant’s language rights, which is about to be described, the prosecution case was conducted in English and the defence case in Irish. The application was heard by His Honour Judge Groarke (as he then was; now The Honourable Mr. Justice Groarke, President of the Circuit Court), with the assistance of an interpreter. The applicant says, without contradiction, that the standard of interpretation on that occasion was very poor and that defence counsel (who is bilingual) frequently had to assist the interpreter. He says that if this standard of interpretation is replicated at the trial his case will be poorly interpreted to the jury and that he will be greatly disadvantaged and will not be treated fairly. Application to the Circuit Court.
For our client to receive a fair and just trial in comparison to those who are satisfied with using English for this purpose, it is necessary, in all cases, that the prosecutor has a knowledge of the Irish language and that the prosecution is conducted against him in Irish with, of course, permission granted to each witness to give evidence in whatever language they wish: in Irish or in English or in another language should they not have sufficient Irish or English.” The Director of Public Prosecutions stated in the Circuit Criminal Court on the 29th May 2009 that he was prepared to supply the defendant with a Book of Evidence in the Irish language. The applicant then proceeded to apply to the Circuit Court for:
(2) An official translation of the Rules of Court. After the hearing of this application the learned Circuit Court Judge stated that the trial would be heard before a bi-lingual judge and that the evidence would be recorded in the language in which it was given, but he refused the application for a bi-lingual jury. He did so on the basis that in order to provide such a jury it would be necessary to launch an investigation to ascertain that individual members of the jury panel were in fact bi-lingual and that such investigation was not permitted. In ordering that the judge who would preside at the trial would be able to speak Irish Judge Groarke said he did so because interpretation “can be weak” and in order that the rights of the accused were vindicated, in that “every idiom and expression can be understood”. The learned Circuit judge also said that there was no danger that the applicant would not receive a fair trial and went on to say that since all the evidence in court is recorded electronically the evidence would be recorded in whatever language it was given. It appears that the complainant in this case, the alleged injured party, is also a person from the Gaeltacht and an Irish speaker. Judicial Review.
(2) A declaration that the appellant is entitled to be tried before a bilingual jury who would understand evidence given in Irish and in English without the assistance of an interpreter. (3) An order of certiorari quashing the decision of His Honour Judge Groarke [whose contents is set out above]. (4) An order directing the Minister to take all necessary and/or convenient steps to ensure and facilitate a trial before a bilingual jury for the applicant, including specifying a new jury area in County Galway pursuant to s.5 of the Juries Act, 1976 and/or creating a new jury summons pursuant to s.12 of that Act. (5) A declaration that the first second and third respondents have a constitutional obligation to provide an official translation in the first official language of the current Circuit Court Rules (S.I. No. 510 of 2001) along with their amendments, together with the amendments to order 86 of the Rules of the Superior Courts; the Rules of the Court of Criminal Appeal and are obliged to issue and provide each one of these for the general public including the applicant on terms no less advantageous than the terms under which the official English language was and is issued and provided. (6) An Order of Mandamus directing the first and second respondents and/or the third respondent to issue and provide an official translation in the first official language of the current Circuit Court Rules along with their amendments [and the other documents mentioned above]. (7) A stay preventing the Director from proceeding with the case against the appellant until the conclusion of the judicial review proceedings. Article 8 of the Constitution provides as follows:
(2) The English language is recognised as a second official language. (3) Provision may however be made by law for the exclusive use of either of the said languages, for any one or more official purposes, either throughout the State or in any part thereof.” Prior to the adoption of the present Constitution, Article 4 of the Saorstát Constitution provided:
But whatever the reason for the inclusion of these provisions may be, it is clear that it is open to Dáil Eireann to enact, and the Government to propose, that one only of the official languages be used either throughout the State or in any part of the State. This has never been done. It appears to me, however, that only by a law of the kind envisaged in Article 8.3. can a person be debarred from the use of the Irish language, as a language in which he can speak and be understood, in a procedure as solemn, as quintessentially official, and as central to the nature of the State itself, as a trial before a jury in a court established under the Constitution, in respect of an offence alleged against a Gaelgóir in the Gaeltacht. That is all this case is about. This narrow focus is central to the case.
(4) Where the President signs the text of a bill in one only of the official languages, an official translation shall be issued in the other official language”.
