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1. Introduction
1.1 The special status of the Irish language under the Constitution is clear. Irish is recognised as the national language and it is in that capacity that Irish is specified, in Article 8.1 of the Constitution, to be the “first official language”. That some significant obligations lie on the State deriving from that special status accorded to Irish cannot be doubted. That those who wish to conduct their business, particularly with the State, in Irish enjoy certain language rights equally cannot be doubted. However, the precise extent of the State’s obligations and individuals’ rights in this area is a matter which requires more careful analysis.

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
2.1 I find myself in disagreement with the judgment of the President of the Court, Hardiman J. However, his judgment sets out a full account of the factual backdrop to these proceedings, the unsuccessful application made by Mr. Ó Maicín in the court of trial (the Circuit Court, presided over by the fourth named respondent) seeking trial before a jury who could understand both Irish and English without translation and much of the general factual background concerning the expert evidence tendered in the High Court relating to the prevalence of Irish speaking, particularly in the Gaeltacht area of Connemara close to where Mr. Ó Maicín resides and where the offence of which he is charged is alleged to have taken place. It is, therefore, unnecessary to repeat that background here.

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
3.1 The starting point has to be an analysis of the status of the Irish language in the Constitution. In that regard I agree with much of the judgment of Hardiman J. in his analysis of the case law from O’Foghludha v McClean [1934] I.R. 469 to his own judgment in Ó Beoláin v Fahy [2001] 2 I.R. 279. Hardiman J. mentions that Article 8.3 of the Constitution permits provision to 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”. It may well be, as was suggested by Kohn, The Constitution of the Irish Free State (London, 1932) that Article 8.3 (and its predecessor in the Constitution of the Free State) was designed with a view to the possible reintegration of the national territory. Be that as it may, the provision seems more general in its application and is by no means confined to matters which might be said to be connected with Northern Ireland.

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
4.1 As the authors of J M Kelly - The Irish Constitution (3rd Edition) point out (at p. 657) the term jury is used in Article 38.5 of the Constitution but that term is not defined. The authors also suggest, correctly in my view, that it is more appropriate to regard the provisions of Article 38.5 as providing for a constitutional obligation that there be a trial by jury save in those cases where the Constitution itself permits otherwise (minor cases, special courts and military tribunals). While the “right to a trial by jury” is often spoken of, the way in which Article 38.5 addresses trial with a jury suggests that there is a constitutional requirement for such a trial independent of any entitlement which an accused may have to be tried with a jury. Article 38.5 requires that, save for the exceptions just noted, “no person shall be tried … without a jury”. While a person might be said to have a right to jury trial derived from that provision, it seems to me that the Constitution goes further and requires jury trial independent of the views of either prosecuting authorities or the accused.

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:-

“Of course, the jury must be drawn from a pool broadly representative of the community so that its verdict will be stamped with the fairness and acceptability of a genuinely diffused community decision. The particular breath of choice necessary to satisfy this requirement cannot be laid down in advance. It is left to the discretion of the legislature to formulate a system for the compilation of jury lists and panels from which will be recruited juries which will be competent, impartial and representative.”

“Where a system of jury recruitment is assailed for being exclusionary to the point of unconstitutionality, the test is whether, by intent or operation, there is an exclusion of any class or group of citizens (other than those excluded for reasons based on capacity or social function) who, if included, might be expected to carry out their duties as jurors according to beliefs, standards or attitudes not represented by those included. If such a class or group is excluded it cannot be said that such a resulting jury will be representative of the community. The exclusion will leave untapped a reservoir of potential jurors without whom the jurors lists will lack constitutional completeness”.

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
5.1 In MacCárthaigh the applicant sought, in a manner not dissimilar to that adopted by Mr. Ó Maicín in these proceedings, orders designed to ensure that he could only be tried “before a jury having the capacity to understand the Irish language without the assistance of an interpreter” together with ancillary orders directed to the same end. Insofar as there is any distinction between the relief sought by Mr. Ó Maicín and that sought in MacCárthaigh, it is that Mr. Ó Maicín seeks a jury who can understand both Irish and English whereas Mr. MacCárthaigh sought only a jury capable of understanding Irish without the assistance of a translator. However, given the very small number of persons who can speak and understand Irish but not speak and understand English there is, at a level of practicality, little difference between what was sought in MacCárthaigh and that which is sought in this case.

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:-

“It should be capable of being said of any jury in every criminal case that they represent every category of the public in the area in which the action is heard. As the Supreme Court of the United States said in the above mentioned case, Taylor v Louisiana [1975] 419 US 522 at p. 530:-

'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'.”

"That is true enough, but it must be said in today’s Ireland there is no better solution available. If every member of the jury had to be able to understand legal matters in the Irish language without the assistance of an interpreter, most of the people of Ireland would be excluded. That would amount to a violation of Article 38.5 of the Constitution, as the Supreme Court explained it in the case of de Búrca v Attorney General [1976] I.R. 38 and the State (Byrne) v Frawley [1978] I.R. 326."

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?
6.1 No real case was made which suggested that the general use of Irish or competence in Irish throughout the country as a whole had changed in any material respect between the decision in MacCárthaigh and today. It may be that conditions will change in the future but for the purposes of this case it does not seem to me that there is any legitimate basis for reviewing the overall conclusions reached in MacCárthaigh. It follows that it remains the case today that, as Hamilton C.J. put it in a passage already cited, "if every member of the jury had to be able to understand legal matters in the Irish language without the assistance of an interpreter, most of the people of Ireland would be excluded". The real question which must be addressed, therefore, in my view, concerns the fact that the offence alleged against Mr. Ó Maicín occurred in the Gaeltacht and involved, at least as its principal protagonists, Irish speakers. In those circumstances is it possible to distinguish MacCárthaigh and reach a different conclusion? Put another way, Hamilton C.J. said that "In today's Ireland there is no better solution available". The question which must be asked is as to whether there is a better solution at least in relation to cases having a close connection with the Gaeltacht?

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:-

"An illustration of the inherent difficulty is afforded by a trial conducted last year before a jury, each member of which expressed preference for taking the oath in Welsh. During the hearing, the Welsh evidence was translated into English. It was later learnt that, while all the jurors said that they understood Welsh, eight of their number considered that such translation had been necessary, four that it had not. One juror who had even passed the School Certificate with oral proficiency in Welsh said that his understanding of the evidence given in Welsh was improved by its translation into English, as those participating had spoken Welsh of such a high standard."

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
7.1 For those reasons, I am satisfied that Mr. Ó Maicín enjoys a constitutional right to conduct official business fully in Irish. However, that right is not absolute and may have, in some circumstances, to give way to considerations, deriving from the significant number of persons (even in Gaeltacht areas) who would not have sufficient competence in Irish, to the need to respect the rights of others to use English as an official language and to the competing constitutional imperative that juries be truly representative.

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.