Record No: 292/2010

IpsofactoJ.com: International Cases [2014] Part 8 Case 13 [SCIre]


SUPREME COURT OF IRELAND

Coram

Peadar Ó Maicín

- vs -

Ireland

Hardiman J

O’Donnell J

Clarke J

MacMenamin J

O’Neill J

27 FEBRUARY 2014


Judgment

Justice Clarke

1. Introduction

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

  2. The requirement that persons are to be tried on criminal charges with a jury is also expressly specified in Article 38.5 of the Constitution. That provision is, in its terms, subject to exceptions in the case of minor offences, special courts and military tribunals. That there is an obligation on the State to provide, save in those cases exempted, for jury trials cannot be doubted. There are, however, questions concerning the extent to which the constitutional provision for trial by jury is a right enjoyed by accused persons, an obligation on the State independent of the position of the accused or, indeed, both of these. There are also questions as to the extent to which the Oireachtas may, consistent with the Constitution, enact laws limiting the composition of a jury.

  3. This appeal raises questions concerning the rights of persons who wish to have a criminal trial, in which they are the accused, tried with a jury who would be in a position to hear the evidence in Irish without translation. This appeal, therefore, raises questions concerning the extent of the entitlement of such a person to have a criminal trial conducted in Irish without translation so far, at least, as their own participation in the trial is concerned. Likewise the possible practical difficulties of empanelling a jury who would be competent to conduct such a trial without the benefit of translation raises questions about the extent of the limitations which can legitimately be placed on the jury empanelment and selection process.

  4. Thus, important issues arise as to the extent of the language and other rights enjoyed by persons seeking a jury competent in Irish, the extent to which it is permissible to limit the composition of a jury in a manner which is consistent with the use of the term jury in the Constitution and the balancing of any language and jury trial rights and obligations which derive from the Constitution.

  5. In the High Court, the plaintiff/appellant ("Mr Ó Maicín") sought orders designed to establish his entitlement to be tried before a jury which could understand both Irish and English. His claim failed for reasons set out in a judgment of Murphy J. (Ó Maicín v Eire [2010] IEHC 179). Mr. Ó Maicín has appealed to this Court against the judgment and order of Murphy J.

  6. 2. Some general observations

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

  8. However, in addition, there are a number of aspects of the judgment of Hardiman J. with which I am fully agreed. First, I agree that, as he puts it, this is “fundamentally” a language rights case in the sense that the argument put forward by Mr. Ó Maicín derives from his asserted language rights. While Mr. Ó Maicín also puts his case in terms of his undoubted right to a trial in due course of law pursuant to Article 38 of the Constitution, and in terms of a right to equality before the law with an English speaker under Article 40.3.3 of the Constitution, each of those assertions have, as their ultimate foundation, a language right.

  9. Some persons have no option but to be tried before a jury which does not speak their native tongue. In modern Ireland there are many “new Irish” or others who happen to be in the jurisdiction exercising rights such as the right to work under the European Treaties. Such persons may be able to speak English (or, perhaps, Irish) to a greater or lesser extent but many are not sufficiently fluent that they would wish to give evidence in an important case involving a serious criminal accusation against them other than in their native language. If a person could not ever have a fair trial, as such, unless the decision maker could speak their native language then it would, in practical terms, be impossible to put many such persons on trial. The conduct of a trial in a language other than that of the accused is not, therefore, of itself and without more a breach of any constitutional entitlement. That does not, of course, mean that such persons do not have significant constitutional entitlements to translation and assistance so as to minimise any disadvantage to which they may be put.

  10. Likewise, an equality argument raised by such a person based on the assertion that he or she was at an impermissible disadvantage compared with an English speaker, who would be tried with a jury capable of understanding their evidence without translation, could not succeed. The fundamental point made on behalf of Mr. Ó Maicín in respect of his entitlement to a trial in due course of law and to his entitlement to equality before the law stems directly from the fact that he is a speaker of the national and first official language.

  11. I also agree with the treatment of the State (Sheehan) v The Government of Ireland [1987] I.R. 550 in the judgment of Hardiman J. If it were to be established that Mr. Ó Maicín had a constitutional right which could be met by the exercise of a statutory discretion by a Minister of Government, then it seems to me that different issues would arise to those which were at play in Sheehan. In Sheehan the Oireachtas had, as Hardiman J. points out, enacted legislation which, if commenced, would have extended the liability of local authorities to nonfeasance in addition to the existing liability in respect of misfeasance. The relevant provision had, however, never been commenced. The issue in Sheehan was as to whether there was an implied obligation to commence within a reasonable period of time. This court, in Sheehan, reversing Costello J. in the High Court, held that there was not. However, as Hardiman J. points out, there were no constitutional rights involved. The State has, of course, a duty to vindicate any established constitutional entitlements. If a constitutional entitlement can be established and if there is a means by which it can be vindicated by the exercise of a power vested, even on a discretionary basis, in the State or an organ of the State, then there will always be a strong case for the court declaring an obligation on the part of the State to exercise any discretion in a manner which would vindicate the constitutional right established. The real issue, it seems to me, is as to whether the constitutional right asserted in this case can be said to be established and to apply in the circumstances of this case in the first place. If it is so established and applicable, then clearly the court is obliged to take whatever measures may be appropriate to seek to ensure that such a right is vindicated.

  12. For those reasons it seems to me that the three questions which fall for consideration are those identified in the introduction to this judgment.

    On that basis I turn first to the extent of any language rights involved.

  13. 3. Mr. Ó Maicín's language rights

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

  15. It is, of course, correct that, as Kennedy C.J. pointed out in O’Foghludha, the status accorded to Irish in the Constitution does not derive from the fact that Irish was (or indeed is) the language universally spoken by the people or even the majority of the people. Rather that status derives from Irish being “the historic distinctive speech of the Irish people”. It also follows, as Kennedy C.J. pointed out, that the State is obliged to do everything within its sphere of influence to maintain Irish in its status as the national language such that no organ of the State may derogate from the pre-eminent status of the Irish language as the national language.

