A continuing role for juries

Niamh Howlin

Niamh Howlin

Kevin Burns of Irish Legal News meets Niamh Howlin, a senior lecturer in UCD Sutherland School of Law, to discuss her recently published work – Juries in Ireland: Laypersons and Law in the Long Nineteenth Centuryand learn how Ireland was distinguished among common law jurisdictions for its prolific use of juries in almost all aspects of the law.

Victorian-era Ireland referred all manner of cases for the consideration of a dozen laypersons. Juries were used to approve coroner’s reports, to rule on width of streets, the value of a property, the sanity of an accused person, and even on whether an accused female was with child (so as to avoid the gallows).

As juries were of such importance to the administration of justice, they attracted both scandals of corruption and accusations of political bias from all sides of Irish society — becoming a battleground in the turbulence of nineteenth century Ireland.

KB: The legal system of the nineteenth century has a bad reputation in popular memory. Victorian-era courts in England are remembered as very severe, Dickensian institutions. Were the Irish courts of that time any fairer and more open than their English counterparts because of the enhanced role of the juries?

Niamh: It’s hard to say, because in terms of the criminal justice system, they used juries in England just as much as they did in Ireland, but juries in England tended to convict a lot more than juries in Ireland. So, it depends on what your perspective is on what a fair legal system is; is it necessarily a good thing that an accused person in Ireland had a better chance of being let off? Possibly not. So, it’s quite difficult to make a comparison between the two jurisdictions.

KB: How great a part did perceived injustices in the jury system play in antagonising, and perhaps radicalising, politics in nineteenth century Ireland?

Niamh: It definitely played a part. If you look to the period of Daniel O’Connell, one of the areas in which he agitated for reform was the jury system, particular regarding the lack of Catholic representation on juries. So, juries became part of the “Catholic Question” at that point.

Later in the nineteenth century, when the nationalist movement was once again growing across the country, for example during the Land War, juries, and particular who could sit on juries, once again became very controversial and therefore the issue was politicised.

However, I wouldn’t say that juries were politicised throughout the whole period, but at different times during the Long Nineteenth Century it became a very hot issue. That being said, criticism was being made of juries from right across the political spectrum, so perhaps that might be evidence that there were actually doing their job if they offended all sides equally.

KB: When and why did Ireland move away from that “jury-heavy” legal system?

Niamh: When we were still part of the UK there was already a move away from having juries involved in so many civil cases. In the late nineteenth century juries were pulled back from the civil law cases, which was the start of a very gradual process which saw the importance of juries diminish over a hundred years or so. This led to the position we’re in today where only the most serious indictable criminal offences are tried by juries, as well as a very small number of civil cases such as defamation. This process was very much mirrored in the UK. However, if you look at other jurisdictions like the USA, they haven’t experienced that decline at all, so juries are still used very widely in both civil and criminal cases.

On what we can learn today:

KB: Is there anything that we in the twenty-first century could learn from this use of juries, perhaps in terms of their communitarian values?

Niamh: What I would say is that we needn’t be afraid of letting lay persons or non-legally trained persons have a role in decision making.

Obviously, the role of juries has since contracted a huge amount since the nineteenth century. We tend only to have juries in criminal cases now, and even then it’s only a small percentage of criminal cases that require a jury. But I do think there is a value in having that community decision-making as a means of giving the decisions a certain legitimacy.

Even outside of criminal trials, we have started to see a move back to including the layperson’s voice when deciding matters of public policy, for example, with the use of constitutional conventions – ordinary citizens judging the merits and demerits of various parts of the Constitution – and that obviously has had a huge impact. And so I suppose what remains relevant about these juries to the twenty-first century is that we should remain open to layperson decision making. Not all decisions have to be made by experts; there’s certainly room to include the non-expert voice in decision-making.

KB: One example of lay-decision making in Irish society today is the involvement of the public in planning permission. And yet, accusations of nimbyism and obstructionism are often made against the objections submitted to the county councils by the public. So, in a way, it could be argued that perhaps some in Irish society would like to move further away from lay decision-making, at least with regards to planning permission.

Niamh: I think that’s interesting take. When we think of a jury, we usually think of twelve persons who are operating very much in the public view – you’re summoned in public, you’re sworn in in public. I feel that there’s something about the public nature of the trial as well as the inclusion of a dozen individuals, which is quite a large number to decide any decision, I think there’s a safety in that. I think perhaps those accusations might be better founded where the decision has been taken by one or two people behind closed doors, rather than through a process of open, public lay decision-making.

On writing and advice for PhD students:

KB: I’ve read a lot of legal texts, and although quite a few are written about really interesting topics, they’re often let down by a drab, “legalistic” writing style but in your book the writing was engaging right from the first paragraph. How did you develop your writing style?

Niamh: I suppose like most people I developed my writing style through trial and error. I’ve been writing legal histories for more than a decade at this stage, and I’m sure if I went back to look at some of my earlier work I’d think it was pretty dreadful – I’m sure my PhD thesis wasn’t great. Aside from trial and error, I read a lot of what other people around me were writing and took inspiration from the texts that I really enjoyed reading.

KB: What are your biggest motivations during the writing process?

Niamh: The first one is curiosity; I’m interested in learning about the story behind a particular law or piece of legislation or case. It can often be quite distracting; every law student has been in the situation where they’re reading a case and being wrapped up by the facts, and it can be a really pleasant distraction from the more tedious aspects of the law. So I feel that curiosity, or perhaps nosiness, is a really key motivator.

I’m very keen on Irish legal history as a discipline. I’d really like to promote scholarship in Irish legal history. In particular, the Irish Legal History Society has done a fantastic job in the last thirty years in publishing works on various aspects of our legal history. Before then, there wasn’t really very much happening in that area. I’d like to make a contribution towards that growing body of knowledge. There is a very strong tradition of Irish legal history scholarship in UCD Sutherland School of Law. It really is a great place for Irish legal history. There’s a lot of support, sharing, and collaboration.

The other thing that motivates me is the universality of the idea of a jury or layperson involvement in legal decision making. Every common law jurisdiction has, at some point, played with the idea of juries, although perhaps not as we recognise it, and an awful lot of civil law jurisdictions have also experimented with lay decision-making, so I think the idea is very relatable. People from all sorts of legal backgrounds can relate to this idea of having a lay voice within legal decision-making. I hope that this book can be my contribution to that broader discussion about the merits of lay decision-making.

KB: What advice would you give to PhD students who are currently in the depth of the writing process with their own books and theses?

Niamh: I would say that time-management is very important, as well as having a clear laid out plan. I also think it’s very important to have a good support network; so if the other people in your life are happy with you scribbling away with your nose in a book, that’s a great help in the process.
Most importantly; do something that you’re really interested in. Pursue something that you are genuinely excited to write about. You should be genuinely excited about getting up in the morning to write a chapter and looking forward to the process.

To spend three or four years on a PhD really is a hard auld slog, so if you find yourself dreading the prospect of writing about a subject that you aren’t actually interested in, it will have a negative impact on your writing and may impede your progress altogether. So, picking a subject that you have a genuine and enduring interest in is crucial.