JUDGMENT of Mr. Justice Hardiman delivered the 27th day of February, 2014.
This is the plaintiff’s appeal against the judgment and order of the High Court (Murphy J.) delivered 14th May 2010, whereby his claim to be entitled to a trial before an Irish speaking jury was dismissed. Irish is the national and first official language of the State. The plaintiff lives in Galway and the offences charged are said to have been committed in the adjacent Connemara Gaeltacht.
Overview.
Peadar Ó Maicín, the appellant in this case, is a citizen of Ireland who lives in Galway. He is a native speaker of the Irish language, that is Irish is his first language and he has spoken it continuously since he was able to speak at all. He subsequently learned English. He was reared and educated in Rosmuc in the Connemara Gaeltacht. The special status of a Gaeltacht in Irish law is discussed below.
This case concerns Mr. Ó Maicín’s entitlement to use the Irish language in an important interaction with the State. Mr. Ó Maicín has been charged with two offences in the nature of assault. They are not offences of the highest level of gravity, but they are not minor offences either. They each carry a sentence of up to five years imprisonment. Mr. Ó Maicín is pleading not guilty to these offences. On the motion of the Public Prosecutor, the Director of Public Prosecutions, he has been returned for trial to the Circuit Criminal Court for the Western Circuit. His trial will take place before a judge, who will arbitrate all questions of law which may arise, and a jury which will decide all questions of fact which will arise.
Pursuant to Article 38.5 of the Constitution of Ireland, a trial of any offence other than a minor offence must take place before a jury. There are certain exceptions to this, but none of them arise in the present case.
Mr. Ó Maicín has said that he will defend the case brought against him and will do so in the Irish language. It is not disputed that he is entitled to do this. He further asserts a right that the trial should take place before a judge and jury capable of understanding him directly in the Irish language.
On the face of it, and having regard to provisions of Irish law in relation to official languages, this appears a reasonable request. But the State object to it on two grounds. These are:
(a) It is impossible to provide a jury capable of understanding the case directly (i.e. without an interpreter) in the Irish language.
(b) The provision of a jury capable of understanding the case in the Irish language, even if otherwise possible, would require the imposition of some sort of test of competence in the Irish language. The State say that this in itself is a legal impossibility in Ireland because of the need for a jury to be selected by a random process, which requirements according to the State renders it impossible to impose any test or qualification, whether a language test or otherwise.
This latter point was the basis on which Mr. Ó Maicín lost his case in the High Court.
The status of the Irish language (1).
Ireland became a State independent of Great Britain in 1922. Immediately upon the achievement of independence, in the first Constitution adopted in the same year, the new State adopted the Irish language as its principal official language. This was expressed in the following words:
“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 provision being made by the Parliament of the Irish Free State for districts or areas in which only one language is in general use”.
Fifteen years later, in 1937, a new Constitution was adopted. This had a number of provisions of great relevance to the present case:
Article 4
“The name of the State is Éire, or, in the English language, Ireland.”
Article 5
“Ireland is a sovereign independent democratic State”.
The National language and the official languages.
“8(1) The Irish language as the National language is the First Official Language.
8(2) “The English language is recognised as a Second Official Language.
8(3) Provision may, however, be made by law for the exclusive use of either of the said language for any one or more official purposes, either throughout the State or in any part thereof”.
No such law as is permitted by Article 8.3 has ever been enacted. That sub-article was not relied upon in the argument on the hearing of this appeal.
The question of Irish in European Law and of Public Policy on Irish in Ireland and Europe are dealt with in Appendix II.
A number of very important aspects of this Action are, as lawyers say, “common case”. That is, they are agreed by both sides. It will help in understanding what follows to set out some of these agreed features now, even though it will be necessary to return later to explore the full legal and constitutional significance of them.
(1) The factual evidence of the appellant and of his expert witness, Dr. Ó Giollagáin, which was put before the Court on affidavit, is entirely uncontradicted. The contents of these affidavits must therefore be taken to be true.
(2) By Article 8 of the Constitution, Irish is the national and first official language of Ireland. English is recognised as “a second official language”.
(3) Certain areas of the country are designated as “Gaeltacht”. This word derives from the Irish word Gaeilge, the Irish language. A Gaeltacht is an area especially designated for the use and preservation of the Irish language. The legal nature of a Gaeltacht in statute law is extensively discussed below.
(4) The offences with which Mr. Ó Maicín, the appellant in the present case, is charged were allegedly committed by him in the Connemara Gaeltacht, an extensive area west of the City of Galway which is the largest and most populous Gaeltacht area in the State. Mr. Ó Maicín was reared and educated in that area. He is a native Irish speaker, that is a person who has spoken Irish since he has been able to speak at all, and who mastered English only much later in life. The offences are in the nature of assaults and the alleged victim is also a gaelgóir.
(5) In terms of Irish law, the offences charged are “non-minor” ones. As the defendant is pleading not guilty to these charges, they require to be tried before a judge sitting with a jury. See Article 38 of the Constitution.
(6) This latter point provides the basis of the State’s defence in the present case. It is not disputed that the Connemara Gaeltacht could be made into a jury district by ministerial order under the Juries Act 1976, or that such a district could produce a properly representative jury able to understand an Irish speaker directly, without an interpreter.
(7) It is equally undisputed, however, that no such ministerial order has been made. Amongst the reliefs sought by the appellant is an order directing the Minister to bring such a jury district into being. The State say, however, that this is beyond the power of the Court.
(8) The indictable offences with which the appellant is charged will be tried in the Circuit Criminal Court for the relevant Circuit, here the Western Circuit. The case has already been before the Circuit Criminal Court, consisting of a judge alone, for preliminary applications. An elaborate application as to the language of the case has already been heard in that Court, and this is described in some detail below. On that occasion, the prosecution expressed itself in English and the defence in Irish. There was an interpreter who translated what was said in Irish into English. It is un-contradicted that there were many deficiencies in the interpretation on that occasion. An interpreter was thought necessary for the hearing of that application, even in the absence of a jury.
(9) It transpired on the hearing of this appeal that there are no legislative provisions requiring a person summoned to serve as a juror to have, or to demonstrate, competence in either of the official languages of the State. That is, there is no express statutory requirement that a juror in, for example, Dublin, summoned to hear a case where all the evidence and argument will be in English, should be competent to understand English. Likewise, there is no express statutory requirement that a juror in a case where one or both parties intend to express themselves in Irish, should be able to speak or understand Irish.
This is an extraordinary state of affairs and one which requires urgent legislative attention.
But its relevance to the present case is that it has been stated by the Law Reform Commission that potential jurors in English speaking areas who, it is suspected, cannot understand sufficient English to do their duty properly are identified and filtered out by County Registrars and Court Service staff. This is done informally, without a specific legal mandate.
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The significance of this last point is that, as will be seen, the appellant was refused relief in the High Court (Murphy J.) on the ground that it was legally impossible to impose a linguistic test on jurors. But it is manifest that this very thing is done in the interest of producing a jury all of whose members can understand English. On the hearing of this appeal the State made no comment whatever on this state of affairs. They did not, however, contradict what the Law Reform Commission had said.
I wish to make it quite clear that I do not accept that a jury can lawfully include, or be composed of, persons unable to understand the lawful language of the case which the jury is to try. In Ireland, such lawful language can only be Irish or English.
The guarantee contained in Article 38.5 of the Constitution is that:
“… no person shall be tried on any criminal charge without a jury”.
The jury in a criminal case is not a mere decorative appendage or an assemblage of persons merely to witness a trial. The defendant is tried by the jury. The jury, of course, is bound to accept the Judge’s direction on all issues of law but the facts are entirely within the jury’s sphere and neither the Judge nor anybody else can override them. That is the meaning of trial by jury. The jury are the Judges of the facts of the case.
It would be ludicrous to imagine a judge presiding over and giving judgment in a trial conducted in a language which he could not understand. Equally, it is ludicrous to imagine a jury trying the factual issues, which are established by the evidence of witnesses, in a language which they cannot understand.
The following aspects of trial by jury in Ireland appear to me to be self evident:
(1) A trial in Ireland must be conducted in one or other of the languages recognised in the Constitution as being “the national and first official language” (Irish) or the language “recognised as a second official language” (English).
(2) The Judge at any such trial must be able to understand the language of the case, being one or other of the two languages mentioned at the preceding paragraph.
(3) The jury, which is to try all issues of fact in the case and resolve conflicts in the evidence of witnesses, must be able to understand the language of the case as defined above.
(4) A trial conducted before a judge, a panel of judges, or a jury, as the case may be, all or some of whom do not understand the language of the case, cannot be described as a trial “in due course of law” as required by Article 38.1 of the Constitution.
(5) Where the defendant in a criminal trial is incapable of understanding and expressing himself in either of the official languages of the State the proceedings must of necessity be translated to him by a duly qualified interpreter. But, for the reasons set out later in this judgment and relating to the standing of the two official languages of the State, a person charged before a court by the statutory public prosecutor is entitled to have the proceedings held in whichever of the official languages he chooses.
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Bilingualism.
For the reasons set out below, the effect of Article 8 of the Constitution is to establish Ireland as a bilingual State in terms of the Constitution and the laws. It is a historical truism that official Ireland has always been reluctant to behave as if the State were indeed, in law and in practice as well as in constitutional theory, a bilingual State. But that does not take from the fact that Ireland is, by its Constitution, a bilingual State. The Judges, of course, are bound to uphold the Constitution.
Canada is the prime example of a country, whose majority language is English, and which is in terms of its Constitution and laws a bilingual State. Unlike Ireland, however, the bilingual status of Canada has been treated seriously, not merely in law but in practice as well. Particularly since the adoption of the Canadian Charter of Rights in 1982, Canada is a country very comparable to Ireland in legal terms and the decisions of its courts are increasingly cited to us by litigants including the Irish State itself. See, for example, C.C. v. Ireland [2008] 4 LRI.
It is, therefore, more than interesting to consider the remarkable efforts of the Canadian State to be bilingual in practice as well as in theory even in parts of the country where there are very few, or virtually no, French speakers. Because, of course, this case must be decided in terms of the Irish Constitution and Laws, the Canadian citations are not directly relevant, and could not be more than persuasive. For these reasons I have, in the main, relegated the general account of legally and constitutionally mandated bilingualism in Canada to an Appendix. If nothing else, it gives the lie to any suggestion that the convening of an Irish speaking judge would be “impossible”.
Although the plaintiff/appellant’s case has been put in a number of independent ways, set out below, it is fundamentally a case about his language rights.
The plaintiff is an Irish citizen, a native speaker of the Irish language and a person who was reared and educated in a Gaeltacht. He is presently charged with two serious criminal offences, committed, it is alleged, in the Gaeltacht and against another Irish speaking resident of that area.
The question is, whether the plaintiff entitled to defend himself in those criminal proceedings in his native language and before a tribunal which will understand him directly, without the interposition of an interpreter.
