O’Maicin v Eire: No absolute constitutional right to bilingual jury

imagesThe Court held that, although the Appellant has a constitutional right to conduct his business with the State through the Irish language, it could not direct the State to convene a bilingual jury to hear his case without an interpreter, as: firstly, this would be contrary to the determination in de Burca v Attorney General that large sections of the community cannot be denied the right to sit on juries; and secondly, it would be contrary to the constitutional rights of the jury members to conduct their business with the State through English.

Background

Although he was born in Dublin and now lives on the outskirts of Galway City, O’Maicin lived much of his life in the Gaeltacht area of County Galway. His family moved there when he was three years old. His first language is Irish, and he did not master English until he was in his teens. The DPP has charged him with two offences under the Non-Fatal Offences Against the Persons Act 1997. It is alleged that he carried out the offences in the Gaeltacht, against a Gaelgoir resident of that area. A jury will hear the case in the Galway Circuit Criminal Court.

O’Maicin informed the DPP and the Circuit Court that he will conduct his case through Irish and requested that the DPP and the court do likewise. He further requested that the court convene a bilingual jury to hear the evidence given in both Irish and English without an interpreter. The Circuit Court rejected the request for a bilingual jury. O’Maicin issued judicial review proceedings of that decision in the High Court, which rejected to grant the remedies sought. He appealed that decision to the Supreme Court.

Supreme Court

Hardiman J, in the one dissenting opinion (here), and Clarke J (here) were in agreement that this was a language rights case. Where they differed in opinion was whether this case could be distinguished from the precedent in MacCarthaigh v Eire. That case involved a Gaelgoir charged with offences in the Dublin Metropolitan District, who requested a bilingual jury. The Court held that, as that would exclude 90% of those in the district who did not have a sufficient ability in the Irish language, it would breach the principle established in de Burca v Attorney General that it is unconstitutional to exclude representative sections of the community from the right to jury duty.

Hardiman  stated that the constitutional status of Irish, as the first official language of the State, means that the State has an obligation to provide services through the courts in Irish to a higher standard than it does through non-official languages such as Nigerian and Chinese. He cites a report from the Courts Services which states that it provided interpretation services in 65 different languages in 2011.  For the constitutional status of the Irish language to be anything more than “a mere shibboleth” the State must, where it is requested and it is possible, provide a bilingual jury. He stated that the Minister for Justice has statutory power to divide counties into separate jury districts and that the Gaeltacht area of Galway could be made a jury district from which a bilingual jury could be drawn.

Clarke, though, while agreeing that there is a constitutional right to do so, held that the right to conduct court proceedings through Irish is not absolute. It must be balanced against the rights established in de Burca, that representative groups in society cannot be excluded from the right to sit on a jury. He held that even in the Gaeltacht there may be at least one third of the population that would not be capable of hearing expert evidence in both languages without the assistance of an interpreter. To exclude such a large group would breach the principle established in de Burca.

MacMenamin J wrote an opinion concurring with Clarke, but with slightly differing reasoning. He started from the Appellant’s position of wanting, not only a bilingual jury, an order that the trial be conducted without the assistance of interpreters by any party. MacMenemin cited from Kelly: The Irish Constitution that it is a principle of natural justice that a litigant can conduct his business with the courts through either of the two official languages, but he cannot force his choice of official language on other parties. Those other parties include the judge and the jury.

O’Neill J also issued an opinion rejecting the Appellants case on the grounds that the he had not demonstrated that it was feasible for the State to make provision for a bilingual jury without excluding a large portion of the jury pool.

O’Donnell J did not write an opinion, and he spoke in Irish while giving judgment. I cannot say with certainty, but I believe that he concurred with Clarke.

Interesting question

As any party can conduct their business with the courts through either of the official languages, can a jury member, with a sufficient level of English, demand that an interpreter be provided to translate evidence, given in English, into Irish?

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