Deaf – and blind – persons have served on juries in the US for 40 years, Michael Farrell writes, but Britain held out against deaf jurors until this month.
A deaf woman called for jury service in January last was rejected when she notified the court that she would need a sign language interpreter.
The courts service said interpreters could not be allowed into the jury room while the jury was discussing the case because it would undermine the confidentiality of the jury’s deliberations.
Malcolm Johnston’s case was a major advance for the deaf community, who feel that they are discriminated against and treated as second-class citizens when they are excluded from playing a full part in such an important part of the democratic process.
But the Johnston case did not resolve all the problems facing deaf persons who want to serve on a jury. Mr Johnston lip reads and did not need an interpreter in the jury room, while he was able to follow the evidence in the trial through sub-titling by a court stenographer.
So the issue of an interpreter, or 13th person, in the jury room remains unsolved in the British courts.
How does that compare with the situation in Ireland, which like the other common law countries, inherited the jury system from Britain?
The 1976 Juries Act, which ended the discrimination against women jurors, excluded deaf persons as “unfit” for jury service.
That was challenged in 2006 by deaf Galway woman Joan Clarke. Four years later, in July 2010, the High Court ruled in her case that there should not be any blanket exclusion of deaf persons from juries, but the late Judge Dan O’Keeffe added that, in his opinion, sign language interpreters could not be allowed in the jury room.
Free Legal Advice Centres, which had taken the Joan Clarke case, took several more deaf juror cases, working with the deaf NGO DeafHear (now called Chime).
In November 2010, the late Judge Paul Carney, the senior judge in the Central Criminal Court, ruled that deaf teacher Senan Dunne could serve on a jury with the assistance of sign language interpreters, who would have to take an oath of confidentiality similar to that taken by the jurors themselves.
Unfortunately for Mr Dunne, the defendant’s legal team challenged him and he had to stand down, to the disappointment of the deaf community.
There were no other deaf jury cases in Ireland for a while and attention shifted to the situation in Australia, which had a similar system.
Deaf persons had already challenged the ban on interpreters in the jury room in several Australian states, all without success.
In 2013 two of the unsuccessful challengers complained to the UN Committee on the Rights of Persons with Disabilities, which monitors the UN Disability Convention (CRPD).
They argued that they had been unfairly discriminated against because of their deafness and the state had failed to make reasonable accommodation to assist them to serve.
In 2016 the CRPD Committee found Australia guilty of a number of breaches of the Convention and ordered them to allow deaf persons to serve on juries with the assistance of sign language interpreters.
The Australian Capital Territory duly amended the law on juries in 2018 to allow deaf persons to serve, though the other states have been slower to comply with the CRPD ruling.
Ireland had been very slow to ratify the UN Disabilities Convention but in 2016, around the time of the Australian cases, the government introduced the Disabilities (Miscellaneous Provisions) Bill to enable it to ratify the Convention and the Bill included a provision that no-one should be prevented from serving on a jury just because they would need the assistance of a sign language interpreter.
The Bill has moved very slowly and has not yet been passed, but in the meantime, the government ratified the Disabilities Convention in 2017 and it was clear that attitudes were changing substantially.
In December 2017 with no fuss and no objections from prosecution or defence, Kevin Dudley, a deaf man, was empanelled on a jury in Dublin, with the assistance of an interpreter.
As it happened, the defendant pleaded guilty and the jury did not have to deliberate on a verdict, but speaking from the bench, Judge Sinead Ní Chulacháin remarked that history had been made when Mr Dudley had become the first deaf person to sit on an Irish jury.
She compared it to the legislation that had led to the inclusion of women jurors over 40 years earlier.
In Britain the UN Disabilities Committee has already sharply criticised the exclusion from jury service of deaf persons needing the assistance of sign language interpreters, so it cannot be long before Malcolm Johnston is followed into the jury room by other deaf persons, this time accompanied by sign language interpreters who have taken an oath of confidentiality.
Michael Farrell is a solicitor and was senior solicitor with Free Legal Advice Centres when they represented Joan Clarke and Senan Dunne in their challenges to the exclusion of deaf persons from juries.