This judgment of Kennedy C.J. appears particularly relevant in what it has to say about the significance of the designation of the Irish language as a National language:
I agree with what was said by Kennedy C.J. and consider portions of it, in particular, to have a direct relevance to the present case. In particular, I believe that the former Chief Justice was correct in stating that the Irish language is the National language not because its use is in fact universal but because it was freely deliberately and expressly adopted as such National Language by the People in two successive Constitutions. No doubt this adoption was made for the reasons summarised by Kennedy C.J. in the passage cited, but it is beyond dispute that Irish was in fact adopted as the National language. Its status as the first official language arises from its status as the National language. This is made perfectly clear in Article 8 of the Constitution by the use of the word “Ós”. This explanatory or reason-giving word indicates that the Irish language is the first official language since, or because, it is the National language. It appears to me to be significant that the language is constitutionally established both as the National and the “First Official Language”. It might have been constituted merely as the “National Language” while providing (as in India) that the business of the National Parliament, and of the Courts of Law, would be conducted in English. But this was not done: the Irish language was constituted as both the National Language and as the First Official Language. At the same time, the English language which was and is the vernacular language of the great majority of the People, was recognised “as a second official language”. The plaintiff appellant in these proceedings is not concerned to restrict the right of English speaking citizens to conduct their business with the State in that language, for instance to defend themselves in court proceedings in English and to be understood directly by the Tribunal of Fact in doing so. Indeed, he proclaims that right. But he equally asserts his right to do those very things in the Irish language and relies in that regard on what was said by this Court in Ó Beoláin v. Fahy to the effect that the Irish language “cannot… be excluded from any part of the public discourse of the Nation or the official business of the State or any of its emanations”.
In this case I have the great misfortune to differ from my colleague Mr. Justice Clarke. A decent regard for the intellect and for the opinions of readers of these judgments makes it necessary to identify the precise basis of the difference. The divergence between my approach and that of Mr. Justice Clarke is only partly to do with the constitutional and legal status of the Irish language. Quite apart from that, and perhaps more fundamentally, it is to do with the techniques and principles applying to the interpretation of the Constitution itself, and of the resolution of constitutional litigation by adjudicating between the contentions of the parties, rather than by imposing a solution for which neither party was concerned to argue. Such resolution must also, of course, take account of the established jurisprudence of this Court, and not proceed as if the matter were res integra. There is in fact a well established body of case law which is clear, positive and specific on the subject of the duties of the State flowing from Article 8 of the Constitution. Neither party has asked this Court to depart from it. It is important to note that the State defendants have met this case in a carefully restricted and confined way. They have not asked for the existing jurisprudence to be set aside; on the contrary, they have adopted it. At para. 25 of their written submissions they say:
It is trite law to observe that “a point not argued is a point not decided”.
I am further and separately concerned that the effect of my colleague’s judgment is to undermine the constitutional and legal bilingualism of the Irish State. I welcome, of course, certain dicta of Mr. Justice Clarke such as his declaration, in para. 3.5 of his judgment:
“That those who wish to conduct their business, particularly with the State, in Irish enjoy certain language rights equally cannot be doubted.”
(b) is done without the Court having been asked to do it by the State respondents and for that reason, I must very diffidently suggest, does it improperly, and (c) is done with insufficient regard to the fact that Article 8.3 expressly permits the legislature to provide “by law” for the exclusive use of one or other of the official languages for any official purposes, either generally or in some part of the State. The vagueness and imprecision of the passage cited above, which refers to “some obligations on the State and certain language rights, is continued in the most substantive portion of Mr. Justice Clarke’s judgment, at para. 3.5:
The reason given by Mr. Justice Clarke’s conclusion quoted above is also stated with very frankly and clearly in the same paragraph:
The implication which Mr. Justice Clarke discovers in the existence of any duty to Irish speakers above the level of “encouragement” of something which would lead to what he terms quasi compulsion is, I suppose, the pons assinorum of his reasoning. I have to confess immediately that it is not a bridge that I can cross. I do not believe for a moment that, in the finding that Mr. Ó Maicín is entitled to be judged by a Tribunal of Fact which can understand him directly in his native language, which is also the national and first official language of his country, there is even the slightest suggestion or implication of a constitutional imperative to quasi compulsion, or any kind of compulsion whatsoever. I must make unambiguously clear my view that this is simply not true in law, in logic, or in the terms of the pleadings and arguments in this case. As I have observed earlier in this judgment:
I have the greatest difficulty in understanding how a right to be heard directly by a constitutional court in the constitutionally recognised national and first official language in any way constitutes, or could be thought to constitute, or imply however remotely, “quasi compulsion”. I repeat, this approach, whereby the State’s obligations are written down to an obligation merely “to encourage” was not contended for or suggested in the submissions of the respondent in this case. Nor did any party suggest that Mr. Ó Maicín claims implied quasi compulsion of any other citizen. A false antithesis.
