Judgment
Title: | Ó Maicín -v- Ireland & ors |
Neutral Citation: | [2014] IESC 12 |
Supreme Court Record Number: | 292/10 |
High Court Record Number: | 2009 751 JR |
Date of Delivery: | 02/27/2014 |
Court: | Supreme Court |
Composition of Court: | Hardiman J., O'Donnell J., Clarke J., MacMenamin J., O'Neill J. |
Judgment by: | O'Neill J. |
Status: | Approved |
Result: | Dismiss |
Details: | Judge O'Donnell concurred with Judge Clarke, Judge MacMenamin and Judge O'Neill. |
| Judgments by | Link to Judgment | Concurring | Dissenting | O'Neill J | | O'Donnell Donal J. | | Hardiman J. | | | | |
|
THE SUPREME COURT
[RECORD NO: 292/2010]
HARDIMAN J.
O’DONNELL J.
CLARKE J.
MACMENAMIN J.
O’NEILL J.
BETWEEN
PEADAR Ó MAICÍN
APPLICANT/APPELLANT
AND
IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, HIS HONOUR RAYMOND GROARKE AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of O’Neill J. delivered on the 27th day of February 2014
1. The appellant in this case has since infancy been a native speaker of the Irish language and although currently, according to his affidavit, resident in Salthill, Galway, much of his life was spent and lived in the Gaeltacht area in Co. Galway. He is charged with two offences which are to be tried before the Galway Circuit Criminal Court, as follows:-
(i) On 28th May, 2008 at Beal an Daingean, Leitir Moir in the District area of Doire an Fheich, District No. 7, he assaulted Martin Whelan causing him harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.
(ii) On 28th May, 2008, at Beal an Daingean, Leitir Moir, Galway within the District area of Doire an Fheidh, District No. 7, he did while committing an assault on Martin Whelan in the course of a fight produced in a manner likely unlawfully to intimidate another person, an article capable of inflicting serious injury, to it, a broken whiskey bottle, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990.
2. The victim of these alleged offences is also a native Irish speaker from the Connemara Fior Gaeltacht area of Co. Galway.
3. The appellant contends in these proceedings that he is entitled by virtue of his rights under Article 8 of the Constitution to present his defence to these charges in Irish and to have his case heard by a jury, all of whose members are sufficiently competent in the Irish language and indeed also English (a bilingual jury) to be able to hear and fully understand the evidence, the submissions and presumably the judges’ charge all given in the Irish language without the assistance of a translator.
4. The relevant facts and background to the case are fully set out in the judgments of my learned colleagues especially in the judgment of Hardiman J. and it is unnecessary for me to repeat all of that material here.
5. This case is the latest in what is now a long and voluminous line of cases concerning the rights of persons who wish to use the Irish language in the transaction of their business with the State and who demand that the State respond to them in the Irish language. These rights derive from Article 8 of the Constitution which is in broadly similar terms to a similar provision in Article 4 of the Constitution of Saorstát Éireann. Article 8 reads as follows:-
“(1) The Irish language as the national language is the first official language.
(2) The English language is recognised as a second official language.
(3) Provision may, however, 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.”
6. Whilst two official languages are designated, the Irish language is given a position of primacy as the “national” language and the “first” official language.
7. There has been much judicial consideration of the extent of the duty or obligation imposed upon the State in respect of the Irish language and the corresponding rights of the citizen who wish to use the Irish language. The leading judicial statements in this regard are those of Kennedy C.J. in O’Foghludha v. McClean [1934] I.R. 469; and Hardiman J. in Ó Beoláin v. Fahy [2001] 2 I.R. 279. In the former of these cases, the following passage from the judgment of Kennedy C.J. describes in surprisingly strong language, the extent of the obligation and duty resting on the State, at p. 483:-
“…The declaration by the Constitution that the National language of the Saorstát is the Irish language does not mean that the Irish language is, or was at that historical moment, universally spoken by the people of the Saorstát, which would be untrue in fact, but it did mean that it is the historic distinctive speech of the Irish people, that it is to rank as such in the nation, and, by implication, that the State is bound to do everything within its sphere of action (as for instance in State-provided education) to establish and maintain it in its status as the National language and to recognise it for all official purposes as the National language. There is no doubt in my mind but that the term ‘National’ in the Article is wider than, but includes, ‘official,’ in which respect only the English language is accorded constitutional equality. None of the organs of the State, legislative, executive or judicial, may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provisions of Art. 4…”
8. Article 4 of the Constitution of Saorstát Éireann of which Kennedy C.J. spoke is as follows:-
“The National language of the Irish Free State is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament of the Irish Free State for districts or areas in which only one language is in general use.”