  16. While the State, and each of its organs, has an obligation to promote and respect the high status of the Irish language there may, nonetheless, be limitations on an entitlement to have Irish used which derive from the limited use of Irish in ordinary everyday life at least so far as many parts of the country is concerned. Other citizens are entitled to use English as an official language if they wish and their rights so to do must also be respected. As the point was not argued it is not appropriate to consider whether Art. 8.3 may provide an express constitutional recognition of such difficulties. I would, therefore, leave to a case in which the point was argued, the extent (if any) to which Art. 8.3 might be said to influence the proper interpretation of the rights conferred by Art. 8 as a whole.

  17. It seems to me, however, to follow from MacCarthaigh v Eire [1999] I.R. 200, (a case to which I will return) that there are limitations on the rights which those who may wish to use Irish can enjoy. That is not to say that the State can in any way ignore the position of those who wish to conduct their business with the State in Irish. Leaving aside the legislative provisions which have been analysed in the judgment of Hardiman J., there is a clear constitutional obligation on the State to encourage the use of Irish for official business for to do otherwise would be to derogate from the constitutional status accorded to the Irish language.

  18. The obligation on the State to encourage the use of Irish applies, of course, independent of the language wishes of those with whom the State is dealing. To place the general obligation of the State above the level of “encouraging” would imply that there was a constitutional imperative to implement the sort of quasi compulsion applied in the past which, it is at least arguable, led to less rather than more commitment to Irish among the general public. It does not seem to me that the general obligation of the State can, therefore, be put any higher than an obligation to “encourage”. However, the specific obligation of the State which arises when a citizen wishes to conduct business with the State in Irish is different. That the State has a constitutional obligation to respect the language wishes of a citizen, who wishes to use Irish in their communications with the State or its agencies, cannot be doubted.

  19. The fact that the State has such a constitutional obligation does not, however, mean that, at a constitutional level, there is an absolute obligation on the State to ensure that persons wishing to so do can conduct all official business through Irish without translation. An assessment of whether, in any particular circumstance, the State has complied with its obligations in respect of the Irish language, will, therefore, necessarily involve an analysis of the rights of those who wish to conduct their affairs through Irish but also the language rights of those wishing to use English and, where appropriate, any competing interests or constitutional obligation that may arise.

  20. It follows that those wishing to conduct official business in Irish do have a right, derived from the constitutional status of the Irish language, to have their business conducted in Irish. However, it equally follows that that right is not absolute and must be balanced against all the circumstances of the case (not least the fact that the great majority of the Irish people do not use Irish as their ordinary means of communication) particularly the fact that other citizens are entitled to conduct their business in English as an official language, and also any other competing constitutional interests which may arise.

  21. It is important to note that this case does not involve the consideration of an argument put forward on behalf of the State that a particular level of commitment to Irish would involve a disproportionate demand on the State’s resources. In such a case it would be necessary to decide, with some precision, the precise standard against which any such argument would need to be measured. I would, therefore, leave to a case in which the issue specifically arose, the question of whether a conflict between Irish language rights, on the one hand, and the State’s allocation of scarce national resources, on the other, ought to be judged by a standard of reasonableness, practicability, or, as O’Neill J. suggests in his judgment in this case, one of feasibility. In my view this case turns on the necessity to balance the undoubted language rights of Mr. Ó Maicín with other non-resource constitutional issues, most particularly the language rights of others including the rights of persons, who cannot speak Irish to a sufficient standard to be able to follow a case without translation, to serve on juries and the constitutional obligation to ensure representative juries to which I now turn.

  22. 4. The constitutional status of a jury trial

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

  24. Indeed, there is a reflection of the constitutional imperative for jury trial in non-minor cases in the fact that there must be a judicial determination by a District Judge that an offence is, properly speaking, a minor offence before that District Judge can accept jurisdiction to try in a summary fashion a case where there is an option for trial on indictment with a jury. Likewise the creation of a purely summary offence, in which no option for trial by jury is available, can be subject to challenge on the basis that the offence thereby created is not, or at least is not always, a minor offence. Those measures are recognition of the fact that trial by jury goes beyond the rights of the parties and involves a constitutional imperative. Given that imperative and the absence of any definition of what a trial with a jury might mean, there has, understandably, been debate over the extent to which it is open to the Oireachtas to regulate both the composition of a jury and the manner in which a jury trial can properly be conducted in accordance with the constitutional imperative. For the purposes of this case, it is the potential composition of a constitutionally compliant jury that needs to be considered. In that context, the leading case is de Búrca v Attorney General [1976] I.R. 38 while some assistance can also be obtained from The State (Byrne) v Frawley [1978] I.R. 326.

  25. De Búrca was concerned with the provisions of the Juries Act 1927 which imposed a minimum rating qualification and also exempted women from the general obligation to serve on juries subject to the entitlement of a woman to apply. Those provisions were found to be inconsistent with the Constitution. In addressing the fundamental principle, Henchy J. said the following at p. 75:–

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

  27. Thereafter, Henchy J. went on, at p. 76, to suggest a test in the following terms:–

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

  29. Griffin J., while identifying that the purpose of a jury was to interpose between the State and an accused person an impartial body of the accused’s fellow citizens which is “truly representative and a fair cross-section of the community”, went on to make clear that an accused was not entitled to a jury which was tailored to the circumstances of the particular case.

  30. The State (Byrne) v Frawley was concerned with the fall out from de Búrca but some of the dicta in that case cast light on the general principle. At p. 340, O’Higgins C.J. noted that any citizen qualified to serve as a juror “had a legal and constitutional right to serve if called”.

  31. Henchy J. also quoted with approval from the judgment of the United States Supreme Court in Taylor v Louisiana (1975) 419 U.S. 522 which accepted “the fair-cross-section requirement as fundamental to the jury trial” guaranteed under the sixth amendment of the US Constitution. The real issue in State (Byrne) v Frawley was as to whether an accused who had allowed a jury trial to proceed after the decision of the Supreme Court in de Búrca could seek to rely on the finding of unconstitutionality made in de Búrca to invalidate his conviction. This Court held he could not.