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Ireland, like most Western countries, has in recent decades become a great deal more diverse, less homogenous than it used to be. It is less homogenous in language terms, as well as in other ways, than our parents’ generation could possibly have imagined. In 2011, the Courts Service had to provide for interpretation in 6,800 separate court proceedings from and into sixty-five languages, at no little expense. These languages include, prominently, Polish, Lithuanian, Romanian and several dialects of Chinese, some of which are not mutually comprehensible with other dialects of the same language. The figures quoted are taken from the Court Services Annual Report, 2011, Chapter 2 under the heading “Our Achievements” p.15.
The question raised by this case is as to whether a native speaker of Irish, who has been charged by the Public Prosecutor with serious criminal offences allegedly committed in the Gaeltacht where he was raised, is entitled only to the same language rights before the Irish Courts as are granted to a speaker of Chinese or a Nigerian language, to instance some languages at random. Or is he, as he maintains, entitled to use his native tongue, which is the national and first official language in defending himself before a tribunal who will understand him directly in that language, in a trial in an Irish Court established under the Constitution of Ireland? The incomer, of course, has well-entrenched rights to fair procedure and to equal treatment, guaranteed in both Irish and European law. But the appellant has, in addition, the language rights flowing from Article 8. This case is about whether these rights have any real meaning.
The Irish language in the Constitution.
The answer to this question does not depend on the private opinion of the Judges asked to decide it about the desirability or the feasibility of the widespread use of the Irish language for official purposes. It depends, rather, on the interpretation of the Constitution and the laws of Ireland which the judges, like the legislature, the executive, and the citizens, must take as they find them. If a government no longer wishes to be bound by the words of the Constitution as it is, that government is in a uniquely strong position to promote a change in those words. But, until then, the government must abide by the terms of the Constitution, just as it expects the ordinary citizen to obey the law. The Constitution is binding law, which binds the Government and the Legislature as much as the humblest citizen.
This Constitution provides at Article 4 that:
“The name of the State is Éire, or in the English language, Ireland”.
The character of the State is set out in the following article:
“Ireland is a sovereign, independent, democratic State”.
The position of “The National Language and the Official Languages” is set out at Article 8 of the Constitution, on which the plaintiff in this case particularly relies. It provides:
“(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”.
Jurisprudence.
This Article, and its very similar predecessor, Article 4 of the 1922 Constitution which is set out above, has been the subject of judicial interpretation now for more than eighty years. It is sufficient for present purposes to quote two extracts from that large body of jurisprudence, one from a case towards the beginning, and one for a case towards the end, of that period.
In Ó Foghludha v. McLean [1934] IR 469, Kennedy C.J. said:
“… the State is bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language”.
And a little later:
“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 provision of Article 4”.
In Ó Beoláin v. Fahy [2001] 2 IR 279, the constitutional status of the Irish language was summarised as follows:
“… the Irish language which is a 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 doing so in any national or official context”.
It is of great significance in this case that the State defendants have not challenged or sought to depart from, this jurisprudence. On the contrary, in their written submissions, they specifically accept authorities.
Ireland has thus been constituted as a country with two official languages, the national and first official language and a second official language. It is thus legally constituted as a bilingual country. This was done, firstly in 1922 and secondly in 1937. In each case, the language provisions of the successive Constitutions of an independent Ireland represented an enormous change from the position which obtained under British Rule, prior to 1922. In an important language case under the old regime the proposition that Ireland was a bilingual country was absolutely negatived in strong terms by the Irish courts. I consider that it is important for the understanding of the constitutional provision to consider its historical background, and it may be instructive in other ways as well. This important background to the Constitution is set out in Appendix III.
The appellant, Peadar Ó Maicín, is a native Irish speaker who has spoken Irish since he has been able to speak at all. Though born in Dublin he was raised from infancy Ros Muc in the Connemara Gaeltacht, educated there and did not master English until his teens.
Mr. Ó Maicín is now before the Galway Circuit Criminal Court charged as follows:
(1) “That on the 28th May 2008 at Beal An Daingean, Liter Móir, in the District Court area of Doire An Fhéich, District No. 7, he assaulted Martin Whelan causing him harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997
and
(2) on the 28th May, 2008 at Beal An Daingean, Liter Móir, Galway within the said District Court area of Doire An Fhéich, District No. 7 he did while committing an assault on Martin Whelan in the course of a fight produce in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, towit, a broken whiskey bottle, contrary to s.11 Firearms and Offensive Weapons Act, 1990.”
Each of these offences carries a maximum sentence of five years imprisonment.
The place where the prosecution alleges these offences took place is in the heart of the Connemara Gaeltacht and is in the County of Galway. There is no dispute that it is a “Fíor Gaeltacht” (true or real Gaeltacht).
The plaintiff’s case.
The thrust of the plaintiff/appellant’s case is evident from the extracts from the Constitution cited above: he relies upon them in their ordinary and natural meaning. The State respondents do not deny the ordinary and natural meaning of these constitutional provisions. Instead, they say that those provisions cannot be interpreted as entitling the plaintiff to a Tribunal of Fact (a jury) that will understand him directly because it would be impossible in practice to procure such a jury. That is the solemn submission of the State after ninety years - three or four entire generations - of State education with the Irish language as a mandatory subject, throughout every child’s primary and secondary education, and for admission to the State’s National University system.
The Authorities also, quite independently, say that the decided cases on trial by jury have established that a jury must be selected by a random process and the legislation governing this process does not permit of the application of any test, whether based on the possession of property, or the attainment of any particular educational standard, or linguistic competence, whether in English or in any other language.
The State concede that it would be possible, under the existing statutory provisions, to constitute a jury district, in the large Gaeltacht area where this offence allegedly took place, which would be as capable of providing a jury competent in the Irish language as the present jury districts are to produce juries competent in the English language. But, they say, the power to do so is vested in the absolute discretion of the Minister for Justice and he has not thought fit to do so. He cannot, or should not, be compelled to exercise this power in any particular way, say the State defendants.
That is the case of the Authorities as it was argued in the written and oral submissions on this Appeal. It is important, having regard to subsequent developments, to note that there was no attempt by the State authorities to argue that the Court should depart from the interpretation of Article 8 of the Constitution to be found in the decided cases from Ó Foghluadha to Ó Beoláin. Specifically there was no attempt to argue that that Article merely required to state to “seek to encourage the use of the Irish language” or to argue for any other such vague and purely aspirational reading.
The Gaeltacht in Law.
Murdoch’s Dictionary of Irish Law (on-line) defines a “Gaeltacht” in Irish law as:
“[Irish speaking district] an area designated as an area for the preservation and usage of the Irish language as the vernacular language.”
By s.2 of the Ministers and Secretaries (Amendment) Act 1956, provision was made for the creation of Gaeltacht areas, details of which are to be contained in statutory orders made under the Act.
Section 2 stated as follows:
“2(1) For the purposes of this Act the Gaeltacht shall comprise the areas for the time being determined to be Gaeltacht areas by order under this section.
(2) The government may from time to time by order determine to be Gaeltacht specified areas, being substantially Irish-speaking areas and areas contiguous thereto which, in the opinion of the Government, ought to be included in the Gaeltacht with a view to preserving and extending the use of Irish as vernacular language.”
The Gaeltacht Areas Order 1956 (S.I. 245 of 1956) sets out the Gaeltacht area in County Galway, defining it by electoral divisions or parts of electoral divisions which, together, compose the Gaeltacht. In the case of any Gaeltacht, there are an enormous number of such divisions; those relating to the relevant one are set out below. It is clear that the place where the offences alleged above are said to have occurred is within the Gaeltacht as legally defined in the Statute Law of the State.
The electoral divisions which constitute the Connemara Gaeltacht are set out in Appendix V. The list is taken from the Schedule to the Statutory Instrument referred to above.
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The Gaeltacht Act 2012 continues the previous boundaries, providing at s.6:
“‘Gaeltacht area’ means an area that was before the passing of this Act determined to be a Gaeltacht area by order made under section 2 of the Ministers and Secretaries (Amendment) Act 1956 and continued to be such an area by section 7(1)”.
The Act of 2012 is, indeed, an example of the very curious policy sometimes followed in statutory draftmanship in Ireland. Section 5 of the Act of 2012 repeals s.2 of the Ministers and Secretaries (Amendment) Act, 1956 and also repeals, along with other Gaeltacht area orders, the Gaeltacht Areas Order 1956, cited above. But these repeals are effected by Sections in Part I of the Act and it appears that no Commencement Order has been made in respect of that part, or any of the Sections which compose it.
Even when these Sections are commenced, the status quo ante will be preserved by s.7 of the 2012 Act which provides as follows:
The appellant says that he is innocent of the offences charged and that he intends to plead not guilty and to defend the case. He intends and wishes to “prepare, arrange, administer and conduct his defence” in Irish. He says he believes that this is his constitutional right and that he wishes to do so on this basis and on the basis that Irish is the National language and the first official language of the State and that it is his own native language, which he would naturally use in a matter of great importance to him. He wishes to be directly understood in that language by the tribunal which tries him, being a Court constituted under Bunreacht na h-Eireann, which also constitutes Irish as the national and first official language.
Over and above that, he says that he will be at a disadvantage if he has to make his case through an interpreter for the benefit of the members of a jury who would or might not understand Irish, instead of talking to jury directly in his native language. The appellant agrees that he will permitted to make his case in his own language but says that, by reason of the refusal to him of a jury who can understand Irish he will not merely be at an actual disadvantage but will be “treated as a foreigner in his own country rather than as a person who speaks the first official language of the State”.
The prosecutor, the Director of Public Prosecutions, has not said in which of the official languages the prosecution case will be conducted. The applicant says, however, that on all occasions to date when the prosecution were represented before the trial Court their representatives spoke in English.
On the hearing of the application in the trial Court in relation to the applicant’s language rights, which is about to be described, the prosecution case was conducted in English and the defence case in Irish. The application was heard by His Honour Judge Groarke (as he then was; now The Honourable Mr. Justice Groarke, President of the Circuit Court), with the assistance of an interpreter. The applicant says, without contradiction, that the standard of interpretation on that occasion was very poor and that defence counsel (who is bilingual) frequently had to assist the interpreter. He says that if this standard of interpretation is replicated at the trial his case will be poorly interpreted to the jury and that he will be greatly disadvantaged and will not be treated fairly.
Application to the Circuit Court.
On the 23rd March, 2009, the appellant’s solicitor wrote to the D.P.P. seeking an official Irish version of the Book of Evidence. This letter was written just before the first listing of the case in the Galway Circuit Criminal Court. That letter also said:
“We note the custom of the prosecutor to prosecute in English [anyone] who chooses to undertake his or her defence through English.