9. It is to be noted that the primary position of the Irish language is, if anything, enhanced in the language used in Article 8 of Bunreacht na hÉireann where the Irish language is not only described as the “national” language but as the “first” official language of the State, whereas in Article 4 of the Constitution of Saorstát Éireann, it is not given that additional designation as the “first” official language.
10. Thus, it can be said that the imperative force of the obligation of the State described by Kennedy C.J. as emanating from Article 4 of the Constitution of Saorstát Éireann is repeated with added emphasis in the language used in Bunreacht na hÉireann.
11. In Ó Beoláin v. Fahy, Hardiman J. said the following:-
“…the Irish language which is the national language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in so doing in any national or official context.”
12. It would seem to me beyond doubt but that in the fulfilment of its obligations in respect of the use of the Irish language, the State, as said by Kennedy C.J. is “bound to do everything” within its range of competence to establish the use of Irish for all official purposes including in the sphere of the administration of justice.
13. Impediments which might justify the State in not providing for the use of Irish cannot be mere impracticalities. A choice by the State to withhold provision for the use of Irish on the grounds of administrative difficulty or impracticality would not suffice and would be in breach of the obligation of the State under Article 8 of the Constitution and would correspondingly risk breaching the rights of a citizen who chose to use the Irish language in his or her dealings with the State. I am of opinion that the standard or test to be applied where the State seeks to avoid provision for the use of Irish is one of non-feasibility or in other words that it is simply not possible in the given circumstances to make provision for the use of Irish as sought by a citizen.
14. It was submitted by the respondents that if the appellant’s proposed solution, namely the creation of a jury district to correspond with the selected electoral divisions west of Spiddal in Connemara were to be implemented, that would create the anomalous situation whereby rights derived from Article 8 of the Constitution would have a materially or substantially different effect or application depending upon what part of the country a citizen sought to exercise those rights. Thus, in Dublin or indeed many other parts of the country pursuant to the authority of MacCárthaigh v. Éire [1999] I.R. 200, a person charged with criminal offences triable by jury would not be entitled to a jury, all of whose members were competent in Irish, but a person charged with the same offences, where the jury was to be selected from the appellant’s proposed jury district, would have a right to an all Irish speaking jury.
15. As a general proposition it can safely be said that rights derived from the Constitution, unless the Constitution itself expressly provides to the contrary, are the same throughout the jurisdiction in which the Constitution and the law have effect. Article 8.3 does make provision for the exclusive use of either official language in different parts of the country or for different purposes or both. A law enacted under the aegis of this provision could have the effect of limiting or indeed denying in the circumstances provided for, the right under Article 8(1) or (2) to the use of either official language in the part of the country prescribed or for the purposes as set out in any such legislation. No such legislation has ever been enacted and therefore Article 8.3 has no application to this case. Indeed, it could be observed that the demand by the appellant in this case for a bilingual jury is fundamentally different to what is envisaged in Article 8.3, namely providing for the exclusive use of either official language.