  32. What seems to follow from an analysis of those authorities is that the requirement that non-minor offences be tried with a jury, as found in Article 38.5 of the Constitution, carries with it an obligation that the jury be broadly representative or represent a fair cross-section of the community. It seems also to follow that it may be possible to exclude persons provided that the jury remains, in the words of Henchy J. in de Búrca, “competent, impartial and representative”. In deciding how to define the parameters of a jury panel, the Oireachtas is afforded a discretion in deciding who may be excluded but if the exclusion is such as renders the jury panel unrepresentative or such as would fail the fair cross-section test, then the restrictions imposed by the Oireachtas will fall into unconstitutionality.

  33. It follows, therefore, that Mr Ó Maicín not only has a right to a trial with a jury in the sense in which that term is used in the Constitution but that there is an obligation on the State, assuming that the offence alleged against him is not a minor offence which can be tried summarily, to ensure that he is tried by such a jury and that the jury is, in accordance with the jurisprudence, broadly representative and represents a fair cross-section of the community. Against that background, it is necessary to turn to the question of how such language rights as Mr Ó Maicín may have, can and should be balanced with the jury imperative which I have sought to analyse. In that context it is necessary to analyse MacCárthaigh which is, by far, the case which most closely resembles this one.

  34. 5. MacCárthaigh

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

  36. MacCárthaigh came before O’Hanlon J. in the High Court who analysed, (at p. 204 – 205) the judgments of this court in de Búrca and State (Byrne) v Frawley. O’Hanlon J. also engaged in an analysis of the evidence concerning the census figures then available. O’Hanlon J. also noted that, irrespective of the language competence of the decider of fact, the services of an interpreter would be unlikely to be able to be dispensed with “since his assistance would be required on behalf of other people who would be participating in the proceedings and who would not have a perfect knowledge of the Irish language”. O’Hanlon J. went on to state the following at p. 207:–

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

    Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.

  38. When the matter came before this Court on appeal the unanimous judgment of the court was given by Hamilton C.J. who noted the difficulties in translation referred to by Michael Shulman in Vanderbilt Law Review (as cited in the judgment of Hardiman J. in this case) but went on to say as follows, at p. 212:–

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

    On that basis the appeal was dismissed.

  40. What is absolutely clear, therefore, is that, on the basis of the circumstances pertaining in Mr. MacCárthaigh’s case and on the facts concerning knowledge of Irish as they were in the late 1990s, this Court held that Mr. MacCárthaigh was not entitled to a trial by a jury who could understand Irish without the assistance of translation. The central question which this Court now has to decide is as to whether this case is different either because of a change in circumstances generally or because of the connection between this case and the Gaeltacht which was not present in Mr. MacCárthaigh’s case given that the circumstances of the latter case arose in Dublin. I, therefore, turn to that question.

  41. 6. Does the decision in MacCárthaigh apply here?

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

  43. It is important to note the reference made by Hardiman J. to the contents of the Law Reform Commission paper on juries which draws attention to the fact that an informal process seems to exist for the exclusion from jury service of persons who are not competent in English. This, as Hardiman J. points out, does not derive from any express statutory requirement or obligation.

  44. The second point to note are the figures for Irish speaking in Gaeltacht areas as revealed in the most recent census which were placed in evidence before the High Court in this case. That evidence is summarised in the judgment of Hardiman J. and is also analysed in the judgment of O’Neill J. so that it is unnecessary to repeat it here. In summary, it may be said that the evidence suggests that, in a broad Gaeltacht area, approximately two-thirds of the community speak Irish on a daily basis with the figure reaching up towards 90% in some more narrowly drawn areas by reference to those district electoral divisions (the basic unit) with the highest level of recorded Irish speaking. However, the precise figure applicable to the jury panel is not, as O’Neill J. points out, clear and is likely to be quite a bit below 90%.

  45. It does, however, seem to me to be also important to have regard to the comment of O'Hanlon J. in the High Court in MacCárthaigh to the effect that not all of those recorded as being capable of speaking Irish (or, indeed, given the evidence in this court, using Irish on a daily basis) may be able to do so to a sufficient level as would enable them to conduct the difficult task of following evidence and argument in Irish without assistance. It may well be true that the gap between recorded competence in Irish and the ability to fully deal with a case in Irish without assistance may be materially smaller in Gaeltacht areas than, for example, in Dublin, where there may be many who are recorded as having a competence in Irish but where that competence derives from having learned Irish in school with that competence having faded to a greater or lesser extent in succeeding years. Regular use will, of course, ensure that competence does not decline.

  46. In that context it is also striking to note the results of a study and report prepared, in the 1970s, by Lord Justice Edmond Davies for the then Lord Chancellor of Britain, Lord Hailsham. It would appear that the full report was never published (see paper by Mr. Justice Roderick Evans, "Bilingual Juries?", (2007) 38 Cambrian Law Review 145) but some of its features were made public in a statement by Lord Hailsham in the House of Lords on the 12th June, 1973 outlining a summary of the recommendations of the report. The relevant passage reads as follows:–

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

    It is clear, therefore, that the report noted that a material number of jurors, though competent and enthusiastic in general terms in and about Welsh, nonetheless found assistance in, and comfort from, a translator to ensure that they had not misunderstood some important piece of evidence. It would be surprising if a similar position was not likely to obtain in Ireland, even in Gaeltacht areas.

  48. Criticism of the quality of translation may well, on occasion, be justified. The risk of mistranslation cannot be ruled out. But likewise, the risk of misunderstanding by many of those who have a reasonable competence in Irish but who do not speak Irish as their mother tongue, seems to me to be equally significant. It is likely that there may be many who would feel competent to conduct an ordinary conversation in Irish and would, for example, have little difficulty in following the news in Irish but who would, nonetheless, not feel entirely confident in being able to avoid the risk of misunderstanding evidence or submissions.