For our client to receive a fair and just trial in comparison to those who are satisfied with using English for this purpose, it is necessary, in all cases, that the prosecutor has a knowledge of the Irish language and that the prosecution is conducted against him in Irish with, of course, permission granted to each witness to give evidence in whatever language they wish: in Irish or in English or in another language should they not have sufficient Irish or English.”
The diction of this letter as quoted above is in places rather odd, apparently because it is a direct translation of an original in Irish.
The Director of Public Prosecutions stated in the Circuit Criminal Court on the 29th May 2009 that he was prepared to supply the defendant with a Book of Evidence in the Irish language.
The applicant then proceeded to apply to the Circuit Court for:
This was an application made to the Circuit Court in an elaborate way, with extensive written submissions. The applicant also sought an order to record the evidence in the language in which it is given, as opposed to in translation.
After the hearing of this application the learned Circuit Court Judge stated that the trial would be heard before a bi-lingual judge and that the evidence would be recorded in the language in which it was given, but he refused the application for a bi-lingual jury. He did so on the basis that in order to provide such a jury it would be necessary to launch an investigation to ascertain that individual members of the jury panel were in fact bi-lingual and that such investigation was not permitted.
In ordering that the judge who would preside at the trial would be able to speak Irish Judge Groarke said he did so because interpretation “can be weak” and in order that the rights of the accused were vindicated, in that “every idiom and expression can be understood”. The learned Circuit judge also said that there was no danger that the applicant would not receive a fair trial and went on to say that since all the evidence in court is recorded electronically the evidence would be recorded in whatever language it was given.
It appears that the complainant in this case, the alleged injured party, is also a person from the Gaeltacht and an Irish speaker.
Judicial Review.
Subsequent to the application described above in the Circuit Court in Galway the applicant applied to the High Court for liberty to seek judicial review. This occurred on the 13th July, 2009. The appellant was given liberty to seek the following reliefs:
(1) A declaration that a bilingual jury i.e. a jury who would understand evidence given in Irish and in English without the assistance of an interpreter, from County Galway, would be a constitutional jury.
(2) A declaration that the appellant is entitled to be tried before a bilingual jury who would understand evidence given in Irish and in English without the assistance of an interpreter.
(3) An order of certiorari quashing the decision of His Honour Judge Groarke [whose contents is set out above].
(4) An order directing the Minister to take all necessary and/or convenient steps to ensure and facilitate a trial before a bilingual jury for the applicant, including specifying a new jury area in County Galway pursuant to s.5 of the Juries Act, 1976 and/or creating a new jury summons pursuant to s.12 of that Act.
(5) A declaration that the first second and third respondents have a constitutional obligation to provide an official translation in the first official language of the current Circuit Court Rules (S.I. No. 510 of 2001) along with their amendments, together with the amendments to order 86 of the Rules of the Superior Courts; the Rules of the Court of Criminal Appeal and are obliged to issue and provide each one of these for the general public including the applicant on terms no less advantageous than the terms under which the official English language was and is issued and provided.
(6) An Order of Mandamus directing the first and second respondents and/or the third respondent to issue and provide an official translation in the first official language of the current Circuit Court Rules along with their amendments [and the other documents mentioned above].
(7) A stay preventing the Director from proceeding with the case against the appellant until the conclusion of the judicial review proceedings.
Status of the Irish language (2).
Article 8 of the Constitution provides 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.”
It can be seen, therefore, that the Constitution affords a special, unique and paramount position to the Irish language, as did the Constitution of the Irish Free State of 1922.
Prior to the adoption of the present Constitution, Article 4 of the Saorstát Constitution provided:
“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”.
It is noteworthy that no such law as is envisaged in the last sentence of Article 8, and in the last sentence of the predecessor Article, has ever been enacted. Scholarly opinion on these provisions for exclusive use of one language is to the effect that they were enacted “to provide for the contingency of the entry of Northern Ireland into the State. See e.g. Kohn: The Constitution of the Irish Free State (London, 1932) at 124.
But whatever the reason for the inclusion of these provisions may be, it is clear that it is open to Dáil Eireann to enact, and the Government to propose, that one only of the official languages be used either throughout the State or in any part of the State. This has never been done. It appears to me, however, that only by a law of the kind envisaged in Article 8.3. can a person be debarred from the use of the Irish language, as a language in which he can speak and be understood, in a procedure as solemn, as quintessentially official, and as central to the nature of the State itself, as a trial before a jury in a court established under the Constitution, in respect of an offence alleged against a Gaelgóir in the Gaeltacht. That is all this case is about. This narrow focus is central to the case.
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In relation to legislation, the constitutional scheme set out in Articles 20 and 25 envisages that a Bill (other than a Bill expressed to be a Bill containing a proposal for the amendment of the Constitution) which is passed or deemed to have been passed by both Houses of the Oireachtas shall be presented by the Taoiseach to the President for signature and for promulgation as a law. Article 25.4.3 and 4 provide as follows:
It appears from the foregoing that it is the intention of the Constitution that the statute law of the State shall be equally available in each language. The most obvious reason for this is to allow for the ascertainment of what is, and what is not, lawful and to facilitate submissions in Irish in the Courts of Ireland.
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The first significant judicial treatment of the constitutional status of the Irish language in general is that of Kennedy C.J. in Ó Foghludha v. McLean [1934] IR 469. At the time this judgment was delivered the relevant constitutional provision was that of the Saorstát Constitution, quoted above. In Ó Beoláin v. Fahy [2001] 2 IR 279, I held at page 338 that the words of Kennedy C.J. are also applicable to Article 8 of the present Constitution. On that page, I set out a lengthy extract from the judgment of Chief Justice Kennedy with respectful approval. I re-iterate that approval here, without thinking it necessary to repeat the same material in this judgment.
This judgment of Kennedy C.J. appears particularly relevant in what it has to say about the significance of the designation of the Irish language as a National language:
“The declaration by the Constitution that the National language of the Saorstát is the Irish language does not mean 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… to establish and maintain it in its status 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 provision of Article 4.” (Emphasis added)
In the seventy-nine years since Kennedy C.J. spoke these words, they have never been reversed or doubted. The Court was not asked to depart from them in this case. This, too, is an essential feature.
I agree with what was said by Kennedy C.J. and consider portions of it, in particular, to have a direct relevance to the present case. In particular, I believe that the former Chief Justice was correct in stating that the Irish language is the National language not because its use is in fact universal but because it was freely deliberately and expressly adopted as such National Language by the People in two successive Constitutions. No doubt this adoption was made for the reasons summarised by Kennedy C.J. in the passage cited, but it is beyond dispute that Irish was in fact adopted as the National language. Its status as the first official language arises from its status as the National language. This is made perfectly clear in Article 8 of the Constitution by the use of the word “Ós”. This explanatory or reason-giving word indicates that the Irish language is the first official language since, or because, it is the National language.
It appears to me to be significant that the language is constitutionally established both as the National and the “First Official Language”. It might have been constituted merely as the “National Language” while providing (as in India) that the business of the National Parliament, and of the Courts of Law, would be conducted in English. But this was not done: the Irish language was constituted as both the National Language and as the First Official Language.
At the same time, the English language which was and is the vernacular language of the great majority of the People, was recognised “as a second official language”. The plaintiff appellant in these proceedings is not concerned to restrict the right of English speaking citizens to conduct their business with the State in that language, for instance to defend themselves in court proceedings in English and to be understood directly by the Tribunal of Fact in doing so. Indeed, he proclaims that right. But he equally asserts his right to do those very things in the Irish language and relies in that regard on what was said by this Court in Ó Beoláin v. Fahy to the effect that the Irish language “cannot… be excluded from any part of the public discourse of the Nation or the official business of the State or any of its emanations”.
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A significant divergence.
In this case I have the great misfortune to differ from my colleague Mr. Justice Clarke. A decent regard for the intellect and for the opinions of readers of these judgments makes it necessary to identify the precise basis of the difference.
The divergence between my approach and that of Mr. Justice Clarke is only partly to do with the constitutional and legal status of the Irish language.
Quite apart from that, and perhaps more fundamentally, it is to do with the techniques and principles applying to the interpretation of the Constitution itself, and of the resolution of constitutional litigation by adjudicating between the contentions of the parties, rather than by imposing a solution for which neither party was concerned to argue. Such resolution must also, of course, take account of the established jurisprudence of this Court, and not proceed as if the matter were res integra. There is in fact a well established body of case law which is clear, positive and specific on the subject of the duties of the State flowing from Article 8 of the Constitution. Neither party has asked this Court to depart from it.
It is important to note that the State defendants have met this case in a carefully restricted and confined way. They have not asked for the existing jurisprudence to be set aside; on the contrary, they have adopted it. At para. 25 of their written submissions they say:
Since, however, I consider this maxim to have a particular importance in the present case where one at least of the judgments goes far beyond what any party argued for, I propose to cite authority for a proposition so basic that, in the ordinary course of events, it scarcely needs such citation. In The State (Quinn) v. Ryan [1965] IR 70, at p.120, Ó Dálaigh C.J. said:
“It requires to be said that a point not argued is a point not decided; and this doctrine goes for constitutional cases (other than Bills referred under Article 26 of the Constitution and then by reason only of a specific provision) as well as for non-constitutional cases.”
I am most concerned that certain of the findings to which I am about to draw attention were not argued for or in any way supported by the State defendants. I am concerned that the effect of my colleague’s conclusions is drastically to dilute, to “write down”, the well established legal and constitutional status of the Irish language, and the rights of Irish speakers in general, in a case where neither party has requested this. And this is done without explicit dissent from the cases about to be cited, as well as without request or argument.
I am further and separately concerned that the effect of my colleague’s judgment is to undermine the constitutional and legal bilingualism of the Irish State.
I welcome, of course, certain dicta of Mr. Justice Clarke such as his declaration, in para. 3.5 of his judgment:
“That the State has a constitutional obligation to respect the language wished of a citizen who wishes to use Irish in their communications with the State or its agencies, cannot be doubted”.
Similarly, at para. 3.7, my learned colleague says:
“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”.
The dicta quoted above are not alarming in themselves, even though the first of them is entirely vague and the second is immediately followed by “However…”. But they are immediately qualified out of existence. These qualifications appear to me quite inconsistent with the principal dicta of the established jurisprudence, quoted above. For example, consider the seventy-nine year old dictum of Chief Justice Kennedy in Ó Foghludha v. McLean [1934] IR 469:
“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 [Constitution].”
Chief Justice Kennedy also declared:
“… that the State is bound to do everything within its sphere of action… to establish and maintain (the Irish language) in its status as the national language and to recognise it for all official purposes as the national language.”
This naturally leads to the conclusion, as it was expressed in O Beoláin v. Fahy, cited above:
“… the Irish language which is the national language… cannot… 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.”