16. I do not see that what is sought by the appellant postulates a difference in the nature and content of the rights which the citizen enjoys under Article 8. Rather, it seems to me that any difference of treatment in different parts of the country is to be seen as deriving from the obligation of the State as described by Kennedy C.J. in the O’Foghludha case, “to do everything within its sphere of action” to make provision for the use of the national and first official language. Having regard to the fact that the usage of the Irish language, in the life of the community is quite different in different parts of the country, it necessarily follows that what the State may be expected to do in the discharge of its duty will vary according to the circumstances prevailing in different parts of the country. The setting up of Gaeltacht areas as provided for by statute, where Irish was to a greater or lesser extent the spoken language of the community is an example of the discharge of that duty. It was to be expected that in the provision of the myriad services by the State in areas, particularly Gaeltacht areas, where a very large part of the community use Irish as their daily language, that the personnel providing the services on behalf of the State would do so through the medium of Irish, as is in fact the case. Could it reasonably be suggested that the lanquage requirements of citizens of the Fior- Gaeltacht in Connemara, were to be dealt with on the same basis as the citizens of South Co. Dublin. In my view, it is beyond argument, that in the discharge of its duty under Article 8, the State is obliged to respond to the linguistic requirements to of its citizens, in different parts of the country, in different ways, and where a substantial part of the community use Irish as their daily language it necessarily follows that the State must respond accordingly and is obliged to provide services in those areas through the medium of Irish. In other parts of the country where there is very little use of the Irish language, it would be pointless and indeed artificial for there to be a similar obligation or duty.
17. If it were to be the case that the obligation of the State under Article 8 and the corresponding rights of the citizen were to be the same throughout the jurisdiction of the State, that would have the wholly unintended consequence of reducing the obligation of the State and correspondingly the rights of the citizen to a standard commensurate with the lowest level of use of Irish in any part of the State. This clearly would have the effect of emptying Article 8 of all of its meaning and substance and manifestly would be the direct opposite of the description of the duties and obligation of the State as contained in the crystal clear words of Kennedy C.J. in the O’Foghludha case.
18. On this aspect of the case, namely the extent of the obligation or duty resting upon the State to make provision for the use of Irish where a citizen demands this, I am essentially in agreement with the judgment of Hardiman J.
19. The appellant’s case is that a jury, all of whose members are sufficiently competent in the Irish language can be provided in this case, if that jury is selected from a jury district, the boundaries of which are redrawn so as to confine that jury district to a portion of the Gaeltacht stretching from west of the village of Spiddal, Co. Galway into Connemara. Such a jury district, confined to a selected number of electoral divisions in which the use of Irish as the daily language of the community is very high, namely in excess of 85% of the population, would, the appellant contends yield a jury, randomly selected, which would be broadly or fairly representative of the community as a whole and would be in accordance with the principles as set out by the Supreme Court in the cases of de Búrca v. Attorney General [1976] I.R. 38 and the State (Byrne) v. Frawley [1978] I.R. 326, as the necessary basis for a jury which is a fair representation of the community as a whole, as required by Article 38 of the Constitution.
20. The respondents resist the relief claimed by the plaintiff on the basis that it would be an impermissible interference by the courts in the exercise of a discretion by the third named respondent, I would reject that submission on the basis that what is at stake here is the vindication of a constitutional right and if the redrawing of a jury district boundary was the only means of vindicating that right, I would have no hesitation in concluding that the Minister’s discretion would have to be exercised so as to vindicate the constitutional right otherwise in jeopardy.
21. In support of their submission in this regard, the respondents rely upon the case of the State (Sheehan) v. Government of Ireland [1987] I.R. 550. In my view, this case is to be distinguished for two reasons. Firstly, the question for determination in the Sheehan case turned on an issue of statutory interpretation and in that respect, the court construed the relevant section of the Civil Liability Act 1961, as giving the Minister in that case an unfettered discretion as to when to commence the provision of the Civil Liability Act, abolishing the exclusion of liability of local authorities on the basis of the nonfeasance rule. There is no issue of statutory interpretation involved in this case. Secondly, in the Sheehan case there were no constitutional rights involved, which the State had a duty to vindicate, unlike this case. I am in agreement with the judgments of Hardiman J., Clarke J. and MacMenamin J. on this aspect of the case.
22. The appellant’s case in this regard is based upon the evidence on affidavit of Conchúr Ó Giollagáin, a university lecturer who holds a doctorate in modern Irish from University College Dublin and is an expert and lecturer in Sociolinguistics and in language planning in NUI Galway.