  49. It is also necessary, in this context, to have regard to the point noted by O'Hanlon J. in MacCárthaigh. A translator will be required to translate any evidence, or submissions or directions, given or made in Irish into English provided that there are some persons sufficiently involved with a trial which is predominantly being conducted in Irish who do not have a sufficient proficiency in Irish to be able to understand the proceedings fully. While there might be some cases where the need for such translation into English would be limited (assuming that the jury were all sufficiently competent to understand the proceedings in Irish) there will be many cases where a translation into English of all or much of a trial would be necessary in any event.

  50. That does not, of course, fully take away from the point made by Mr. Ó Maicín which suggests that he is entitled to have a jury which understands his evidence, given in Irish, and any other aspect of the case conducted in Irish, without the benefit of translation. It does, however, follow that it may well be that there would be a significant need for translation into English in any event. The report on the conduct of jury trials in Welsh to which I have referred does emphasise that there may well be persons who have a professed competence to understand a language which is not their native tongue who may, nonetheless, require some comfort from translation in order to be fully happy that they could deal with an important issue such as determining guilt or innocence in a significant criminal trial. In addition, so far as the risk of mistranslation in this case is concerned, there is the added comfort that it has been determined that the trial judge in this case should be competent in Irish so that any material mistranslation would be likely to be identified and corrected.

  51. Be all that as it may, there was, in reality, no evidence available as to the level of competence, so far as ability in Irish to the extent necessary to fully understand legal proceedings is concerned, of any particular percentage of persons in Gaeltacht areas. Just how many of the two-thirds of the population in the wider Gaeltacht area, identified in the evidence, who are recorded as speaking Irish on a daily basis, might have sufficient competence that one could be confident that they would not encounter any material difficulty in understanding all aspects of the case in Irish, is, therefore, impossible to tell. I would, however, like O'Hanlon J. in MacCárthaigh, have to infer that it is unlikely that there would not be some material number of persons who would not have sufficient competence even though they are quite properly recorded as speaking Irish on a daily basis.

  52. Finally, it is important to note that there is a legitimate basis for ensuring that jury areas are not too narrowly drawn from the perspective of their size and population. First, if a jury area is overly narrowly drawn it runs the risk of creating a jury panel which is not, in reality, representative. Second, and perhaps of equal importance, an overly narrow jury area runs the very real risk that a high proportion of persons from it may be excluded from any particular jury because of a connection with the events giving rise to the trial or parties or witnesses likely to be involved. It seems to me to follow that a constitutionally compliant jury panel must be based on a sufficiently large geographical area containing a sufficiently wide population so as to ensure that any panel selected from that area is both reasonably representative and unlikely to suffer significant exclusion on the basis of a connection with the case. There will always be persons who, if selected for a jury panel, would be excluded from any individual case on the basis of such a connection. On average the number of persons so excluded will, taking one case with the next, be much the same. However, if the jury area is drawn over-narrowly, then the percentage of persons so excluded will represent a much greater infringement on the broad representative character of the jury panel as a whole. One hundred people excluded by connection from an overall potential jury panel of (say) 30,000 is neither here nor there. A similar group excluded from a potential jury panel of 500 or even 1,000 would be a different thing altogether. It follows that a constitutionally compliant jury must be drawn from a sufficiently large area and population to avoid the risk of excessive exclusion by connection. It seems to me to follow that the Oireachtas must have some reasonable discretion in determining (or authorising the Minister to determine) the minimum size of area which would not be likely to give rise to problems of that type.

  53. On that basis I am not persuaded that it has been established that it would be possible to provide for a jury area based only on those district electoral divisions which have the highest level of competence in Irish. At the wider level the maximum number of persons who seem to speak Irish on a daily basis appears to be of the order of two-thirds, but there is every reason to believe, for the reasons already analysed, that the number who would be competent to deal with a jury trial in all its facets without any assistance might well be somewhat lower and possibly materially lower.

  54. It, therefore, must be concluded that any jury area which could realistically be created, even if based on the Gaeltacht, would be likely to include quite a significant number of persons (certainly one-third and possibly quite a bit more) who would not be competent to sit on a jury which was required to hear evidence in Irish without the assistance of a translator. It follows that, in order to afford Mr. Ó Maicín the jury which he asserts is his entitlement, it would be necessary to adopt a mechanism designed to exclude the significant number of persons who would not have such competence. The net question seems to me to come down to whether such an exclusion is constitutionally permissible. It might be suggested that, if the ad hoc method designed to exclude persons who are insufficiently competent in English from sitting on juries in English speaking areas is acceptable, a similar ad hoc basis for excluding those without sufficient competence in Irish would likewise be acceptable. On that basis it might be suggested that this case can be distinguished from MacCárthaigh by reason of the availability of a potential Gaeltacht area with a relatively high number of Irish speakers capable of understanding and conducting a jury trial in Irish without assistance and the exclusion, on a similar ad hoc basis to that operating elsewhere in the country in respect of those who cannot speak English, of those not so competent.

  55. It seems clear that such a course of action could be carried out. A broad Gaeltacht jury district could be created. Practical measures could be put in place to ensure that those not sufficiently competent in Irish would not be actually selected to sit on a jury. But the real question is as to whether a jury so selected would be constitutionally compliant and whether, in balancing Mr. Ó Maicín's language rights with the constitutional imperative for representative juries, such a course of action is constitutionally mandated. I have come to the view that it is not.

  56. The test is, as Henchy J. pointed out in de Búrca, as to whether any exclusion "will leave untapped a reservoir of potential jurors without whom the jurors' lists will lack constitutional completeness". It seems unlikely that the exclusion of a very small number of persons who are otherwise qualified to sit on a jury but who lack competence in English would breach that test. A time may come when there is such widespread use and understanding of Irish in a sufficiently wide geographical area that it could be said that the exclusion of a very small number of persons who did not share that competence in Irish would, likewise, fail to meet that test. However, it does not seem to me that the evidence establishes that that time has yet come. What is proposed must, for the reasons which I have sought to analyse, involve the exclusion of a significant class or group (those without sufficient high competence in Irish) such as would leave any jury selected unrepresentative. That situation stems from the fact that Irish is not, at present, a language which is used on the sort of wide basis so that the sort of exclusion that would be required to empanel a sufficiently competent jury would be marginal and could not be said to lead to a breach of the important constitutional imperative that the jury be representative. If the underlying factual situation were to change then the result might well be different, for in those circumstances the constitutional obligation on the part of the State to do all within its power to promote Irish might well require measures to be put in place to ensure a jury trial in Irish without translation in circumstances where that could be achieved without significant interference with the constitutional imperative for truly representative juries. However, as pointed out earlier, that time has not yet come.