I cannot find that the language and the conclusions of these cases is in any way reflected in the judgment of my learned colleague. On the contrary, once the strong statements cited above are made, they are immediately qualified, almost out of existence. Thus, at the very start of the judgment, at para. 1.1, it is declared that:
This passage, it seems to me with the most genuine respect, introduces a vagueness and lack of precision in the precise status of the Irish language and the precise rights of those who wish to use it which:
(a) is an enormous dilution and a marked writing down of that status and those rights as they have been established in the existing jurisprudence epitomised in the two cases mentioned above.
(b) is done without the Court having been asked to do it by the State respondents and for that reason, I must very diffidently suggest, does it improperly, and
(c) is done with insufficient regard to the fact that Article 8.3 expressly permits the legislature to provide “by law” for the exclusive use of one or other of the official languages for any official purposes, either generally or in some part of the State.
It follows that that any alteration in the state of bilingualism mandated by Articles 8.1 and 8.2 of the Constitution must be effected “by law” and not by a judicial decision, particularly one which has not been sought by any of the parties. To provide that something may be done “by law” (“le dlí”) means that it must be done by the Oireachtas because “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas…” (Article 15.2), and that it cannot be done otherwise.
The vagueness and imprecision of the passage cited above, which refers to “some obligations on the State and certain language rights, is continued in the most substantive portion of Mr. Justice Clarke’s judgment, at para. 3.5:
“There is a clear constitutional obligation on the State to encourage the use of Irish for official business…”.
Clarke J. continues, with admirable frankness:
“It does not seem to me that the general obligation of the State can, therefore, be put any higher than an obligation to ‘encourage’.”
This, indeed, is the nub of the matter as far as the status of the Irish language and the rights of Irish speakers is concerned. I will in a moment discuss the reasons which have led my learned colleague to the conclusion just quoted but it must be apparent that his proposal to put the general obligations of the State in relation to the Irish language no higher than an obligation merely “to encourage”, is a major departure from the existing jurisprudence, epitomised above. It is also a departure which the Court was not invited to make.
The reason given by Mr. Justice Clarke’s conclusion quoted above is also stated with very frankly and clearly in the same paragraph:
“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 amongst the general population.”
There is nothing expressed, either in the submissions of the appellant, or in this judgment, to suggest that there is the slightest obligation on the part of the State towards any form of compulsion, “quasi” or otherwise. But Mr. Justice Clarke says that once the obligation on the State is put at a higher level than an obligation merely to “encourage” the use of Irish, there is an implication that there is a constitutional imperative to quasi compulsion.
The implication which Mr. Justice Clarke discovers in the existence of any duty to Irish speakers above the level of “encouragement” of something which would lead to what he terms quasi compulsion is, I suppose, the pons assinorum of his reasoning. I have to confess immediately that it is not a bridge that I can cross. I do not believe for a moment that, in the finding that Mr. Ó Maicín is entitled to be judged by a Tribunal of Fact which can understand him directly in his native language, which is also the national and first official language of his country, there is even the slightest suggestion or implication of a constitutional imperative to quasi compulsion, or any kind of compulsion whatsoever.
I must make unambiguously clear my view that this is simply not true in law, in logic, or in the terms of the pleadings and arguments in this case. As I have observed earlier in this judgment:
“At the same time [the time of the adoption of Article 8 of the Constitution], the English language which was and is the vernacular language of the great majority of the People, was recognised ‘as a second official language’. The plaintiff appellant in these proceedings is not concerned to restrict the rights of English speaking citizens to conduct their business with the State in that language, for instance to defend themselves in court proceedings in English, and to be understood directly by the Tribunal of Fact in doing so. Indeed, he proclaims that right. But he equally asserts his right to do those very things in the Irish language and relies in that regard of what was said by this Court in Ó Beoláin to the effect that the Irish language ‘cannot be excluded from any part of the public discourse of the nation or the official business of the State of its emanations.”
That is wholly and entirely different from anything in the nature of compulsion, quasi or otherwise. Mr. Ó Maicín seeks mere equality with English speakers and, I would have thought, he makes this unmistakably clear.
I have the greatest difficulty in understanding how a right to be heard directly by a constitutional court in the constitutionally recognised national and first official language in any way constitutes, or could be thought to constitute, or imply however remotely, “quasi compulsion”.
I repeat, this approach, whereby the State’s obligations are written down to an obligation merely “to encourage” was not contended for or suggested in the submissions of the respondent in this case. Nor did any party suggest that Mr. Ó Maicín claims implied quasi compulsion of any other citizen.
A false antithesis.
The passage quoted above, it seems to me, introduces what I consider to be a radically false antithesis between the rights of a person like Mr. Ó Beoláin, and the rights of English speakers. For example, at para. 3.8 Mr. Justice Clarke says:
“In my view this case turns on the necessity to balance the undoubted language rights of Mr. Ó Maicín other non-resourced 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…”.
There have, in the last fifteen years, been precisely two attempts, as far as I am aware, to secure a jury trial for an Irish speaking Irish citizen before an Irish speaking jury. There is, therefore, no question of an intrusion upon the rights of people who cannot speak Irish “to serve on juries”. In the Canadian case of Beaulac, discussed in the Appendix to this judgment, the commitment of the whole of Canada to a constitutionally grounded policy of bilingualism applied in the province of British Columbia even though only one jury trial per year in that Province in the French language was required. I do not, therefore, consider that Mr. Ó Maicín’s claim impinges on the rights of citizens who cannot speak Irish, and it is not intended so to impinge.
But despite the statistical insignificance of the point, it seems to me to raise a matter of principle.
In my view, in this constitutionally bilingual State, no-one has a right to serve as a judge, or as a member of a panel of judges (as in the Special Criminal Court) or as a juror, in any case the official language of which he or she cannot understand.
The need for a judge to be able to understand the language of the case has been dealt with above. That need is no less pronounced in the case of a juror. The oath of a juror requires him or her to swear that:
“I will well and truly try the issue whether the defendant is guilty or not guilty of the charges set out in the Indictment preferred against him, and a true verdict give according to the evidence”.
Many criminal cases depend, as it seems this one does, almost completely on what view the Tribunal of Fact takes of the evidence. The evidence must necessarily be given in some language. In Ireland, in a court established under the Constitution, it must be given in one or other of the languages recognised as official languages. These are Irish or English. A juror who must “a true verdict give according to the evidence”, has to be able to understand that evidence.
That is part of what is implied by the constitution of this State as a bilingual State, by Article 8 of the Constitution. If that is impractical, or really cannot be done for reasons of resources, or for any other reason, then the position may be addressed by the Oireachtas, pursuant to Article 8.3. But, absent such action by the Oireachtas, the bilingual nature of the State requires that the Tribunal of Fact understand the evidence as it is given. I believe that in any other State that proposition would be regarded as axiomatic, as it clearly is in Canada, on the basis of the information summarised elsewhere in this judgment.
I have already quoted with respectful approval Clarke J.’s statement that:
“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.”
If that statement was unqualified then there would be no difference of opinion in this case. But it is immediately qualified as follows:
“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 interest which may arise.”
As we have seen, this is not the first time where the rights of an Irish speaker are diluted by reference to alleged competition with the rights of English speakers.
This formulation and approach appears to me to ignore the fact that the effect of Article 8 is to render Ireland a bilingual country. This means that there must be parity of respect for each language and its users. Mr. Ó Maicín’s right to use the Irish language is in no way affected if the defendant tried before him, or the defendant after him, opts to take his trial in English. Equally, the rights of those English speakers are in no way affected by Mr. Ó Maicín’s opting to take his trial in Irish.
As we have seen, both the constitutional composition of the State, and the current policy of the State, is one of bilingualism or as the current policy document calls it “functional bilingualism”.
We have represented to the European Union that Irish is in use as a vernacular language in the State. I simply cannot understand how such a representation could be made if it is impossible for a citizen to have a trial in this “vernacular” language in the Courts established by the very Constitution which constitutes the State a bilingual polity.
Ireland became a bilingual State not because, as in some countries (Belgium, Canada, India), there were severe conflicts threatening the very existence of the State on the topic of language use, but as a deliberate choice. It was enshrined in the Constitution also as an act of deliberate choice. Once enshrined in the Constitution, the language provisions became part of what the Judges promise “to uphold”. That promise is to “uphold the Constitution”, not to “uphold it as far as may be reasonable in present day conditions, as perceived by them”.
If it is thought that it is now simply too difficult to uphold the Constitution in the manner identified by the various cases cited in this judgment, it would be more honest to amend the Constitution or to legislate in the manner permitted by Article 8.3. But neither of these are for the judges to do: action on them must be initiated by one or other of the political organs of government.
Stare decisis.
As is well known, this Court ceased to be bound by a rigid rule of stare decisis in 1964. As O’Higgins C.J. put it in Mogul of Ireland Ltd. v. Tipperary (North Riding) County Council [1976] IR 260, at 267:
“In Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642, this Court decided that it is not rigidly bound by the rule of stare decisis and is at liberty to refuse to follow previous decisions of its own, or of the Courts of ultimate jurisdiction which preceded it, if it is satisfied that such decisions were clearly wrong.”
Mogul laid down the restrictive criteria on which at previous cases or a line of previous cases can be departed from. It is sufficient to say, in the present case, that no attempt was made to address the Mogul criteria simply because no request was made to depart from the line of previous cases, cited in this judgment.
As it happens, Mogul is also authority for the proposition that if an existing case made a particular finding without the point being argued, it is not a binding authority on that point and so does not need to be distinguished or formally departed from:
“Faced with the hypothesis that a case might have been decided in ignorance of some relevant statutory provision or in reliance on some statutory provision subsequently discovered to have been repealed he [Lord Halsbury] suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if a decision were given in ignorance of an earlier authority or of compelling validity. Where a point has been entirely overlooked, or conceded without argument, the authority of a decision may be weakened vanishing point.”
I have not been able to trace any case where a long established line authority was departed from without request, and without addressing the Mogul criteria. Quite apart from issues to do with the Irish language in official usage, I must express concern that any constitutional guarantee would be deprived of any useful meaning by a procedure analogous to that used to suck all real meaning out of the provisions of Articles 8.1 and 8.2 in the present case.
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I think it follows from the passage cited from Kennedy C.J. that the State has binding obligations in relation to the Irish language, and not only the negative ones set out in the passage just quoted. A little earlier in his consideration of the former Article 4 he says:
“… by implication, that the State is bound to do everything within it sphere of action… to establish and maintain it in its status as the National language and to recognise it for all official purposes as the National language.” (Emphasis added)
I believe that this applies, a fortiori, to Article 8 and in this respect I would follow what was said by O’Hanlon J. in Ó Murchú v. Cláraitheoir na gCuideachtaí [1988] IR 112, at 115:
“I am of the opinion that the provisions of Article 8 of Bunreacht na hÉireann are stronger in terms of the recognition given to the Irish language as the first official language of the State than was Article 4 of the Free State Constitution”.