23. The affidavit is a short one and as it succinctly expresses the evidential basis of the appellant’s case, I quote it in full:-
“2. I have published a lot of research on the use of the Irish language in the Gaeltacht. I was joint author of the comprehensive linguistic study of the use of Irish in the Gaeltacht: principal findings and recommendations (Ó Giollagáin and McDonnacha, National University of Ireland, Galway, and National University of Ireland, Maynooth, 2007)…commissioned by the Department of Community, Rural and Gaeltacht Affairs and which is marked COG and which I signed before making this oath.
3. As is clear from that study there are communities in Co. Galway in which there are a high number of people, of both genders in every class, who speak Irish on a daily basis in district A and this is the case for more than 67% of the community. In the case of Co. Galway, District A stretches from east of the village of An Spidéal to An Caiseal in western Connemara in some of the electoral divisions where more than 90% of the community are daily speakers of Irish. District A has a population of 13,444.
4. From an ability prospective (rather an usage) the percentage of Irish speakers in District A is even higher i.e. more than 85% and more than 90% in some parts.
5. The district in question includes two villages, i.e. An Spidéal and An Cheathrua along with rural areas. A diverse, multi-class, multi-prospective community live there, including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fisherman, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and unemployed people.
6. If twelve people were chosen randomly from the district, from the list of voters for example, more than 85% of them would be able to understand evidence given in Irish or in English during a trial without the assistance of an interpreter and I believe that twelve people chosen as such would be as representative of the district in question as twelve people chosen randomly from the votes of any district in the country who would understand evidence in English.”
24. In the study referred to by Mr. Ó Giollagáin at Chapter 3 under the heading Language Communities in Contemporary Gaeltacht and under the subheading Category A Gaeltacht Districts, the following is said:-
25. Further on in this study there is a table under the heading 3.3.1 The Reclassified A, B and C Gaeltacht Category Districts. This table sets out a list of electoral divisions in which a very high proportion of the population over the age of three are daily Irish speakers. The percentage of the population who are daily Irish speakers in these electoral divisions in Co. Galway range from a high of 92.29% to a low of 52.632%. If one adds up the total population over three years of age in these electoral divisions, it comes to 12,683. The number of daily speakers of Irish in the same electoral divisions amount to 10,613. This means that in the selected electoral divisions with the highest use of Irish on a daily basis, 83% of the population in these districts had the necessary competence to use Irish as their daily language and by necessary inference 17% do not. It must be further borne in mind that the populations considered in these studies include persons over the age of 70 who, of course, are ineligible for jury service and also persons between the ages of three and eighteen likewise ineligible. It would seem to me to be probable that the population over the age of 70 in these electoral divisions contribute disproportionately to the pool of daily Irish speakers and if it were possible to extract the over 70s from the study, it is likely that the percentage of daily Irish speakers would drop significantly.
26. This leads me to infer that as a matter of probability in these selected electoral divisions, the pool of Irish speakers that would be available for jury service would be less than 80% of the full community available for jury service.
27. Certain consequence inevitably flows from this. Firstly, a jury randomly selected from these electoral divisions would, as a matter of high probability, have at least one member who is not competent in the use of the Irish language and would therefore require the assistance of a translator. This of itself would defeat the objective sought to be achieved by creating a jury district confined to the electoral divisions mentioned. Thus the remedy proposed by the appellant would be ineffective in achieving the desired result.
28. In order to get twelve jurors out of this pool, who are fully bilingual or at the very least fully competent in Irish, it would be necessary to adopt some kind of procedure to exclude those who lack competence in Irish. The Juries Act 1976, makes no express provision for such an exclusionary procedure. In his judgment, Hardiman J. refers to the consultation paper on juries service prepared by the Law Reform Commission (LRC CP61-2010) where the following passage appears at pp. 112 – 113:-
“…while there is no express English language requirement in order to be eligible for jury service, Courts Service staff dealing with jurors and county registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language.”
29. The suggestion which inevitably arises from this, is that if there is a practice or procedure whereby persons who are not competent in English, are excluded from jury service would it not be appropriate that there should be such a procedure to exclude persons who are not competent in the Irish language from service on the jury which will try the appellant.