  57. I would make one final point of distinction which is between Mr. Ó Maicin and a person whose native language is neither Irish or English and who does not have sufficient competence in either of those languages. Such a latter person has, as an incidence of their right to a fair trial, an entitlement to such translation services as may be necessary to allow them to fully participate in a trial. However were such a person to be sufficiently competent in the language of the trial no right to translation would exist for the person concerned would have a fair trial without translation. However Mr. Ó Maicin’s position is different. His right to conduct his case in Irish is not dependent on whether he could also conduct the case in English.

  58. 7. Conclusions

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

  60. In current conditions, and even in Gaeltacht areas, it does not seem to me that it has been established that it would be possible to empanel a jury with sufficient competence in Irish to conduct an important criminal trial without the assistance of a translator without, at the same time, excluding quite a significant number of persons, otherwise qualified, from the entitlement to sit on the jury in question. For as long as those conditions continue to exist it follows that conferring on Mr. Ó Maicín the rights which he asserts would necessarily result in a constitutionally impermissible exclusion of a significant number of persons from the jury panel so as to render a jury thus empanelled in breach of the constitutional requirement of representativeness. If the underlying conditions were to change then, of course, the balance between Mr. Ó Maicín's language rights and that constitutional imperative might also change. However, for the present I am not satisfied that Mr. Ó Maicín is entitled to the type of jury which he seeks.

  61. It follows that in my view the trial judge was correct and that the appeal must, therefore, be dismissed.

    Justice O’Neill

  62. The appellant in this case has since infancy been a native speaker of the Irish language and although currently, according to his affidavit, resident in Salthill, Galway, much of his life was spent and lived in the Gaeltacht area in Co. Galway. He is charged with two offences which are to be tried before the Galway Circuit Criminal Court, as follows:–

  63. (i)

    On 28th May, 2008 at Beal an Daingean, Leitir Moir in the District area of Doire an Fheich, District No. 7, he assaulted Martin Whelan causing him harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.

    (ii)

    On 28th May, 2008, at Beal an Daingean, Leitir Moir, Galway within the District area of Doire an Fheidh, District No. 7, he did while committing an assault on Martin Whelan in the course of a fight produced in a manner likely unlawfully to intimidate another person, an article capable of inflicting serious injury, to it, a broken whiskey bottle, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990.

  64. The victim of these alleged offences is also a native Irish speaker from the Connemara Fior Gaeltacht area of Co. Galway.

  65. The appellant contends in these proceedings that he is entitled by virtue of his rights under Article 8 of the Constitution to present his defence to these charges in Irish and to have his case heard by a jury, all of whose members are sufficiently competent in the Irish language and indeed also English (a bilingual jury) to be able to hear and fully understand the evidence, the submissions and presumably the judges’ charge all given in the Irish language without the assistance of a translator.

  66. The relevant facts and background to the case are fully set out in the judgments of my learned colleagues especially in the judgment of Hardiman J. and it is unnecessary for me to repeat all of that material here.

  67. This case is the latest in what is now a long and voluminous line of cases concerning the rights of persons who wish to use the Irish language in the transaction of their business with the State and who demand that the State respond to them in the Irish language. These rights derive from Article 8 of the Constitution which is in broadly similar terms to a similar provision in Article 4 of the Constitution of Saorstát Éireann. Article 8 reads as follows:–

  68. (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.

  69. Whilst two official languages are designated, the Irish language is given a position of primacy as the “national” language and the “first” official language.

  70. There has been much judicial consideration of the extent of the duty or obligation imposed upon the State in respect of the Irish language and the corresponding rights of the citizen who wish to use the Irish language. The leading judicial statements in this regard are those of Kennedy C.J. in O’Foghludha v McClean [1934] I.R. 469; and Hardiman J. in Ó Beoláin v Fahy [2001] 2 I.R. 279. In the former of these cases, the following passage from the judgment of Kennedy C.J. describes in surprisingly strong language, the extent of the obligation and duty resting on the State, at p. 483:–

  71. .... The declaration by the Constitution that the National language of the Saorstát is the Irish language does not mean that the Irish language is, or was at that historical moment, universally spoken by the people of the Saorstát, which would be untrue in fact, but it did mean that it is the historic distinctive speech of the Irish people, that it is to rank as such in the nation, and, by implication, that the State is bound to do everything within its sphere of action (as for instance in State-provided education) to establish and maintain it in its status as the National language and to recognise it for all official purposes as the National language. There is no doubt in my mind but that the term ‘National’ in the Article is wider than, but includes, ‘official,’ in which respect only the English language is accorded constitutional equality. None of the organs of the State, legislative, executive or judicial, may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provisions of Art. 4 ....

  72. Article 4 of the Constitution of Saorstát Éireann of which Kennedy C.J. spoke is as follows:–

  73. 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.

  74. It is to be noted that the primary position of the Irish language is, if anything, enhanced in the language used in Article 8 of Bunreacht na hÉireann where the Irish language is not only described as the “national” language but as the “first” official language of the State, whereas in Article 4 of the Constitution of Saorstát Éireann, it is not given that additional designation as the “first” official language.

  75. Thus, it can be said that the imperative force of the obligation of the State described by Kennedy C.J. as emanating from Article 4 of the Constitution of Saorstát Éireann is repeated with added emphasis in the language used in Bunreacht na hÉireann.

  76. In Ó Beoláin v Fahy, Hardiman J. said the following:–

  77. .... the Irish language which is the national language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in so doing in any national or official context.