The foregoing quotation is my translation: the judgment was delivered in Irish.
I wish to reiterate the conclusion of my consideration of the constitutional status of the Irish language in Ó Beoláin v. Fahy, above. At p.340 of the Report it is said:
“In my view 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 cannot 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 doing so in any national or official context”.
The South Connemara Gaeltacht.
Dr. Conchúr Ó Giollagáin has sworn an affidavit in support of the appellant’s application which, like the appellant’s own affidavit, is uncontradicted. He is a lecturer in socio-linguistics and language planning in Acadamh na hOllscolaíochta Gaeilge, in National University of Ireland, Galway (NUIG). He holds a doctorate and has published a good deal of research on the use of the Irish language in the Gaeltacht. He was joint author of the Comprehensive Linguistic Study in the use of Irish in the Gaeltacht, which was commissioned by the Department of Community Rural and Gaeltacht Affairs. It appears to me that Dr. Ó Giollagáin is entitled to be regarded as an expert witness.
He exhibits the text of his study, and a map attached to it, in his affidavit. The South Connemara Gaeltacht, west of the City of Galway, is the largest of the Gaeltacht areas in the country, being far larger than those in Donegal, Mayo, Kerry, West Cork, West Waterford and Meath. It is in category “A” of his study, meaning that there are “a large number of people, of both genders and every class, who speak Irish on a daily basis”. In areas in category “A”, this exceeds 67% of the community. He says of the category “A” Gaeltacht of County Galway that its geographical extent is from a point east of the village of An Spidéal westward to An Caiseal in West Connemara. In some of the electoral divisions more than 90% are daily speakers of Irish. The figures for competence in Irish are even higher. Between 85 and 90% of the entire community are competent to speak Irish. The district composes both villages and rural areas and, according to Dr. Ó Giollagáin “a diverse, multi-class, multi-perspective community live there including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fishermen, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and un-employed people”.
The relevance of this evidence arises from the way in which the case has been met by the State Respondents, as set out below.
Summary of foregoing.
Since there is no challenge to the evidence adduced by the appellant, is possible to say that the distinguishing features of the present case are, firstly the constitutional status of the Irish language, secondly the legal provisions relating to the Gaeltacht and the evidence about the South Connemara Gaeltacht in particular, and thirdly, the fact that the appellant, the defendant in the criminal proceedings is indisputably a native Irish speaker, as is the alleged injured party, and the offences are alleged to have taken place in the heart of the Connemara Gaeltacht.
These features are of central relevance both to the appellant’s claim and to the respondents’ answer. They appear to me to distinguish the case very radically on its facts from that of MacCártaigh v. Eire [1999] 1 IR 186, a case considered in more detail below.
Nature of appellant’s claim.
The appellant puts his case in three separate ways:
(1) He asserts a language right. This is a right grounded on Article 8 of the Constitution and in particular the recognition of the Irish language as the National language and, accordingly, as the first official language of the State.
As is made clear in the judgment of Chief Justice Kennedy, cited above, the Irish language is not the National language because it is considered to be universally, or even widely, in use throughout the State. On the contrary, it has been designated as the National language, and therefore as the first official language, by a free and deliberate act of election or choice by the People, first in adopting the Saorstát Constitution and secondly, in adopting Bunreacht na hÉireann. This was done in full knowledge of the fact that English was the main spoken language of the State as a whole by a large margin.
The Constitution does not purport to make Irish the exclusive language of the State. On the contrary it positively recognises the status and use of the English language. But, as between the two it confers a primacy on the Irish language which is the first official language. The Irish word “príomh”, used with another word, has the connotation of conferring on the person or thing of whom it is used a primacy amongst things of the kind, connoted by the other word, thus príomh oide, head teacher, príomh breitheamh, Chief Justice.
Article 8 of the Constitution therefore enshrines a policy of bi-lingualism in which the right to use either the National and first official language or the second official language, in any official context is constitutionally enshrined.
In that context it is (to use an entirely non-legal term) an oddity that an Irish speaking citizen who has been reared and educated in a part of the country legally recognised as an Irish speaking area should, when haled into court by a compulsory process, by the State itself, be compelled to make his defence of his liberty and his reputation to the Tribunal of Fact through an interpreter, precisely as if he were speaking Romanian, Hungarian or Chinese or Polish, all languages from which the Courts have had to arrange translation in recent times.
Significance of Article 8.
The explicit adoption by the People as the national and first official language, of a language which was not at any time in the 20th century the vernacular language of more than a small section of the population, was clearly a momentous step.
Firstly, the wording of Article 8 obliges Courts to treat the Irish language as the national and first official language in law and in fact. It is not simply an aspiration, along the lines of the “firm will” to unite the whole population of the island of Ireland, expressed in Article 3. Article 8 is a statement of the existing position in law. This is not a choice made by the Courts: it is imposed by the Constitution.
Secondly, Article 8 accords a primacy to the Irish language which is
The English language, by contrast is “recognised as a second official language.
Thirdly, Article 8 imposes obligations on the State and the Government. The former, in the words of Chief Justice Kennedy “is bound to do everything within its sphere of action … to establish and maintain [the Irish language] in its status as the National Language”.
Equally “None of the organs of 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 provision…”.
The prosecution, in courts established under the Constitution, of those accused of crime is one of the quintessential duties of a State as such. Therefore, it must be conducted in one of the official languages and, at least if demanded, in the first official language. For the State to refuse this is for it to derogate from the constitutional status of the Irish language.
To establish, by a free and voluntary act of democratic choice, as the national and first official language, a language which is not the vernacular is to impose a positive duty, which is at the same time a burden and an expense, on the State. The State must discharge this duty, just as it expects citizens to observe the law, even when that is difficult, burdensome, or expensive. If it is thought too onerous, a government may invite the People to alter Article 8, or the Oireachtas may legislate as permitted by Article 8.3.
The conclusion from all of the material set out so far in this judgment appears to me to be obvious. The Irish People, at the invitation of the Government, have constituted the Irish language the national and first official language of the State.
The State and the organs of Government have honoured this only insofar as they have cast the entire burden of promoting the use of the Irish language on successive generations of school children. Apart from that the actions of the State in relation to the Irish language have been uniformly minimalist and grudging. They have opposed in the Courts citizens who attempted to get statutes and statutory instruments which affected them directly in the Irish language. They have struggled against applications by citizens for official forms in the Irish language. They have (to come closer to the facts of this case) instituted an informal screening system to make sure that jurors in Dublin have an adequate command of English, but have solemnly pleaded in the very case that it would be unlawful to operate such a screening system in the interests of producing a jury with an adequate understanding of Irish. This is a radical contradiction in the State case. But, says the State confidently, there is nothing the Court can do about this.
(2) The appellant also puts his case in terms of his right to a trial in due course of law pursuant to Article 38 of the Constitution. It is not, of course, denied that he has such a right. He says that this includes a right to make his case in the National and first official language to a tribunal which understands that language. He points to his uncontroverted assertions with regard to the deficiencies of the interpreting service provided when he was last before the Circuit Court and to the learned Circuit Judge’s acknowledgment that translation could be “weak”. The defence of a criminal charge is obviously a matter touching on the appellant’s interests, since he would be exposed to a substantial custodial sentence if convicted, and he says he is entitled on that account to defend himself in his native language, the National and first official language, and to be understood directly by the Tribunal of Fact in doing so, a tribunal before whom “every idiom and expression” must be understood, to use the words attributed to the learned Circuit Judge.
Academic support for that point of view is not lacking. Shulman in the Vanderbilt Law Review (1993) Vol 46, at p.177 says:
“Where a defendant testifies in a criminal case, his testimony is critically important to the jury’s determination of his guilt or innocence. The first noticeable difficulty in the present system of court interpretation is that non-English speaking defendants are not judged by their own words. The words attributed to the defendant are those of the interpreter. No matter how accurate the interpretation is, the words are not the defendants, nor is the style, the syntax or the emotion. Furthermore, some words are culturally specific and, therefore are incapable of being translated. Perfect interpretations do not exist as no interpretation will convey precisely the same meaning as the original testimony. While a jury should not attribute to the defendant the exact wording of the interpretation and the emotion expressed by the interpreter, they typically do just that. Given that juries often determine the defendant’s guilt or innocence based on small nuances of language or slight variations in a motion, how can it be fair for a defendant to be judged on the words chosen and the emotion expressed by the interpreter?”
That article concerned persons who spoke foreign languages. Its insights must surely apply a fortiori to a defendant who wishes to use a State’s own National and first official language.
There is a judicial decision to the same effect, R. v. Pooran (2011) ABPC 77. The citation is from the judgment of Brown J. in the Provincial Court of Alberta. Judge Brown had before her a case where applicants were charged with offences under the Traffic Safety Act of Alberta and they wanted their trial conducted in French. That included a French speaking prosecutor, a French speaking judge and entitlement to communicate with a court entirely through French. The prosecutor said that an interpreter would be sufficient to vindicate the defendants’ language rights.
Brown J. held:
“If litigants are entitled to use either English or French in oral representations before the courts, yet are not entitled to be understood except through an interpreter, their language rights are hollow indeed. Such a narrow interpretation of the right to use either English or French is illogical, akin to the sound of one hand clapping, and has been emphatically overruled by R. v. Beaulac.
The Crown Respondent’s assertion that the rights in the Languages Act are met by the provision of an interpreter amounts to a sloughing of the language rights of the litigant to the Charter legal right to due process, natural justice and a fair trial. As to the reference in the June 22, 1988, ministerial statement, to the provision of an interpreter if necessary, I infer from those words that the interpreter is to be provided for witnesses who do not speak the language, English or French, in which the trial is being conducted.”
(Emphasis added)
This passage emphasises that language rights are stand-alone rights and are not merely a function, or a corollary, of rights to due process, natural justice or a fair trial. I agree with the statement of Judge Brown and consider them self evident in any polity which has constituted itself as a bilingual state and which takes seriously the provisions of its own Constitution.
The appellant advances his case in each of these separate ways individually and not in substitution of one for the other. But, fundamentally, it seems to me, this is a language rights case. He raises the question of whether the designation of Irish as the National and first official language is anything more than a mere shibboleth. He relies on the dictum of Kennedy C.J. that, by reason of its status under the Constitution:
“… the State is bound to do everything with its sphere of action… to establish and maintain [the Irish language] in its status as the National language and to recognise it for all official purposes as the National language”.
The State’s answer.
The State does not deny or seek to qualify or downgrade the status of the Irish language as the National and first official language. Nor does it adopt the view that the consequences of that recognition are trumped by the practical needs of the administration of justice. That view was quite recently advanced by the State in Ó Beoláin v. Fahy, cited above, as appears from p.352 of the Report:
“The most fundamental of the points raised by [Mr. Maurice Gaffney S.C.], counsel for the respondents, with great suavity, is this: which is more important, the right of the public that the law should be enforced or the right of the citizen to use Irish? It is necessary, he submits, that one of these rights should yield to the other.