30. It is apparent that there is no express provision for such a procedure in the Juries Act 1976. It would seem to me that a s. 9(2) of the Juries Act would provide an adequate legal basis for such a practice, assuming that its terms were complied with. It reads as follows:-
“(2) A county registrar may excuse any person whom he has summoned as a juror from attendance during the whole or any part of the sittings in question if that person shows to the registrar's satisfaction that there is good reason why he should be so excused.”
31. With the entry into Ireland in recent years of very large numbers of immigrants and as these persons become embedded in the community and in due course registered as electors, it is not surprising that some of these would be summoned as jurors and no doubt in response to these summonses, be likely to bring to the attention, of county registrars and their staff, the fact that they lack competence in the English language. In my view, the inability to understand the language in which a case is likely to be tried would undoubtedly be a “good reason” for the excusing of that person from service as a juror.
32. If such a practice can operate lawfully to exclude persons who lack competence in English from serving on a jury could it not also be lawfully used to excuse persons who lack competence in Irish in the appellant’s case, to ensure that all twelve jurors were competent in Irish? In the case of the exclusion of persons who lack competence in English it would be extremely unlikely that the numbers of such exclusions in the context of the overall jury pool, would significantly or at all, affect the cross community character of the jury pool. It is very likely that notwithstanding such exclusions the jury pool would still be a fair representation of the entire community and therefore there would be no breach of the representational standard required by Article 38 of the Constitution.
33. On the other hand, the exclusion of 20% approximately, of the potential jury pool on the basis of inability to speak or understand Irish would indeed involve the exclusion of a large segment of the community i.e. those who did not speak Irish and would, in my opinion, be a breach of the cross community representation principle enjoined by Article 38. Thus, it would not, in my opinion, to be lawful to use s. 9(2) of the Juries Act for that purpose.
34. In passing I should say that the necessity for the Tribunal of Fact to be competent in the language used in the trial, is not just a “language rights” requirement but is a necessary incident of a fair trial demanded by Article 38 and an essential ingredient of the right of an accused person to a fair trial. It follows, in my view, that the Juries Act 1976, must be construed consistent with the foregoing and the absence of any express provision in the Act providing for exclusion on the basis of an linguistic inability, does not prevent other provisions of the Act where appropriate, for example, s. 9(2), being used for that purpose.
35. Perhaps, because of the homogeneity of the Irish community in 1976, it was unnecessary to make express provision for this kind of exclusion. It may also have been considered so axiomatic, that exclusions on the basis of inability to speak the language of the trial were so obviously necessary and appropriate as perhaps to require no express statutory provision.
36. In short, therefore, I am of opinion that the remedy of creating a jury district as contended for by the appellant would be either ineffective to provide twelve Irish speaking jurors without the exclusion of non-Irish speaking jurors, and such exclusion having regard to the large portion of the jury pool to be excluded, would breach the constitutional requirement for a jury representative of the community. Therefore, it is not feasible in this instance for the State to provide the appellant with a jury all of whose members are sufficiently competent in the Irish language as to be able to try the case without the assistance of a translator.
37. It is to be noted and in this respect I agree with what is said by Clarke J. in his judgment, in that if one reduces the jury pool to the size contended for by the appellant, it is inevitable that within this very small jury district many people would have personal connections to either the appellant or the victim of the alleged assault or with witnesses in the case and could not serve as jurors. In all jury trials, in the jury selection process, it is commonplace for persons to be excused because of their personal connections to people involved in the case. Where you have all of the electors in a county available to draw from, the problem of personal connections has little or no significance in the process of jury selection. However, in the jury district as contended for by the appellant, these problems would undoubtedly loom large and could pose a very serious practical problem in assembling a jury. In this respect, I agree with what is said by Clarke J. in his judgment. It is a further factor weighing against the relief claimed by the appellant.
38. For all of the reasons set out above, I have come to the conclusion that the appellant has failed to demonstrate that it is feasible for the State in the circumstances of this case to make provision for a jury all of whose members are competent in the use of Irish. Accordingly, I am satisfied that this case, cannot be distinguished from McCarthy v. Éire and therefore I would disallow the appeal.