  78. It would seem to me beyond doubt but that in the fulfilment of its obligations in respect of the use of the Irish language, the State, as said by Kennedy C.J. is “bound to do everything” within its range of competence to establish the use of Irish for all official purposes including in the sphere of the administration of justice.

  79. Impediments which might justify the State in not providing for the use of Irish cannot be mere impracticalities. A choice by the State to withhold provision for the use of Irish on the grounds of administrative difficulty or impracticality would not suffice and would be in breach of the obligation of the State under Article 8 of the Constitution and would correspondingly risk breaching the rights of a citizen who chose to use the Irish language in his or her dealings with the State. I am of opinion that the standard or test to be applied where the State seeks to avoid provision for the use of Irish is one of non-feasibility or in other words that it is simply not possible in the given circumstances to make provision for the use of Irish as sought by a citizen.

  80. It was submitted by the respondents that if the appellant’s proposed solution, namely the creation of a jury district to correspond with the selected electoral divisions west of Spiddal in Connemara were to be implemented, that would create the anomalous situation whereby rights derived from Article 8 of the Constitution would have a materially or substantially different effect or application depending upon what part of the country a citizen sought to exercise those rights. Thus, in Dublin or indeed many other parts of the country pursuant to the authority of MacCárthaigh v Éire [1999] I.R. 200, a person charged with criminal offences triable by jury would not be entitled to a jury, all of whose members were competent in Irish, but a person charged with the same offences, where the jury was to be selected from the appellant’s proposed jury district, would have a right to an all Irish speaking jury.

  81. As a general proposition it can safely be said that rights derived from the Constitution, unless the Constitution itself expressly provides to the contrary, are the same throughout the jurisdiction in which the Constitution and the law have effect. Article 8.3 does make provision for the exclusive use of either official language in different parts of the country or for different purposes or both. A law enacted under the aegis of this provision could have the effect of limiting or indeed denying in the circumstances provided for, the right under Article 8(1) or (2) to the use of either official language in the part of the country prescribed or for the purposes as set out in any such legislation. No such legislation has ever been enacted and therefore Article 8.3 has no application to this case. Indeed, it could be observed that the demand by the appellant in this case for a bilingual jury is fundamentally different to what is envisaged in Article 8.3, namely providing for the exclusive use of either official language.

  82. I do not see that what is sought by the appellant postulates a difference in the nature and content of the rights which the citizen enjoys under Article 8. Rather, it seems to me that any difference of treatment in different parts of the country is to be seen as deriving from the obligation of the State as described by Kennedy C.J. in the O’Foghludha case, “to do everything within its sphere of action” to make provision for the use of the national and first official language. Having regard to the fact that the usage of the Irish language, in the life of the community is quite different in different parts of the country, it necessarily follows that what the State may be expected to do in the discharge of its duty will vary according to the circumstances prevailing in different parts of the country. The setting up of Gaeltacht areas as provided for by statute, where Irish was to a greater or lesser extent the spoken language of the community is an example of the discharge of that duty. It was to be expected that in the provision of the myriad services by the State in areas, particularly Gaeltacht areas, where a very large part of the community use Irish as their daily language, that the personnel providing the services on behalf of the State would do so through the medium of Irish, as is in fact the case. Could it reasonably be suggested that the lanquage requirements of citizens of the Fior-Gaeltacht in Connemara, were to be dealt with on the same basis as the citizens of South Co. Dublin. In my view, it is beyond argument, that in the discharge of its duty under Article 8, the State is obliged to respond to the linguistic requirements to of its citizens, in different parts of the country, in different ways, and where a substantial part of the community use Irish as their daily language it necessarily follows that the State must respond accordingly and is obliged to provide services in those areas through the medium of Irish. In other parts of the country where there is very little use of the Irish language, it would be pointless and indeed artificial for there to be a similar obligation or duty.

  83. If it were to be the case that the obligation of the State under Article 8 and the corresponding rights of the citizen were to be the same throughout the jurisdiction of the State, that would have the wholly unintended consequence of reducing the obligation of the State and correspondingly the rights of the citizen to a standard commensurate with the lowest level of use of Irish in any part of the State. This clearly would have the effect of emptying Article 8 of all of its meaning and substance and manifestly would be the direct opposite of the description of the duties and obligation of the State as contained in the crystal clear words of Kennedy C.J. in the O’Foghludha case.

  84. On this aspect of the case, namely the extent of the obligation or duty resting upon the State to make provision for the use of Irish where a citizen demands this, I am essentially in agreement with the judgment of Hardiman J.

  85. The appellant’s case is that a jury, all of whose members are sufficiently competent in the Irish language can be provided in this case, if that jury is selected from a jury district, the boundaries of which are redrawn so as to confine that jury district to a portion of the Gaeltacht stretching from west of the village of Spiddal, Co. Galway into Connemara. Such a jury district, confined to a selected number of electoral divisions in which the use of Irish as the daily language of the community is very high, namely in excess of 85% of the population, would, the appellant contends yield a jury, randomly selected, which would be broadly or fairly representative of the community as a whole and would be in accordance with the principles as set out by the Supreme Court in the cases of de Búrca v Attorney General [1976] I.R. 38 and the State (Byrne) v Frawley [1978] I.R. 326, as the necessary basis for a jury which is a fair representation of the community as a whole, as required by Article 38 of the Constitution.

  86. The respondents resist the relief claimed by the plaintiff on the basis that it would be an impermissible interference by the courts in the exercise of a discretion by the third named respondent, I would reject that submission on the basis that what is at stake here is the vindication of a constitutional right and if the redrawing of a jury district boundary was the only means of vindicating that right, I would have no hesitation in concluding that the Minister’s discretion would have to be exercised so as to vindicate the constitutional right otherwise in jeopardy.

  87. In support of their submission in this regard, the respondents rely upon the case of the State (Sheehan) v Government of Ireland [1987] I.R. 550. In my view, this case is to be distinguished for two reasons.