I am firmly of the view that there is no such necessity that one of these rights should yield to the other. In a State in which Irish is the National and first official language, which is committed to a statutorily mandated policy of bilingualism, it is necessary that the laws should be issued and, where requisite, enforced in each of the official languages. In a case such as the present, where there is no question as to the competence and bona fide desire of the citizen to use the National language it is in my view extraordinary to attempt to set up an antithesis between his right to do so and the public right that the law should be enforced. Furthermore, there is no insuperable difficulty in enforcing the law through the medium of the National and first official language and whatever difficulty there may be in this regard arises directly from the inaction of the State over a period of decades in relation to the National language. If these difficulties fall to be addressed in a haphazard and ad hoc fashion, that is because the State has been unwilling to address them in any more coherent way.
The modern State necessarily imposes many onerous duties on citizens in relation to various aspects of life from tax compliance to planning law. Many of these duties are irksome, time consuming and expensive to comply with, but compliance is properly required. Equally, the State itself must comply with its obligations, particularly those enshrined in the Constitution and can no more be heard to complain that such compliance is irksome and onerous than can the individual citizen. In particular, the State cannot be heard to complain that its non-compliance over a period of decades have now rendered present compliance even more difficult.”
The State relies, fundamentally, on the provisions of the Juries Act, 1976. It says that the jury district for the purpose of the offences in question here is the County of Galway and not any part or sub-division of that county and that it cannot be confidently predicted that a jury randomly selected from the County as a whole will have any competence at all in Irish. It says that it is a fundamental right that a jury be randomly selected and thus be representative of the county as a whole. It says that this principle, enjoined by the statute itself, precludes the imposition of any test, such as a language test, for eligibility for jury service either in general or in a particular case.
In other words, the State says that it is impossible, in a jury district consisting of the County of Galway, to provide a jury every member of which will be able to understand Irish. It says further that it is legally impossible to impose a test to ensure competence in Irish on the part of potential jurors who are called as members of the jury panel.
This is the view which found favour in the High Court.
Decision of the High Court.
In the judgment of the High Court delivered the 14th May, 2010, the third Section is entitled “Decision of the Court”. It sets out Section 5 of the Juries Act, 1976 and goes on as follows:
“The Section poses no difficulty in interpretation. Unless the Minister by Order divides a county into two or more jury districts or limits a jury district to a part or parts of a county a jury district is synonymous with a county.
The power of the Minister for Justice to divide or limit is necessarily geographic.
This corresponds to the right of the citizens to be tried by each of the county within which offences are alleged to have been committed [sic].
A jury is selected from the Electoral Register of that jury district. The selection is made by random sampling. The selection cannot be restricted in any way, for example, by way of political affiliation, religious belief, cultural identity or otherwise. To do so would be to interpret the Section beyond its simple meaning.
It would follow that a selection by linguistic ability, albeit restricted to the official languages of the State, would not accord with the provisions of Section 5. It would, as well as other discriminants, create a bias and would be unworkable.
The system of justice requires juries to be drawn from a common pool of those entitled to vote. Restrictions such as the exclusion of non-ratepayers, which discriminated against women, as was seen in de Burca, moved the basis away from ratepayers to the electorate within the geographical district. The random selection is an integral part of the jury. It would be absurd to say that the basis for jury selection should be otherwise than a random selection of the jury.
It would, moreover, be beyond the power of the Court to interfere with the power of the Executive or the Minister in relation to the exercise of his discretion under s.5(2) of the Juries Act.
The Court, accordingly, refuses the relief sought.”
Some Statutes.
In light of the evidence in this case, the submissions of the parties, especially the Respondents, and the judgment of the High Court it is necessary now to set out certain statutory provisions:
S.5 of the Juries Act 1976:
“5.—(1) Subject to the provisions of this section, each county shall be a jury district and for this purpose the county boroughs of Dublin, Cork, Limerick and Waterford shall be deemed to form part of the counties of Dublin, Cork, Limerick and Waterford respectively.
(2) The Minister may by order divide a county into two or more jury districts or limit a jury district to a part or parts of a county.
(3) The Minister may by order revoke or vary an order under this section.
(4) Every issue that is triable with a jury shall be triable with a jury called from a panel of jurors drawn from the jury district in which the court is sitting.”
S.11 of the Juries Act 1976:
“11.—Each county registrar, using a procedure of random or other non-discriminatory selection, shall draw up a panel of jurors for each court from the register or registers delivered to him under section 10 (omitting persons whom he knows or believes not to be qualified as jurors).” [Emphasis supplied]
S.15(3) of the Juries Act 1976 provides:
“(3) Before the selection is begun the judge shall warn the jurors present that they must not serve if they are ineligible or disqualified and as to the penalty under section 36 for doing so; and he shall invite any person who knows that he is not qualified to serve or who is in doubt as to whether he is qualified or who may have an interest in or connection with the case or the parties to communicate the fact to the judge (either orally or otherwise as the judge may direct or authorise) if he is selected on the ballot.”
Schedule 1, Part I of the Juries Act 1976 contains a list of persons who are ineligible for jury service which includes “incapable persons”:
“Incapable persons
A person who because of insufficient capacity to read, deafness, or other permanent infirmity is unfit to serve on a jury.” (Emphasis added)
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S.8 of the Official Languages Act 2003:
“8.—(1) A person may use either of the official languages in, or in any pleading in or document issuing from, any court.
(2) Every court has, in any proceedings before it, the duty to ensure that any person appearing in or giving evidence before it may be heard in the official language of his or her choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.
(3) For the purposes of ensuring that no person is placed at a disadvantage as aforesaid, the court may cause such facilities to be made available, as it considers appropriate, for the simultaneous or consecutive interpretation of proceedings from one official language into the other.
(4) Where the State or a public body is a party to civil proceedings before a court—
(a) the State or the public body shall use in the proceedings, the official language chosen by the other party, and
(b) if two or more persons (other than the State or a public body) are party to the proceedings and they fail to choose or agree on the official language to be used in the proceedings, the State or, as appropriate, the public body shall use in the proceedings such official language as appears to it to be reasonable, having regard to the circumstances.
(5) Notwithstanding any other provision of this section, a person shall not be compelled to give evidence in a particular official language in any proceedings.
(6) In choosing to use a particular official language in any proceedings before a court, a person shall not be put by the court or a public body to any inconvenience or expense over and above that which would have been incurred had he or she chosen to use the other official language.” (Emphasis added)
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It was common case on the hearing of this appeal that the Minister has not made any such order as is envisaged by s.5(2) of the Juries Act, 1976 in respect of the County of Galway, although his power to do so is indisputable.
At the time these proceedings were instituted there were two jury districts in Galway, respectively Galway City and the County of Galway. However, by an order made pursuant to the Juries Act by the Minister for Justice on the 27th March, 2013 these districts were abolished. That measure, which came into operation on the 8th April, 2013 revives in relation to Galway the basic statutory provision that “each county shall be a jury district”. Accordingly, the effect of the ministerial order just referred to (SI 115 of 2013) is correctly stated in the explanatory note:
“The Jury Districts in the Counties of Cavan, Galway, Kerry, Kildare and Monaghan are abolished and each of those counties becomes a Jury District”.
It would be equally easy to make a ministerial order to the effect that the Gaeltacht electoral divisions set out above would constitute a jury district, but this has not been done.
Qualification of Jurors generally.
It will surprise many people to know that there is no express legal requirement in the Juries Act or in any other statute that a person called for jury service should be able to understand or speak the English language. But, where a case is tried in English, it is manifestly necessary that the Tribunal of Fact understand that language. We have it on the authority of the Law Reform Commission that this manifest necessity is secured in practice by “Court Service staff dealing with jurors and [by] County Registrars” who “play a role in identifying persons liable for jury service who are unable to communicate in the English language”. (See below)
What exactly this may mean is not further elaborated by the Law Reform Commission but it is obvious that it means that such persons, persons who are unable to communicate in English, are in some way filtered out and excluded from service on a jury. It is manifest that, according to the Law Reform Commission, some investigation is in practice made as to the ability of jurors to speak English, in a case tried in English so as to “identify” those “unable to communicate” in English. This is done without express statutory mandate. Whatever criticism one may make of this system it is manifest that if it is lawfully applied in cases tried in English, it could lawfully be applied to cases tried in Irish. In a Gaeltacht jury district, if there were one, there would be few such persons unable to undertake Irish, on the strength of the expert evidence which was unchallenged in this case.
The position as to the qualification of jurors generally is summarised in the Law Reform Commission in their consultation paper on jury service (LRC CP 61–2010). At pages 112-113, jury literacy is discussed as follows:
“4.76 It is necessary for jurors to comprehend the evidence presented in court and to be able to communicate with other jurors during the deliberation process. There is no express requirement in the Juries Act 1976 that requires that a juror be fluent in the English language or that they are able to write. However, there is a requirement that they are able to read. The Juries Act 1976 as amended by the Civil Law (Miscellaneous Provisions) Act 2008 provides that persons who have “incapacity to read… such that it is not practicable for them to perform the duties of a juror” are ineligible for jury service. Candidate jurors’ literacy is not tested but there is an obligation under the Juries Act 1976 to disclose an inability to read. While there is no express English language requirement in order to be eligible for jury service, Court Service staff dealing with jurors and Court Registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language.” (Emphasis added)
It is also clear that if the provisions of s.8(4) of the Official Languages Act 2003 applied to the criminal prosecution in which Mr. Ó Maicín is the defendant, then the Director of Public Prosecutions would be obliged to use in that case the official language chosen by Mr. Ó Maicín, which is Irish, and Mr. Ó Maicín would be entitled not to be put to any inconvenience or expense over and above that which would have been incurred had he chosen to use English.
But s.8(4) of the 2003 Act applies only “where the State or a public body is a party to civil proceedings before a court…”. (Emphasis added)
The appellant has put before the Court very impressive material from other jurisdictions which are committed to bilingualism, most notably material from Canada. From these it is quite clear that it is possible, in a State sharing the same fundamental attitudes to the administration of criminal justice as prevail here, and which shares in particular a commitment to jury trial, to ensure that jurors competent to conduct a trial in each of the languages legally or constitutionally available to citizens can be provided.
But, says the Irish State, that is not possible here having regard to the lack of statutory provision for it and, in particular, to the need to select a panel of jurors “using a procedure of random or other non-discriminatory selection” from the register of electors in the jury district. The State do not attempt to explain how a competent knowledge of the English language is ensured amongst jurors. But the Law Reform Commission has given the game away in that regard.
In saying this, I mean that the Law Reform Commission’s discussion documents and report have made it clear that, even in a generally English speaking area of the country it is necessary for court staff to intervene for the purpose of:
“Identifying persons summoned for jury service who are unable to communicate in the English language”.