But despite the statistical insignificance of the point, it seems to me to raise a matter of principle. In my view, in this constitutionally bilingual State, no-one has a right to serve as a judge, or as a member of a panel of judges (as in the Special Criminal Court) or as a juror, in any case the official language of which he or she cannot understand. The need for a judge to be able to understand the language of the case has been dealt with above. That need is no less pronounced in the case of a juror. The oath of a juror requires him or her to swear that:
That is part of what is implied by the constitution of this State as a bilingual State, by Article 8 of the Constitution. If that is impractical, or really cannot be done for reasons of resources, or for any other reason, then the position may be addressed by the Oireachtas, pursuant to Article 8.3. But, absent such action by the Oireachtas, the bilingual nature of the State requires that the Tribunal of Fact understand the evidence as it is given. I believe that in any other State that proposition would be regarded as axiomatic, as it clearly is in Canada, on the basis of the information summarised elsewhere in this judgment. I have already quoted with respectful approval Clarke J.’s statement that:
This formulation and approach appears to me to ignore the fact that the effect of Article 8 is to render Ireland a bilingual country. This means that there must be parity of respect for each language and its users. Mr. Ó Maicín’s right to use the Irish language is in no way affected if the defendant tried before him, or the defendant after him, opts to take his trial in English. Equally, the rights of those English speakers are in no way affected by Mr. Ó Maicín’s opting to take his trial in Irish. As we have seen, both the constitutional composition of the State, and the current policy of the State, is one of bilingualism or as the current policy document calls it “functional bilingualism”. We have represented to the European Union that Irish is in use as a vernacular language in the State. I simply cannot understand how such a representation could be made if it is impossible for a citizen to have a trial in this “vernacular” language in the Courts established by the very Constitution which constitutes the State a bilingual polity. Ireland became a bilingual State not because, as in some countries (Belgium, Canada, India), there were severe conflicts threatening the very existence of the State on the topic of language use, but as a deliberate choice. It was enshrined in the Constitution also as an act of deliberate choice. Once enshrined in the Constitution, the language provisions became part of what the Judges promise “to uphold”. That promise is to “uphold the Constitution”, not to “uphold it as far as may be reasonable in present day conditions, as perceived by them”. If it is thought that it is now simply too difficult to uphold the Constitution in the manner identified by the various cases cited in this judgment, it would be more honest to amend the Constitution or to legislate in the manner permitted by Article 8.3. But neither of these are for the judges to do: action on them must be initiated by one or other of the political organs of government. Stare decisis.
As it happens, Mogul is also authority for the proposition that if an existing case made a particular finding without the point being argued, it is not a binding authority on that point and so does not need to be distinguished or formally departed from:
I wish to reiterate the conclusion of my consideration of the constitutional status of the Irish language in Ó Beoláin v. Fahy, above. At p.340 of the Report it is said:
Dr. Conchúr Ó Giollagáin has sworn an affidavit in support of the appellant’s application which, like the appellant’s own affidavit, is uncontradicted. He is a lecturer in socio-linguistics and language planning in Acadamh na hOllscolaíochta Gaeilge, in National University of Ireland, Galway (NUIG). He holds a doctorate and has published a good deal of research on the use of the Irish language in the Gaeltacht. He was joint author of the Comprehensive Linguistic Study in the use of Irish in the Gaeltacht, which was commissioned by the Department of Community Rural and Gaeltacht Affairs. It appears to me that Dr. Ó Giollagáin is entitled to be regarded as an expert witness. He exhibits the text of his study, and a map attached to it, in his affidavit. The South Connemara Gaeltacht, west of the City of Galway, is the largest of the Gaeltacht areas in the country, being far larger than those in Donegal, Mayo, Kerry, West Cork, West Waterford and Meath. It is in category “A” of his study, meaning that there are “a large number of people, of both genders and every class, who speak Irish on a daily basis”. In areas in category “A”, this exceeds 67% of the community. He says of the category “A” Gaeltacht of County Galway that its geographical extent is from a point east of the village of An Spidéal westward to An Caiseal in West Connemara. In some of the electoral divisions more than 90% are daily speakers of Irish. The figures for competence in Irish are even higher. Between 85 and 90% of the entire community are competent to speak Irish. The district composes both villages and rural areas and, according to Dr. Ó Giollagáin “a diverse, multi-class, multi-perspective community live there including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fishermen, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and un-employed people”. The relevance of this evidence arises from the way in which the case has been met by the State Respondents, as set out below. Summary of foregoing. These features are of central relevance both to the appellant’s claim and to the respondents’ answer. They appear to me to distinguish the case very radically on its facts from that of MacCártaigh v. Eire [1999] 1 IR 186, a case considered in more detail below. Nature of appellant’s claim.