  88. The appellant’s case in this regard is based upon the evidence on affidavit of Conchúr Ó Giollagáin, a university lecturer who holds a doctorate in modern Irish from University College Dublin and is an expert and lecturer in Sociolinguistics and in language planning in NUI Galway.

  89. The affidavit is a short one and as it succinctly expresses the evidential basis of the appellant’s case, I quote it in full:–

  90. 2.

    I have published a lot of research on the use of the Irish language in the Gaeltacht. I was joint author of the comprehensive linguistic study of the use of Irish in the Gaeltacht: principal findings and recommendations (Ó Giollagáin and McDonnacha, National University of Ireland, Galway, and National University of Ireland, Maynooth, 2007)commissioned by the Department of Community, Rural and Gaeltacht Affairs and which is marked COG and which I signed before making this oath.

    3.

    As is clear from that study there are communities in Co. Galway in which there are a high number of people, of both genders in every class, who speak Irish on a daily basis in district A and this is the case for more than 67% of the community. In the case of Co. Galway, District A stretches from east of the village of An Spidéal to An Caiseal in western Connemara in some of the electoral divisions where more than 90% of the community are daily speakers of Irish. District A has a population of 13,444.

    4.

    From an ability prospective (rather an usage) the percentage of Irish speakers in District A is even higher i.e. more than 85% and more than 90% in some parts.

    5.

    The district in question includes two villages, i.e. An Spidéal and An Cheathrua along with rural areas. A diverse, multi-class, multi-prospective community live there, including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fisherman, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and unemployed people.

    6.

    If twelve people were chosen randomly from the district, from the list of voters for example, more than 85% of them would be able to understand evidence given in Irish or in English during a trial without the assistance of an interpreter and I believe that twelve people chosen as such would be as representative of the district in question as twelve people chosen randomly from the votes of any district in the country who would understand evidence in English.

  91. In the study referred to by Mr. Ó Giollagáin at Chapter 3 under the heading Language Communities in Contemporary Gaeltacht and under the subheading Category A Gaeltacht Districts, the following is said:–

  92. Category A Gaeltacht Districts

    refer to electoral divisions where more than 67% of the total population (3 years+) are daily speakers of Irish. These electoral divisions evidence the broadest spectrum of Irish language use and exhibit stable levels of Irish language use except in the language behaviour patterns of the younger age groups.

  93. Further on in this study there is a table under the heading 3.3.1 The Reclassified A, B and C Gaeltacht Category Districts. This table sets out a list of electoral divisions in which a very high proportion of the population over the age of three are daily Irish speakers. The percentage of the population who are daily Irish speakers in these electoral divisions in Co. Galway range from a high of 92.29% to a low of 52.632%. If one adds up the total population over three years of age in these electoral divisions, it comes to 12,683. The number of daily speakers of Irish in the same electoral divisions amount to 10,613. This means that in the selected electoral divisions with the highest use of Irish on a daily basis, 83% of the population in these districts had the necessary competence to use Irish as their daily language and by necessary inference 17% do not. It must be further borne in mind that the populations considered in these studies include persons over the age of 70 who, of course, are ineligible for jury service and also persons between the ages of three and eighteen likewise ineligible. It would seem to me to be probable that the population over the age of 70 in these electoral divisions contribute disproportionately to the pool of daily Irish speakers and if it were possible to extract the over 70s from the study, it is likely that the percentage of daily Irish speakers would drop significantly.

  94. This leads me to infer that as a matter of probability in these selected electoral divisions, the pool of Irish speakers that would be available for jury service would be less than 80% of the full community available for jury service.

  95. Certain consequence inevitably flows from this. Firstly, a jury randomly selected from these electoral divisions would, as a matter of high probability, have at least one member who is not competent in the use of the Irish language and would therefore require the assistance of a translator. This of itself would defeat the objective sought to be achieved by creating a jury district confined to the electoral divisions mentioned. Thus the remedy proposed by the appellant would be ineffective in achieving the desired result.

  96. In order to get twelve jurors out of this pool, who are fully bilingual or at the very least fully competent in Irish, it would be necessary to adopt some kind of procedure to exclude those who lack competence in Irish. The Juries Act 1976, makes no express provision for such an exclusionary procedure. In his judgment, Hardiman J. refers to the consultation paper on juries service prepared by the Law Reform Commission (LRC CP61-2010) where the following passage appears at pp. 112 – 113:–

  97. .... while there is no express English language requirement in order to be eligible for jury service, Courts Service staff dealing with jurors and county registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language.

  98. The suggestion which inevitably arises from this, is that if there is a practice or procedure whereby persons who are not competent in English, are excluded from jury service would it not be appropriate that there should be such a procedure to exclude persons who are not competent in the Irish language from service on the jury which will try the appellant.

  99. It is apparent that there is no express provision for such a procedure in the Juries Act 1976. It would seem to me that a s. 9(2) of the Juries Act would provide an adequate legal basis for such a practice, assuming that its terms were complied with. It reads as follows:–

  100. (2)

    A county registrar may excuse any person whom he has summoned as a juror from attendance during the whole or any part of the sittings in question if that person shows to the registrar's satisfaction that there is good reason why he should be so excused.

  101. With the entry into Ireland in recent years of very large numbers of immigrants and as these persons become embedded in the community and in due course registered as electors, it is not surprising that some of these would be summoned as jurors and no doubt in response to these summonses, be likely to bring to the attention, of county registrars and their staff, the fact that they lack competence in the English language. In my view, the inability to understand the language in which a case is likely to be tried would undoubtedly be a “good reason” for the excusing of that person from service as a juror.

  102. If such a practice can operate lawfully to exclude persons who lack competence in English from serving on a jury could it not also be lawfully used to excuse persons who lack competence in Irish in the appellant’s case, to ensure that all twelve jurors were competent in Irish? In the case of the exclusion of persons who lack competence in English it would be extremely unlikely that the numbers of such exclusions in the context of the overall jury pool, would significantly or at all, affect the cross community character of the jury pool. It is very likely that notwithstanding such exclusions the jury pool would still be a fair representation of the entire community and therefore there would be no breach of the representational standard required by Article 38 of the Constitution.