This is done informally or, to use the word preferred by the Law Reform Commission “casually”. When the Law Reform Commission came to make its recommendations it recommended a continuation of this “casual” system.
In drawing attention to this practice, I do not mean in any way to suggest that it is an unlawful or discredible practice. On the contrary, for reasons set out towards the start of this judgment, I consider it to be absolutely essential to ensure that the jury which is to try the issue of guilt or innocence be capable of understanding the language of the case. The “language of the case” means either of the languages recognised as official languages, Irish or English, whichever the case is to be tried in. I would draw attention to a number of aspects of the provisions of the Juries Act, set out above.
(i) The requirement, contained in s.11 of the Juries Act, 1976 of “a procedure of random or other non-discriminatory selection” applies, not to the selection of a juror for the trial of a case, but to the selection of the panel of jurors from which the jury to try the case will be selected.
(ii) The basis on which a jury who is called from the panel to serve in a particular case may be excluded from doing so is on the basis of being disqualified or ineligible. Schedule I, Part I of the Act of 1976 contains a list of the persons who are ineligible, which includes persons who are “incapable”. Due, no doubt, to an error in draftmanship, a person may be incapable “because of insufficient capacity to read”. It is very remarkable that nothing is expressed in the Act about insufficient capacity to speak or understand the language of the case which is more obviously an essential qualification for the work of a juror.
But the basis of incapacity, which starts with a mention of insufficient capacity to read, continues by referring to:
“Deafness, or other permanent infirmity, is unfit to serve on a jury”.
In my view, it is of the essence of the right, not merely to have a jury seated in the courtroom when the trial takes place, but of the right to trial by jury, that the jury be able to understand the evidence in the language of the case.
I therefore think that the County Registrars and other court staff who presently behave as described in the Law Reform Commission Report, are doing so lawfully and in the interest of trial by jury as guaranteed in the Constitution.
In my view, it is essential that this Court on the hearing of the present appeal come to a firm conclusion on this question. If the present practice is unlawful then the Court should say so, notwithstanding that the consequence may be to invalidate some indefinite number of recently held trials. But if the practice (as I believe) is lawful, then there is no reason that cannot be applied to secure a jury capable of understanding the evidence in whichever of the official languages is the language of the case. In that latter event, it follows that the reasoning of the High Court in refusing relief to the appellant, cannot stand.
It must, of course, be said that it is a truly remarkable omission in the Juries Act 1976 to fail to specify that a juror called to serve in a particular case must be able to understand the language of that case. But that is an omission by the legislature, and there is nothing the Court can do about that.
A Gaeltacht Jury District?
It is true, of course, that the Minister might by order divide the County of Galway into two or more jury districts and might limit a jury district to a part or parts of the County, for example the Gaeltacht parts of County Galway. But the Minister has not done this and, say the State, the Court should not compel him to do so.
The State have not denied that, if there were a jury district consisting of, or including, the large Gaeltacht area already delineated by statutory instrument, it would be readily possible to find in such area a jury capable of hearing the case in Irish. There was evidence to this effect in this case. Any difficulties in doing so could be surmounted by exactly the steps used to ensure a jury competent in English, where English is the language of the case.
The legislation on juries, the relevant parts of which are mentioned above, are remarkably silent on the question of the qualifications of jurors. There is, for example, no express legal provision that a juror sworn for a trial in, say, Dublin, should be able to speak English. There is provision that a person may be ineligible for jury service “because of insufficient capacity to read” but it is apparently sufficient to remove oneself from that category that one is able to read in any particular language: no particular language is specified. In today’s conditions, it is certainly not improbable that a person whose native language is not English may be summoned for jury service in Dublin. About this contingency, and the question of whether such person has enough English to follow the proceedings, the Law Reform Commission can say only:
In fact, as clearly emerges from the statutory provisions quoted above, and from the Law Reform Commission’s paper, “… there is no express English language requirement in order to be eligible for jury service”.
The practical difficulty that this remarkable omission causes is remedied quite informally: “Court Service staff dealing with jurors and Court Registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language”.
It is quite clear that this is done by excluding such persons from jury service because they cannot communicate in English. This practice which is nowhere expressly authorised in law, but which has been revealed by the Law Reform Commission, gives the lie to any suggestion that all jurors are in fact selected on a totally random basis. It is clear from the source quoted that persons who cannot communicate in English are “identified”. It would of course be much more honest and transparent if there were a legal basis for this process but the existence of the practice renders it quite impossible for the State to say that one cannot select an Irish speaking jury because that would interfere with the random nature of the process.
The somewhat ad hoc system which, in the view of the Law Reform Commission, ensures that jurors in Dublin are able to speak English could plainly be used to ensure that jurors selected from a jury district comprising a large Gaeltacht are able to speak Irish. If such ad hoc arrangements are not objectionable in the Galltacht, I cannot see that they would be unacceptable in the Gaeltacht. And if they are objectionable in the Gaeltacht, they are to the same extant objectionable in the Galltacht. In that event statutory reform is urgently needed.
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The State’s principal Authority.
The State Respondents rely very heavily on the case of MacCártaigh v. Eire [1999] IR 186. The plaintiff in that case was a native Dublin man charged with theft offences allegedly committed in the Dublin Metropolitan District. He was an Irish speaker. The headline offence was the alleged theft of chocolates and sweets worth £11,252.50. He, too, wanted a trial before a jury who could understand him in Irish without the intervention of an interpreter. He was refused relief on the grounds that “if every member of the jury had to be able to understand legal proceedings in Irish without the help of an interpreter, that would exclude the majority of the People of Ireland”. (Page 199).
That, indeed, is the entire ratio of MacCártaigh, both in the High Court and in the Supreme Court.
The State defendants say that this case is directly in point in the present litigation. The plaintiff/appellant says that it is clearly and obviously distinguishable and indeed the undisputed evidence of Dr. Ó Giollagáin is directed to that point.
The judgment of this Court in MacCártaigh was delivered in Irish by Hamilton C.J., and it upheld the Order of the High Court. At p.196 Hamilton C.J. said, again in my translation:
“According to O’Hanlon J., if the plaintiff’s claim were acceded to, the majority of the People of Ireland would not be able to serve on the jury in a case like this; and that would be contrary to the sense in which the Supreme Court interpreted Article 38.5 of the Constitution in the case of de Búrca v. Attorney General [1976] IR 38”.
O’Hanlon J., at p.192 of the Report had said, again in my translation, in the High Court:
“In regard to the State as a whole, including Gaeltacht and Galltacht (including City of Dublin in the figures, of course) 29.4% of the community above the age of three years said (or it was said on their behalf) that they were able to speak Irish, but this figure was below 25% households in the Dublin district. There is no account at all of how fluent [in Irish] any of the People who answered the question were, with regard to their knowledge and capacity to speak Irish, and everyone knows (“Tá a fhios ag an saol”) that many of the community would not like to admit that they had entirely lost their Irish, because they wish to be loyal to the language and to the cause of the language.
That means, if one were setting about putting together a jury list which would have no-one on it except people who had a good knowledge of the spoken language, that it would be necessary to exclude 75% at least of the community in the City of Dublin (“D’fhaigáil ar leath-taoibh”, lit. to leave on one side from the start). And I am of the opinion that the figure would be closer to 90% or more if one were concerned with people who would be able to address complicated questions of criminal law and to understand them”. (Emphasis added)
Both the High Court and the Supreme Court found this objectionable in a jury panel which was required to constitute “a fair cross-section” of the community “to ensure that the jury’s verdict will have the quality of a community decision”. These phrases are derived from the judgment of Henchy J. in The State (Byrne) v. Frawley [1978] IR 326 and de Búrca v. The Attorney General cited above.
The figures quoted above are taken from the 1986 Census of Population. The most dramatic figure, that on the basis of which it is possible to say that a requirement for a jury panel composed of people who would understand Irish would exclude 90% of the population, relates expressly and specifically to the Dublin Metropolitan District only. It was so described by O’Hanlon J. in the passage quoted above.
It is to those figures, and the conclusion based upon them, that the uncontradicted evidence of Dr. Ó Giollagáin in the present case was directed.
As the Statutes quoted in this judgment makes clear, there is no question, in any circumstances, of a jury panel being derived from the People of Ireland as a whole. On the contrary, the jury for any particular case is selected from different and smaller “jury districts” which, unless the Minister specifies otherwise, are the administrative counties. In the present case, there is no evidence on either side as to the linguistic competence, or the probable linguistic competence, of a jury selected from the County of Galway as a whole. There is ample uncontradicted evidence that, if there were a jury district consisting of the Gaeltacht areas of West Galway, a very high percentage of a jury panel taken from those districts would be able to speak Irish and to follow legal proceedings in that language. Such a district would also, according to the uncontradicted evidence, provide a reasonable cross-section of the community including those engaged in professional and other skilled occupations, officials, business people, self employed people, students and the unemployed, as well as farmers and other agricultural workers.
Power to require a Gaeltacht Jury District.
Having regard to the terms of the Juries Act, 1976 requiring the composition of jury panels, not from the population as a whole, but from the population of individual jury districts, the ratio and the statistics on the basis of which MacCártaigh was refused relief simply have no bearing on the present case. No figures whatever have been adduced as to the linguistic competence of a representative cross-section of a population of the County of Galway and there has been ample evidence that a representative cross-section of a jury panel drawn from the Gaeltacht districts would be able to follow the legal proceedings in Irish.
The plaintiff/appellant has, however, the difficulty of establishing that it is within the jurisdiction of the Court to compel the Minister to create a jury district of the sort he requires or that, even if it is, the Court should exercise such jurisdiction. But these are different and quite other issues, which will be considered in their place below. For the present, it is sufficient to note that the ratio of MacCártaigh, concerned as it is with the availability of Irish speaking jurors in the Dublin Metropolitan District or, obiter, in the country as a whole, is quite different to that pertaining to a claim whose facts and legal contentions alike are restricted to the actual circumstances of the plaintiff here, that is of a gaelgeoir, a native speaker, charged with an offence against another Gaeltacht resident, which offence is said to have taken place within the Gaeltacht.
There can be no dispute with the various cases cited, holding a jury panel should be representative of the community. The community, or, in Irish, Pobal, in question here is a Gaeltacht community which is part of the County of Galway as opposed to a broader area, such as the people of Ireland as a whole, or one which is simply different, such as the community of the Dublin Metropolitan District. The Circuit Court, where this case will be tried, is a court of “local”, and not National, jurisdiction.
The most fundamental problem, the first of two such problems, faced by the appellant is that the Minister has not, of course, designated a jury district comprising of, or comprising largely of, the Gaeltacht. He could do so if he wanted to, but has not done so. It would seem necessary to do so, as a practical matter, if a reliable source of Irish speaking jurors is to be found.