The Constitution does not purport to make Irish the exclusive language of the State. On the contrary it positively recognises the status and use of the English language. But, as between the two it confers a primacy on the Irish language which is the first official language. The Irish word “príomh”, used with another word, has the connotation of conferring on the person or thing of whom it is used a primacy amongst things of the kind, connoted by the other word, thus príomh oide, head teacher, príomh breitheamh, Chief Justice. Article 8 of the Constitution therefore enshrines a policy of bi-lingualism in which the right to use either the National and first official language or the second official language, in any official context is constitutionally enshrined. In that context it is (to use an entirely non-legal term) an oddity that an Irish speaking citizen who has been reared and educated in a part of the country legally recognised as an Irish speaking area should, when haled into court by a compulsory process, by the State itself, be compelled to make his defence of his liberty and his reputation to the Tribunal of Fact through an interpreter, precisely as if he were speaking Romanian, Hungarian or Chinese or Polish, all languages from which the Courts have had to arrange translation in recent times. Significance of Article 8. Firstly, the wording of Article 8 obliges Courts to treat the Irish language as the national and first official language in law and in fact. It is not simply an aspiration, along the lines of the “firm will” to unite the whole population of the island of Ireland, expressed in Article 3. Article 8 is a statement of the existing position in law. This is not a choice made by the Courts: it is imposed by the Constitution. Secondly, Article 8 accords a primacy to the Irish language which is
(b) “the first official language”. Thirdly, Article 8 imposes obligations on the State and the Government. The former, in the words of Chief Justice Kennedy “is bound to do everything within its sphere of action … to establish and maintain [the Irish language] in its status as the National Language”. Equally “None of the organs of State, legislative executive or judicial, may derogate from the pre-eminent status of the Irish language as the National Language of the State without offending against the constitutional provision…”. The prosecution, in courts established under the Constitution, of those accused of crime is one of the quintessential duties of a State as such. Therefore, it must be conducted in one of the official languages and, at least if demanded, in the first official language. For the State to refuse this is for it to derogate from the constitutional status of the Irish language. To establish, by a free and voluntary act of democratic choice, as the national and first official language, a language which is not the vernacular is to impose a positive duty, which is at the same time a burden and an expense, on the State. The State must discharge this duty, just as it expects citizens to observe the law, even when that is difficult, burdensome, or expensive. If it is thought too onerous, a government may invite the People to alter Article 8, or the Oireachtas may legislate as permitted by Article 8.3. The conclusion from all of the material set out so far in this judgment appears to me to be obvious. The Irish People, at the invitation of the Government, have constituted the Irish language the national and first official language of the State. The State and the organs of Government have honoured this only insofar as they have cast the entire burden of promoting the use of the Irish language on successive generations of school children. Apart from that the actions of the State in relation to the Irish language have been uniformly minimalist and grudging. They have opposed in the Courts citizens who attempted to get statutes and statutory instruments which affected them directly in the Irish language. They have struggled against applications by citizens for official forms in the Irish language. They have (to come closer to the facts of this case) instituted an informal screening system to make sure that jurors in Dublin have an adequate command of English, but have solemnly pleaded in the very case that it would be unlawful to operate such a screening system in the interests of producing a jury with an adequate understanding of Irish. This is a radical contradiction in the State case. But, says the State confidently, there is nothing the Court can do about this.
There is a judicial decision to the same effect, R. v. Pooran (2011) ABPC 77. The citation is from the judgment of Brown J. in the Provincial Court of Alberta. Judge Brown had before her a case where applicants were charged with offences under the Traffic Safety Act of Alberta and they wanted their trial conducted in French. That included a French speaking prosecutor, a French speaking judge and entitlement to communicate with a court entirely through French. The prosecutor said that an interpreter would be sufficient to vindicate the defendants’ language rights. Brown J. held:
The Crown Respondent’s assertion that the rights in the Languages Act are met by the provision of an interpreter amounts to a sloughing of the language rights of the litigant to the Charter legal right to due process, natural justice and a fair trial. As to the reference in the June 22, 1988, ministerial statement, to the provision of an interpreter if necessary, I infer from those words that the interpreter is to be provided for witnesses who do not speak the language, English or French, in which the trial is being conducted.” (Emphasis added)
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The State does not deny or seek to qualify or downgrade the status of the Irish language as the National and first official language. Nor does it adopt the view that the consequences of that recognition are trumped by the practical needs of the administration of justice. That view was quite recently advanced by the State in Ó Beoláin v. Fahy, cited above, as appears from p.352 of the Report:
I am firmly of the view that there is no such necessity that one of these rights should yield to the other. In a State in which Irish is the National and first official language, which is committed to a statutorily mandated policy of bilingualism, it is necessary that the laws should be issued and, where requisite, enforced in each of the official languages. In a case such as the present, where there is no question as to the competence and bona fide desire of the citizen to use the National language it is in my view extraordinary to attempt to set up an antithesis between his right to do so and the public right that the law should be enforced. Furthermore, there is no insuperable difficulty in enforcing the law through the medium of the National and first official language and whatever difficulty there may be in this regard arises directly from the inaction of the State over a period of decades in relation to the National language. If these difficulties fall to be addressed in a haphazard and ad hoc fashion, that is because the State has been unwilling to address them in any more coherent way. The modern State necessarily imposes many onerous duties on citizens in relation to various aspects of life from tax compliance to planning law. Many of these duties are irksome, time consuming and expensive to comply with, but compliance is properly required. Equally, the State itself must comply with its obligations, particularly those enshrined in the Constitution and can no more be heard to complain that such compliance is irksome and onerous than can the individual citizen. In particular, the State cannot be heard to complain that its non-compliance over a period of decades have now rendered present compliance even more difficult.” In other words, the State says that it is impossible, in a jury district consisting of the County of Galway, to provide a jury every member of which will be able to understand Irish. It says further that it is legally impossible to impose a test to ensure competence in Irish on the part of potential jurors who are called as members of the jury panel. This is the view which found favour in the High Court. Decision of the High Court.
