It has recently been reported that the Bar Council of Ireland has been considering whether ordinary crimes might be tried in non-jury courts in light of the restrictions imposed because of Covid-19 (see Colm Keena, “Bar Council looking into idea of ordinary crimes being tried in non-jury courts”, Irish Times, 6 May 2020). As reflected in the reference to “ordinary crimes”, many serious crimes can already be tried in the Special Criminal Court (a non-jury court) but, according to Article 38.3 of the Constitution, special courts may be established by law only for “the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.” The all-important constitutional provision for present purposes is Article 38.5 which states:
“Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.”
In effect, this means that no person may be tried without a jury unless the offence is a minor one triable in the District Court, or it is being tried in the Special Criminal Court or it is a military offence being tried by a military tribunal.
Might Article 38.5 be interpreted as to allow persons accused of “ordinary” serious offences to waive jury trial in favour of trial by judge alone or, perhaps, a bench of judges as in the Special Criminal Court? I recall doing some research on this topic when writing The Criminal Process (2009) more than a decade ago, and the matter is dealt with at pp. 844-847. Obviously, it never occurred to me then that we would ever experience the conditions in which we are living today. The essential question is whether jury trial under Article 38.5 is to be interpreted as an imperative or a right, If it is a right, it can probably be waived; if it is an imperative it probably cannot.
The constitutions of some other common-law jurisdictions provide for jury trial, but they do so in different ways. The federal Constitution of Australia (s. 80), for example, provides:
“The trial on indictment of any offence against any law of the Commonwealth shall be by jury…”
The Canadian Charter of Rights and Freedoms (s. 11) provides:
“Any person charged with an offence has the right…. except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.”
Jury trial is doubly protected by the United States Constitution. Article III (2)(2) provides:
“The trial of all Crimes, except in Cases of Impeachment, shall be by Jury…..”
Then the Sixth Amendment provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been permitted.”
Clearly, therefore, some constitutions declare jury trial to be a right whereas others seem to treat it as an imperative. The United States Constitution might be said to do both. Our Constitution, as noted, provides that, apart from the three exceptions mentioned, “no person shall be tried on any criminal charge without a jury.” This is very close to the Australian formulation stating that the trial on indictment of any Commonwealth offence “shall be by jury..” In R v Brown (1985-86) 160 C.L.R. 171, a majority of the High Court of Australia held that s. 80 of the Constitution did not permit waiver. Brennan J., one of the majority, wrote:
“Trial by jury is not only the historical mode of trial for criminal cases prosecuted on indictment, it is the chief guardian of liberty under the law and the community’s guarantee of sound administration of criminal justice…. Section 80 of the Constitution entrenches the jury as an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence. That section is not concerned with a mere matter of procedure but with the constitution or organisation of any court exercising that jurisdiction.”
Another member of the majority, Deane J., had earlier written in R v Kingswell (1985) 159 C.L.R. 264 at 298-302, which dealt with a slightly different matter:
“The guarantee of section 80 of the Constitution was not a mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases.”
In the United States, on the other hand, jury waiver is recognised at both state and federal levels. See, for example, Patton v United States 281 U.S. 276 (1930) and Singer v United States 380 U.S. 24 (1965). But, there, as already noted, the Sixth Amendment (whatever about Article III) describes jury trial as a right.
Not having had occasion to look into the matter for some years, I cannot say for certain if there are any indications in recent judgments of our own superior courts as to whether Article 38.5 should be treated as a conferring a right or establishing an imperative. I cannot recall any such authority off-hand, but readers will correct me if I am wrong about that. There are, however, some interesting dicta in People v O’Shea  I.R. 384 where the question was whether the Constitution permitted a prosecution appeal against an acquittal in the Central Criminal Court. Walsh J. said (p. 418):
“Jury trial in criminal cases, which is made mandatory by the Constitution save in the exceptions provided for. is a most valuable safeguard for the liberties of the citizen.”
Henchy J. (dissenting), on the other hand, said (p. 431):
“[Article 38.1] means, in effect, that every person charged with a major (or non-minor) offence is entitled as of constitutional right – unless the case falls into one of the excepted classes – to a trial with a jury.”
However, it would probably be unwise to read too much into either statement, partly because jury waiver did not arise in that case and partly because neither statement is necessarily absolute. Walsh J. described jury trial as mandatory but also as a most valuable safeguard of civil liberties. Henchy J., while emphasising jury trial as a right, might, if the matter fell to decided, find it to be an imperative as well.
Suffice it to say that one cannot be at all confident that jury trial under the Constitution of Ireland is a right that can be waived (and the waiver of any right must always, of course, be informed and voluntary). If the restrictions necessary because of Covid-19 must be retained for some time to come, and to the extent that jury trials cannot safely he held, the legality and constitutionality of jury waiver may become a real issue. Lawyers are also right to express the concern that if criminal trials have to be delayed for substantial periods, defendants may seek to have them restrained altogether on the basis that they have been denied their constitutional right to trial with reasonable expedition. It would certainly be unwise to proceed with non-jury trials for ordinary serious offences without authorising legislation. Otherwise, persons convicted following such trials might later challenge their constitutionality and so do successfully. That state of affairs would be in nobody’s interests. If needs be, legislation might be enacted permitting non-jury trials for ordinary serious offences for a very limited period and in light of the current crisis, but on the tacit understanding that the Bill would be referred to the Supreme Court by the President under Article 26 of the Constitution for a determination as to whether it was repugnant to the Constitution. The Supreme Court would doubtless be prepared to hear and determine the case as a matter of priority, probably in a much shorter time frame than the 60 days permitted by the Constitution. Of course, before any of that can happen, we need a Government and a Seanad!