The UN Committee that monitors disability rights has recently ruled that Australia breached the UN Convention on the Rights of Persons with Disabilities (CRPD) by refusing to allow deaf persons to serve on juries[1].
The CRPD Committee considers complaints made under the Optional Protocol to the Convention on Disabilities. Three years ago, in 2013, Australian citizens Gemma Beasley and Michael Lockrey, who are both profoundly deaf, filed complaints with the Committee. They had both been summoned for jury service in Australia but were excluded because they would have required either sign language interpretation or ‘steno-captioning’ (simultaneous transcription by a stenographer) to enable them to follow the evidence and take part in the jury discussions.
In their submissions to the CRPD Committee, the Australian government argued that some of the evidence might be lost in translation and that having a sign language interpreter or a stenographer in the jury room while the jury discussed its verdict would be in breach of the Common Law principle of jury confidentiality.
The CRPD Committee rejected both arguments, pointing out that Australian Sign Language was in daily use by the deaf community without causing problems and stating that jury confidentiality could be protected by requiring signers and stenographers to take an oath of secrecy, just like the jurors themselves, and to observe a strict code of conduct.
The Committee found that Australia had been guilty of disability-based discrimination against the two would-be jurors and had violated their right of access to justice. It held that Australia was under an obligation “to enable [the complainants’] participation in jury duty, providing [them] with reasonable accommodation … in a manner that is respecting the confidentiality of proceedings, at all stages of the jury selection and court proceedings…”. And it directed that Australia should pay compensation to Ms Beasley and Mr Lockrey and “take measures to prevent similar violations in the future”.
The Australian government has been given six months to respond to the Committee’s findings and indicate any steps they are taking to implement the recommendations.
The decisions of the CRPD Committee are not binding in domestic law in Australia but they are bound to have a significant influence on the Australian High Court (the equivalent of the Supreme Court here) when it hears a forthcoming appeal by deaf woman Gay Prudence Lyons against her exclusion from jury service in Queensland.
Deaf persons have been able to serve on juries in Australia’s neighbour, New Zealand, for the last ten years and in the US for over 30 years, though they are still excluded in the UK.
The CRPD decisions may have implications for Ireland as well. FLAC took a number of cases on behalf of deaf persons excluded from jury service some years ago. In the case of Galway woman Joan Clarke, the High Court held that there could no longer be a blanket ban on deaf persons serving on juries but the judge went on to say that in his opinion a sign language interpreter could not be permitted in the jury room[2].
In November 2010, the late Mr Justice Paul Carney held that a deaf man, Senan Dunne, could sit on a jury in the Central Criminal Court if the sign language interpreter took an oath of confidentiality about the jury’s deliberations and the jury foreman or woman ensured that the proper protocols were observed[3]. However, the defence in the trial then objected to Mr Dunne and he was not allowed to serve. Since then no other deaf persons appear to have been chosen for jury service and the issue has been stalled.
Ireland has not yet ratified the Disabilities Convention despite signing it almost 10 years ago and is one of only three EU member states that have so far failed to do so. However, pressure for Ireland to ratify has been growing and ratification is included in the current Programme for Government while the new Disabilities Minister Finian McGrath has pledged that it will be ratified by the end of 2016.
Once the Convention and Optional Protocol have been ratified, it is likely that a complaint about the exclusion of deaf persons from juries will be filed fairly shortly afterwards and there is no reason to believe that the CRPD Committee will depart from its reasoning in the Australian decisions. It would save a good deal of time, effort and expense, if the government would simply change the law to end this discrimination against deaf persons rather than wait until it is told to do so by the UN Committee.
[1] Beasley v Australia CRPD/C/15/11/2013 and Lockrey v Australia CRPD/C/15/D/13/2013, 25 April 2016
[2] Clarke v Galway County Registrar & Others, unreported, 2006/1338 JR, High Court, 14 July 2010
[3] The People (DPP) v Gerry O’Brien (Application of Dunne) unreported, Central Criminal Court, CC3/09, 29 November 2010