The power of the Minister for Justice to divide or limit is necessarily geographic. This corresponds to the right of the citizens to be tried by each of the county within which offences are alleged to have been committed [sic]. A jury is selected from the Electoral Register of that jury district. The selection is made by random sampling. The selection cannot be restricted in any way, for example, by way of political affiliation, religious belief, cultural identity or otherwise. To do so would be to interpret the Section beyond its simple meaning. It would follow that a selection by linguistic ability, albeit restricted to the official languages of the State, would not accord with the provisions of Section 5. It would, as well as other discriminants, create a bias and would be unworkable. The system of justice requires juries to be drawn from a common pool of those entitled to vote. Restrictions such as the exclusion of non-ratepayers, which discriminated against women, as was seen in de Burca, moved the basis away from ratepayers to the electorate within the geographical district. The random selection is an integral part of the jury. It would be absurd to say that the basis for jury selection should be otherwise than a random selection of the jury. It would, moreover, be beyond the power of the Court to interfere with the power of the Executive or the Minister in relation to the exercise of his discretion under s.5(2) of the Juries Act. The Court, accordingly, refuses the relief sought.” In light of the evidence in this case, the submissions of the parties, especially the Respondents, and the judgment of the High Court it is necessary now to set out certain statutory provisions:
“5.—(1) Subject to the provisions of this section, each county shall be a jury district and for this purpose the county boroughs of Dublin, Cork, Limerick and Waterford shall be deemed to form part of the counties of Dublin, Cork, Limerick and Waterford respectively. (2) The Minister may by order divide a county into two or more jury districts or limit a jury district to a part or parts of a county. (3) The Minister may by order revoke or vary an order under this section. (4) Every issue that is triable with a jury shall be triable with a jury called from a panel of jurors drawn from the jury district in which the court is sitting.” S.11 of the Juries Act 1976: “11.—Each county registrar, using a procedure of random or other non-discriminatory selection, shall draw up a panel of jurors for each court from the register or registers delivered to him under section 10 (omitting persons whom he knows or believes not to be qualified as jurors).” [Emphasis supplied] S.15(3) of the Juries Act 1976 provides: “(3) Before the selection is begun the judge shall warn the jurors present that they must not serve if they are ineligible or disqualified and as to the penalty under section 36 for doing so; and he shall invite any person who knows that he is not qualified to serve or who is in doubt as to whether he is qualified or who may have an interest in or connection with the case or the parties to communicate the fact to the judge (either orally or otherwise as the judge may direct or authorise) if he is selected on the ballot.”
A person who because of insufficient capacity to read, deafness, or other permanent infirmity is unfit to serve on a jury.” (Emphasis added) ___________________________________________________________ S.8 of the Official Languages Act 2003: “8.—(1) A person may use either of the official languages in, or in any pleading in or document issuing from, any court. (2) Every court has, in any proceedings before it, the duty to ensure that any person appearing in or giving evidence before it may be heard in the official language of his or her choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language. (3) For the purposes of ensuring that no person is placed at a disadvantage as aforesaid, the court may cause such facilities to be made available, as it considers appropriate, for the simultaneous or consecutive interpretation of proceedings from one official language into the other. (4) Where the State or a public body is a party to civil proceedings before a court— (a) the State or the public body shall use in the proceedings, the official language chosen by the other party, and (b) if two or more persons (other than the State or a public body) are party to the proceedings and they fail to choose or agree on the official language to be used in the proceedings, the State or, as appropriate, the public body shall use in the proceedings such official language as appears to it to be reasonable, having regard to the circumstances. (5) Notwithstanding any other provision of this section, a person shall not be compelled to give evidence in a particular official language in any proceedings. (6) In choosing to use a particular official language in any proceedings before a court, a person shall not be put by the court or a public body to any inconvenience or expense over and above that which would have been incurred had he or she chosen to use the other official language.” (Emphasis added) ________________________________________________________ At the time these proceedings were instituted there were two jury districts in Galway, respectively Galway City and the County of Galway. However, by an order made pursuant to the Juries Act by the Minister for Justice on the 27th March, 2013 these districts were abolished. That measure, which came into operation on the 8th April, 2013 revives in relation to Galway the basic statutory provision that “each county shall be a jury district”. Accordingly, the effect of the ministerial order just referred to (SI 115 of 2013) is correctly stated in the explanatory note:
Qualification of Jurors generally. What exactly this may mean is not further elaborated by the Law Reform Commission but it is obvious that it means that such persons, persons who are unable to communicate in English, are in some way filtered out and excluded from service on a jury. It is manifest that, according to the Law Reform Commission, some investigation is in practice made as to the ability of jurors to speak English, in a case tried in English so as to “identify” those “unable to communicate” in English. This is done without express statutory mandate. Whatever criticism one may make of this system it is manifest that if it is lawfully applied in cases tried in English, it could lawfully be applied to cases tried in Irish. In a Gaeltacht jury district, if there were one, there would be few such persons unable to undertake Irish, on the strength of the expert evidence which was unchallenged in this case. The position as to the qualification of jurors generally is summarised in the Law Reform Commission in their consultation paper on jury service (LRC CP 61–2010). At pages 112-113, jury literacy is discussed as follows:
But s.8(4) of the 2003 Act applies only “where the State or a public body is a party to civil proceedings before a court…”. (Emphasis added) The appellant has put before the Court very impressive material from other jurisdictions which are committed to bilingualism, most notably material from Canada. From these it is quite clear that it is possible, in a State sharing the same fundamental attitudes to the administration of criminal justice as prevail here, and which shares in particular a commitment to jury trial, to ensure that jurors competent to conduct a trial in each of the languages legally or constitutionally available to citizens can be provided. But, says the Irish State, that is not possible here having regard to the lack of statutory provision for it and, in particular, to the need to select a panel of jurors “using a procedure of random or other non-discriminatory selection” from the register of electors in the jury district. The State do not attempt to explain how a competent knowledge of the English language is ensured amongst jurors. But the Law Reform Commission has given the game away in that regard. In saying this, I mean that the Law Reform Commission’s discussion documents and report have made it clear that, even in a generally English speaking area of the country it is necessary for court staff to intervene for the purpose of:
In drawing attention to this practice, I do not mean in any way to suggest that it is an unlawful or discredible practice. On the contrary, for reasons set out towards the start of this judgment, I consider it to be absolutely essential to ensure that the jury which is to try the issue of guilt or innocence be capable of understanding the language of the case. The “language of the case” means either of the languages recognised as official languages, Irish or English, whichever the case is to be tried in. I would draw attention to a number of aspects of the provisions of the Juries Act, set out above.
(ii) The basis on which a jury who is called from the panel to serve in a particular case may be excluded from doing so is on the basis of being disqualified or ineligible. Schedule I, Part I of the Act of 1976 contains a list of the persons who are ineligible, which includes persons who are “incapable”. Due, no doubt, to an error in draftmanship, a person may be incapable “because of insufficient capacity to read”. It is very remarkable that nothing is expressed in the Act about insufficient capacity to speak or understand the language of the case which is more obviously an essential qualification for the work of a juror.
I therefore think that the County Registrars and other court staff who presently behave as described in the Law Reform Commission Report, are doing so lawfully and in the interest of trial by jury as guaranteed in the Constitution. In my view, it is essential that this Court on the hearing of the present appeal come to a firm conclusion on this question. If the present practice is unlawful then the Court should say so, notwithstanding that the consequence may be to invalidate some indefinite number of recently held trials. But if the practice (as I believe) is lawful, then there is no reason that cannot be applied to secure a jury capable of understanding the evidence in whichever of the official languages is the language of the case. In that latter event, it follows that the reasoning of the High Court in refusing relief to the appellant, cannot stand. It must, of course, be said that it is a truly remarkable omission in the Juries Act 1976 to fail to specify that a juror called to serve in a particular case must be able to understand the language of that case. But that is an omission by the legislature, and there is nothing the Court can do about that. A Gaeltacht Jury District? The State have not denied that, if there were a jury district consisting of, or including, the large Gaeltacht area already delineated by statutory instrument, it would be readily possible to find in such area a jury capable of hearing the case in Irish. There was evidence to this effect in this case. Any difficulties in doing so could be surmounted by exactly the steps used to ensure a jury competent in English, where English is the language of the case. The legislation on juries, the relevant parts of which are mentioned above, are remarkably silent on the question of the qualifications of jurors. There is, for example, no express legal provision that a juror sworn for a trial in, say, Dublin, should be able to speak English. There is provision that a person may be ineligible for jury service “because of insufficient capacity to read” but it is apparently sufficient to remove oneself from that category that one is able to read in any particular language: no particular language is specified. In today’s conditions, it is certainly not improbable that a person whose native language is not English may be summoned for jury service in Dublin. About this contingency, and the question of whether such person has enough English to follow the proceedings, the Law Reform Commission can say only:
If such a person is called for jury service, the terms of s.15(3) of the Juries Act 1976 mean that the onus is upon that person himself to declare that he is ineligible.” The practical difficulty that this remarkable omission causes is remedied quite informally: “Court Service staff dealing with jurors and Court Registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language”. It is quite clear that this is done by excluding such persons from jury service because they cannot communicate in English. This practice which is nowhere expressly authorised in law, but which has been revealed by the Law Reform Commission, gives the lie to any suggestion that all jurors are in fact selected on a totally random basis. It is clear from the source quoted that persons who cannot communicate in English are “identified”. It would of course be much more honest and transparent if there were a legal basis for this process but the existence of the practice renders it quite impossible for the State to say that one cannot select an Irish speaking jury because that would interfere with the random nature of the process. The somewhat ad hoc system which, in the view of the Law Reform Commission, ensures that jurors in Dublin are able to speak English could plainly be used to ensure that jurors selected from a jury district comprising a large Gaeltacht are able to speak Irish. If such ad hoc arrangements are not objectionable in the Galltacht, I cannot see that they would be unacceptable in the Gaeltacht. And if they are objectionable in the Gaeltacht, they are to the same extant objectionable in the Galltacht. In that event statutory reform is urgently needed.