The appellant seeks in these proceedings, amongst other reliefs:
“An order directing the Minister to take all necessary and/or convenient steps to ensure and facilitate a trial before a bilingual jury for the applicant, including specifying a new jury area in County Galway pursuant to s.5 of the Juries Act 1976 and/or creating a new jury summons pursuant to s.12 of that Act.”
It will be recalled that s.5(1) of the Act of 1976 established a position whereby, in the absence of a Ministerial Order, each county shall be a jury district. Section 5(2) then provides as follows:
“The Minister may by order divide a county into two or more jury districts or limit a jury district to a part or parts of a county.”
In The State (Sheehan) v. The Government of Ireland [1987] IR 550, Mr. Sheehan was suing Cork Corporation for damages due to a fall on the public footpath. The Corporation, as Road Authority, would only be liable to him in those proceedings if the Corporation could be shown to have been guilty of misfeasance with regard to the construction or maintenance of the footpath and would not be liable if guilty only of non-feasance i.e. a failure or omission to repair the footpath.
That state of the law was changed by s.60 of the Civil Liability Act, 1961, providing that “a Road Authority shall be liable for damage caused as a result of their failure to maintain adequately a public road”, i.e. for non-feasance.
But another provision of s.60 provided that the Section “shall come into operation on such day, not earlier than the 1st day of April, 1967 as may be fixed therefore by order made by the Government.”
No order was ever made by the Government bringing s.60 into operation and Mr. Sheehan sought relief by way of mandamus requiring the Government to make an order fixing the date for the coming into operation of the Section. He was successful in the High Court (Costello J.) but that decision was reversed in this Court.
Henchy J., with whom a majority of the Court agreed said at p.551:
“The essence of [Mr. Sheehan’s] case is that the discretion given to the Government by s.60(7) requires to be exercised reasonably, that is to say within a reasonable time after the 1st April 1967, and that the default on the part of the Government leaves them open to mandamus. On the other hand, the case for the Government is that s.60(7) merely allows them to bring the Section into operation whenever they choose, so long it is after the 1st April 1967.
I am satisfied that s.60(7) is merely enabling. The usage of ‘shall’ and ‘may’ both in the subsection and in the Section as a whole point to the conclusion that the radical law reform embodied in the Section was intended not to come into effect before the 1st April 1967 and thereafter on such day as may be fixed by an order made by the Government. Not, be it noted, on such day as shall be fixed by the Government. Limiting words such as ‘as soon as may be’ or ‘as soon as convenient’, which are to be found in comparable statutory provisions are markedly absent. If the true reading of s.60(7) were to the effect that the Government were bound to bring the Section into operation, it would of course be unconstitutional for the Government to achieve by their prolonged inactivity the virtual repeal of the Section.”
The Juries Act does not contain, like s.60 of the Civil Liability Act, a proposal for the reform of the law of tort, but makes provision for practical arrangements in relation to an important constitutional matter, the right to trial by jury. It is also bound to reflect, and to facilitate, other constitutional rights, such as those reflected in Article 8.
On the hearing of this appeal Mr. Lúan Ó Braonain S.C. for the State said that the fundamental difficulty in complying with a plaintiff’s wish to address the Tribunal of Fact directly in his native language and to be understood directly by them in doing so was that it would be impossible to find a competent jury. This is not so. On the uncontradicted evidence in this case, it would be quite possible to find such a jury but the Executive has refrained from taking the simple and virtually cost free step that would allow the provision of an Irish speaking jury, representative of the pobal or community of Connemara.
The Executive is not here confronted with the sort of difficulty or sheer impossibility which prevented the plaintiff being accorded relief in MacCártaigh v. Eire, above. There, where a Dublin based defendant was charged with offences against property committed in Dublin, Hamilton C.J. cited with approval a passage from the Vanderbilt Law Review which I have quoted above. He nonetheless dismissed the plaintiff’s claim for an Irish speaking jury. The judgment was delivered entirely in Irish so that the citation which follows is my translation of what was said by Hamilton C.J., at p.198 of the Report. After citing the passage from the Vanderbilt Law Review already referred to he continued:
In the present case there is a ready solution to the problem of allowing the defendant to stand his trial, and to make a defence, before a jury who will understand it directly. The Executive has not chosen to make that readily available provision available in practice, but that is not the same as saying that it is impossible to do so. Indeed, quite manifestly it is not impossible: it has simply not been done.
The Supreme Court judgment in Sheehan v. Ireland “seems unduly timid in the circumstances…” according to the learned editors of J.M. Kelly: The Irish Constitution (4th Edition, p.380). But it is not necessary for present purposes to enter into the merits or otherwise of the case since I believe that it is plainly distinguishable from the circumstances of the present case, which concern the measures to be taken by the legislature in the discharge of a constitutional duty. This duty is that expressed by Kennedy C.J., in language already quoted in this judgment, as follows:
“… the State is bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language”.
And a little later:
“ None of the organs of the State legislative executive or judicial may derogate from the pre-eminent status of the Irish language and the National language without offending against the constitutional provision…”
The fact that a constitutional duty (rather than a mere discretionary item of law reform) is in question was what enabled Kearns P. to grant relief against the Government in the circumstances of Doherty v. Government of Ireland and Anor. [2011] 2 IR 222. This well known case concerned the failure or omission for the Government to move the writ for a by-election to fill a casual vacancy in the representation for the three seat constituency of Donegal Southwest. The vacancy had occurred on the 6th June 2009, so that the delay in moving the writ was the longest which had occurred in the history of the State.
Kearns P. first held, as summarised at para. 1 of the headnote:
“That decisions or omissions which affected citizens’ rights under the Constitution were prima facie justiciable”. (Emphasis added)
The State contended that the question of when the writ was to be moved was a matter wholly and solely within the discretion of the Government. To grant relief would, it was submitted by Mr. Maurice Collins S.C., amount to “tearing asunder” the provisions of the Constitution. But Kearns P. held, at p.247 of the Report:
“Far from the Court ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application, it is the ongoing failure to move the writ for this by-elections since June, 2009 which offends the terms and spirit of the Constitution and its framework for democratic representation”.
I have no hesitation in holding that the failure to take the necessary steps to ensure that the plaintiff can be tried, on the criminal charges which the State have brought against him, by a jury which will understand him directly in the National and first official Language “offends the terms and spirit of the Constitution”, and the status and the rights which it accords to the National and first official Language and to citizens who wish to speak it.
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I am impressed with the strength and coherency of the appellant’s claim to be enabled to conduct his defence, before a tribunal which will understand him directly, in the National and first official language. I do not believe that there is any other country in the world in which a citizen would not be entitled to conduct his business before a court in the National and first official language, and to be understood directly by such court in that language. I have very carefully considered whether it is not incumbent on the State, by reason of its being “bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language and to recognise it for all official purposes as the National language”, to quote Chief Justice Kennedy, to take whatever steps are necessary to ensure that the defendant, a Gaelgeoir living in the Gaeltacht and charged with an offence said to have been committed there against another Gaelgeoir, may address the Court which is to try him in a language which is at the same time his own language and the National and first official language of the State, before a tribunal that can understand him directly.
Those steps involve merely the making of a statutory instrument of the kind indicated at page 33 and 34 above.
I have considered whether the Court should refrain from ordering this step to be taken on the basis of the provisions of the Official Languages Act 2003 and in particular those set out above.
It appears to me that s.8(4) of that Act actually secures to a party who is the litigious opponent of the State or a public body precisely the right which the appellant seeks here - the right to dictate the language in which the proceedings are conducted and adjudicated.
I say “adjudicated” because s.44 of the Courts of Justice Act, 1924 provides that:
“So far as may be practicable having regard to all relevant circumstances, the Circuit Judge assigned to any circuit which includes a district where the Irish language is in general use shall possess such a knowledge of the Irish language as would enable him to dispense with the assistance of an interpreter when evidence is given in that language.”
It seems likely that the judge assigned to preside at the hearing of this criminal prosecution on the Western Circuit, in a county containing the largest Gaeltacht in the country, would be capable of dispensing with the services of an interpreter when evidence is given in Irish, as the Statute envisages.
But the relevant provision of the Act of 2003 is drafted with regard to civil proceedings only. That is, it is drafted so as to exclude criminal proceedings of any kind, whether prosecuted summarily, or on indictment.
It might be thought that this is not a rational distinction. Certainly it is the case that if a person were engaged in civil proceedings against the State for assault by an official, he would be entitled to trial by jury of that cause and he would be entitled, by reason of the 2003 Act, to have the case conducted in Irish on both sides. It is not obvious to me why a distinction is made between the trial of a civil action for assault and the trial of a criminal prosecution for assault.
The state of law and practice whereby the State cannot or will not provide for the trial of the appellant a tribunal which will understand him directly as he makes his defence to a serious criminal charge which the State has brought against him in one of its own courts is in my view a breach of the principle, established in Ó Foghludha v. McLean, according to which:
“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 provision of Article 4”.
The failure to provide a tribunal such as is mentioned above for the trial of this citizen who wishes to defend himself in the National and first official language is a breach of the principle, also established in that case:
“… that the State is bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language and to recognise it for all official purposes as the National language”.
This failure to provide such a tribunal offends the principle, expressed in Ó Beoláin v. Fahy, in a passage quoted above at:
“… the Irish language which is the National language… cannot … be excluded from any part of the public discourse of the nation or the official business of the State or any its emanations. Nor can it be treated less favourably in these contexts than the second official language.”
Section 8(4) of the Official Languages Act, 2003 confers on a litigant in civil proceedings the right to require that the State party shall use the official language of its opponent’s choice. This does not preclude the plaintiff from seeking the right he claims in respect of criminal proceedings, to which the Section does not apply.
To order the creation of a jury district composing the area constituted by the Gaeltacht would permit a trial in Irish, directly understood, in the particular case of the applicant. It would not, of course, remove linguistic inequalities more generally, for instance in the context of a person such as Mr. McCártaigh whose case is cited above. But it is beyond the power of the Court to amend the law generally, though we can grant relief in the particular case of an individual whose legal or constitutional rights have been denied or disregarded.
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As I understand it, the State does not dispute that a litigant is entitled to have provided to him in Irish the Rules of the Court wherein he is to be tried, and that he has in fact been provided with such Rules. In those circumstances I do not consider that any relief is necessary in relation to the appellant’s claims in these regards.
Conclusion.
I would allow the appeal. But in the circumstances of this case, and in view of the remarks of Kearns P. in Doherty v. Ireland, cited above and the cases to which he refers, I would at the present time grant no relief other than a declaration.
I would grant that declaration substantially in the terms of the second relief claimed by the applicant in his statement grounding the application for judicial review and declare:
“That the appellant is entitled to be tried before a jury who will understand evidence given in Irish directly and without the assistance of an interpreter.”
Appendix I
Appendix II
Appendix III
Appendix IV
Appendix V