The State Respondents rely very heavily on the case of MacCártaigh v. Eire [1999] IR 186. The plaintiff in that case was a native Dublin man charged with theft offences allegedly committed in the Dublin Metropolitan District. He was an Irish speaker. The headline offence was the alleged theft of chocolates and sweets worth £11,252.50. He, too, wanted a trial before a jury who could understand him in Irish without the intervention of an interpreter. He was refused relief on the grounds that “if every member of the jury had to be able to understand legal proceedings in Irish without the help of an interpreter, that would exclude the majority of the People of Ireland”. (Page 199). That, indeed, is the entire ratio of MacCártaigh, both in the High Court and in the Supreme Court. The State defendants say that this case is directly in point in the present litigation. The plaintiff/appellant says that it is clearly and obviously distinguishable and indeed the undisputed evidence of Dr. Ó Giollagáin is directed to that point. The judgment of this Court in MacCártaigh was delivered in Irish by Hamilton C.J., and it upheld the Order of the High Court. At p.196 Hamilton C.J. said, again in my translation:
That means, if one were setting about putting together a jury list which would have no-one on it except people who had a good knowledge of the spoken language, that it would be necessary to exclude 75% at least of the community in the City of Dublin (“D’fhaigáil ar leath-taoibh”, lit. to leave on one side from the start). And I am of the opinion that the figure would be closer to 90% or more if one were concerned with people who would be able to address complicated questions of criminal law and to understand them”. (Emphasis added) The figures quoted above are taken from the 1986 Census of Population. The most dramatic figure, that on the basis of which it is possible to say that a requirement for a jury panel composed of people who would understand Irish would exclude 90% of the population, relates expressly and specifically to the Dublin Metropolitan District only. It was so described by O’Hanlon J. in the passage quoted above. It is to those figures, and the conclusion based upon them, that the uncontradicted evidence of Dr. Ó Giollagáin in the present case was directed. As the Statutes quoted in this judgment makes clear, there is no question, in any circumstances, of a jury panel being derived from the People of Ireland as a whole. On the contrary, the jury for any particular case is selected from different and smaller “jury districts” which, unless the Minister specifies otherwise, are the administrative counties. In the present case, there is no evidence on either side as to the linguistic competence, or the probable linguistic competence, of a jury selected from the County of Galway as a whole. There is ample uncontradicted evidence that, if there were a jury district consisting of the Gaeltacht areas of West Galway, a very high percentage of a jury panel taken from those districts would be able to speak Irish and to follow legal proceedings in that language. Such a district would also, according to the uncontradicted evidence, provide a reasonable cross-section of the community including those engaged in professional and other skilled occupations, officials, business people, self employed people, students and the unemployed, as well as farmers and other agricultural workers. Power to require a Gaeltacht Jury District. The plaintiff/appellant has, however, the difficulty of establishing that it is within the jurisdiction of the Court to compel the Minister to create a jury district of the sort he requires or that, even if it is, the Court should exercise such jurisdiction. But these are different and quite other issues, which will be considered in their place below. For the present, it is sufficient to note that the ratio of MacCártaigh, concerned as it is with the availability of Irish speaking jurors in the Dublin Metropolitan District or, obiter, in the country as a whole, is quite different to that pertaining to a claim whose facts and legal contentions alike are restricted to the actual circumstances of the plaintiff here, that is of a gaelgeoir, a native speaker, charged with an offence against another Gaeltacht resident, which offence is said to have taken place within the Gaeltacht. There can be no dispute with the various cases cited, holding a jury panel should be representative of the community. The community, or, in Irish, Pobal, in question here is a Gaeltacht community which is part of the County of Galway as opposed to a broader area, such as the people of Ireland as a whole, or one which is simply different, such as the community of the Dublin Metropolitan District. The Circuit Court, where this case will be tried, is a court of “local”, and not National, jurisdiction. The most fundamental problem, the first of two such problems, faced by the appellant is that the Minister has not, of course, designated a jury district comprising of, or comprising largely of, the Gaeltacht. He could do so if he wanted to, but has not done so. It would seem necessary to do so, as a practical matter, if a reliable source of Irish speaking jurors is to be found. The appellant seeks in these proceedings, amongst other reliefs:
That state of the law was changed by s.60 of the Civil Liability Act, 1961, providing that “a Road Authority shall be liable for damage caused as a result of their failure to maintain adequately a public road”, i.e. for non-feasance. But another provision of s.60 provided that the Section “shall come into operation on such day, not earlier than the 1st day of April, 1967 as may be fixed therefore by order made by the Government.” No order was ever made by the Government bringing s.60 into operation and Mr. Sheehan sought relief by way of mandamus requiring the Government to make an order fixing the date for the coming into operation of the Section. He was successful in the High Court (Costello J.) but that decision was reversed in this Court. Henchy J., with whom a majority of the Court agreed said at p.551:
I am satisfied that s.60(7) is merely enabling. The usage of ‘shall’ and ‘may’ both in the subsection and in the Section as a whole point to the conclusion that the radical law reform embodied in the Section was intended not to come into effect before the 1st April 1967 and thereafter on such day as may be fixed by an order made by the Government. Not, be it noted, on such day as shall be fixed by the Government. Limiting words such as ‘as soon as may be’ or ‘as soon as convenient’, which are to be found in comparable statutory provisions are markedly absent. If the true reading of s.60(7) were to the effect that the Government were bound to bring the Section into operation, it would of course be unconstitutional for the Government to achieve by their prolonged inactivity the virtual repeal of the Section.” On the hearing of this appeal Mr. Lúan Ó Braonain S.C. for the State said that the fundamental difficulty in complying with a plaintiff’s wish to address the Tribunal of Fact directly in his native language and to be understood directly by them in doing so was that it would be impossible to find a competent jury. This is not so. On the uncontradicted evidence in this case, it would be quite possible to find such a jury but the Executive has refrained from taking the simple and virtually cost free step that would allow the provision of an Irish speaking jury, representative of the pobal or community of Connemara. The Executive is not here confronted with the sort of difficulty or sheer impossibility which prevented the plaintiff being accorded relief in MacCártaigh v. Eire, above. There, where a Dublin based defendant was charged with offences against property committed in Dublin, Hamilton C.J. cited with approval a passage from the Vanderbilt Law Review which I have quoted above. He nonetheless dismissed the plaintiff’s claim for an Irish speaking jury. The judgment was delivered entirely in Irish so that the citation which follows is my translation of what was said by Hamilton C.J., at p.198 of the Report. After citing the passage from the Vanderbilt Law Review already referred to he continued:
For that reason the Court will dismiss the appeal”. The Supreme Court judgment in Sheehan v. Ireland “seems unduly timid in the circumstances…” according to the learned editors of J.M. Kelly: The Irish Constitution (4th Edition, p.380). But it is not necessary for present purposes to enter into the merits or otherwise of the case since I believe that it is plainly distinguishable from the circumstances of the present case, which concern the measures to be taken by the legislature in the discharge of a constitutional duty. This duty is that expressed by Kennedy C.J., in language already quoted in this judgment, as follows:
Kearns P. first held, as summarised at para. 1 of the headnote:
Those steps involve merely the making of a statutory instrument of the kind indicated at page 33 and 34 above. I have considered whether the Court should refrain from ordering this step to be taken on the basis of the provisions of the Official Languages Act 2003 and in particular those set out above. It appears to me that s.8(4) of that Act actually secures to a party who is the litigious opponent of the State or a public body precisely the right which the appellant seeks here - the right to dictate the language in which the proceedings are conducted and adjudicated. I say “adjudicated” because s.44 of the Courts of Justice Act, 1924 provides that:
But the relevant provision of the Act of 2003 is drafted with regard to civil proceedings only. That is, it is drafted so as to exclude criminal proceedings of any kind, whether prosecuted summarily, or on indictment. It might be thought that this is not a rational distinction. Certainly it is the case that if a person were engaged in civil proceedings against the State for assault by an official, he would be entitled to trial by jury of that cause and he would be entitled, by reason of the 2003 Act, to have the case conducted in Irish on both sides. It is not obvious to me why a distinction is made between the trial of a civil action for assault and the trial of a criminal prosecution for assault. The state of law and practice whereby the State cannot or will not provide for the trial of the appellant a tribunal which will understand him directly as he makes his defence to a serious criminal charge which the State has brought against him in one of its own courts is in my view a breach of the principle, established in Ó Foghludha v. McLean, according to which:
To order the creation of a jury district composing the area constituted by the Gaeltacht would permit a trial in Irish, directly understood, in the particular case of the applicant. It would not, of course, remove linguistic inequalities more generally, for instance in the context of a person such as Mr. McCártaigh whose case is cited above. But it is beyond the power of the Court to amend the law generally, though we can grant relief in the particular case of an individual whose legal or constitutional rights have been denied or disregarded.
Conclusion. I would grant that declaration substantially in the terms of the second relief claimed by the applicant in his statement grounding the application for judicial review and declare:
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