  103. On the other hand, the exclusion of 20% approximately, of the potential jury pool on the basis of inability to speak or understand Irish would indeed involve the exclusion of a large segment of the community i.e. those who did not speak Irish and would, in my opinion, be a breach of the cross community representation principle enjoined by Article 38. Thus, it would not, in my opinion, to be lawful to use s. 9(2) of the Juries Act for that purpose.

  104. In passing I should say that the necessity for the Tribunal of Fact to be competent in the language used in the trial, is not just a “language rights” requirement but is a necessary incident of a fair trial demanded by Article 38 and an essential ingredient of the right of an accused person to a fair trial. It follows, in my view, that the Juries Act 1976, must be construed consistent with the foregoing and the absence of any express provision in the Act providing for exclusion on the basis of an linguistic inability, does not prevent other provisions of the Act where appropriate, for example, s. 9(2), being used for that purpose.

  105. Perhaps, because of the homogeneity of the Irish community in 1976, it was unnecessary to make express provision for this kind of exclusion. It may also have been considered so axiomatic, that exclusions on the basis of inability to speak the language of the trial were so obviously necessary and appropriate as perhaps to require no express statutory provision.

  106. In short, therefore, I am of opinion that the remedy of creating a jury district as contended for by the appellant would be either ineffective to provide twelve Irish speaking jurors without the exclusion of non-Irish speaking jurors, and such exclusion having regard to the large portion of the jury pool to be excluded, would breach the constitutional requirement for a jury representative of the community. Therefore, it is not feasible in this instance for the State to provide the appellant with a jury all of whose members are sufficiently competent in the Irish language as to be able to try the case without the assistance of a translator.

  107. It is to be noted and in this respect I agree with what is said by Clarke J. in his judgment, in that if one reduces the jury pool to the size contended for by the appellant, it is inevitable that within this very small jury district many people would have personal connections to either the appellant or the victim of the alleged assault or with witnesses in the case and could not serve as jurors. In all jury trials, in the jury selection process, it is commonplace for persons to be excused because of their personal connections to people involved in the case. Where you have all of the electors in a county available to draw from, the problem of personal connections has little or no significance in the process of jury selection. However, in the jury district as contended for by the appellant, these problems would undoubtedly loom large and could pose a very serious practical problem in assembling a jury. In this respect, I agree with what is said by Clarke J. in his judgment. It is a further factor weighing against the relief claimed by the appellant.

  108. For all of the reasons set out above, I have come to the conclusion that the appellant has failed to demonstrate that it is feasible for the State in the circumstances of this case to make provision for a jury all of whose members are competent in the use of Irish. Accordingly, I am satisfied that this case, cannot be distinguished from McCarthy v Éire and therefore I would disallow the appeal.

    Justice Hardiman

  109. 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.

  110. Overview

  111. 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.

  112. 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.

  113. 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.

  114. 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.

  115. 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:

    1. It is impossible to provide a jury capable of understanding the case directly (i.e. without an interpreter) in the Irish language.

    2. 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.

  116. This latter point was the basis on which Mr. Ó Maicín lost his case in the High Court.

  117. The status of the Irish language (1).

  118. 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:

  119. 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.

  120. 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

  121. 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.

    (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 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.

  122. The question of Irish in European Law and of Public Policy on Irish in Ireland and Europe are dealt with in Appendix II.

  123. 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.

  124. (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.

  125. This is an extraordinary state of affairs and one which requires urgent legislative attention.

  126. 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.

  127. 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.

  128. 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.

  129. The guarantee contained in Article 38.5 of the Constitution is that:

  130. .... no person shall be tried on any criminal charge without a jury.

  131. 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.

  132. 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.

  133. 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.

  134. Bilingualism

  135. 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.

  136. 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.

  137. 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”.

  138. 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.

  139. 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.

  140. 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.

  141. 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.

  142. 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.

  143. The Irish language in the Constitution.

  144. 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:

  145. 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.

  146. 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.

  147. In Ó Foghludha v McLean [1934] IR 469, Kennedy C.J. said:

  148. .... 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.

  149. In Ó Beoláin v Fahy [2001] 2 IR 279, the constitutional status of the Irish language was summarised as follows:

  150. .... 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.

  151. 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.

  152. 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.

  153. Factual background

  154. 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.

  155. 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.

  156. 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).

  157. The plaintiff’s case.

  158. 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.

  159. 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.

  160. 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.

  161. 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.

  162. The Gaeltacht in Law.

  163. Murdoch’s Dictionary of Irish Law (on-line) defines a “Gaeltacht” in Irish law as:

  164. [Irish speaking district] an area designated as an area for the preservation and usage of the Irish language as the vernacular language.

  165. 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.

  166. Section 2 stated as follows:

  167. 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.

    [emphasis added]

  168. 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.

  169. 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.

  170. The Gaeltacht Act 2012 continues the previous boundaries, providing at s.6:

  171. ‘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).

  172. 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.

  173. Even when these Sections are commenced, the status quo ante will be preserved by s.7 of the 2012 Act which provides as follows:

  174. 7.

    (1)

    An area that was, before the commencement of this Section, determined by order made under s.2 of the Ministers and Secretaries (Amendment) Act 1956 to be a Gaeltacht area shall, notwithstanding the repeal of that Section by s.5(1) continue to be a Gaeltacht area.

  175. 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.

  176. 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”.

  177. 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.

  178. 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.

  179. Application to the Circuit Court

  180. 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:

  181. 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.

  182. 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.

  183. 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.

  184. The applicant then proceeded to apply to the Circuit Court for:

    1. An order that the trial proceed with a bi-lingual jury i.e. a jury who can understand questions, submissions and evidence in Irish without the need for an interpreter and

    2. An official translation of the Rules of Court.

  185. 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.

  186. 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.

  187. 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.

  188. It appears that the complainant in this case, the alleged injured party, is also a person from the Gaeltacht and an Irish speaker.

  189. Judicial Review

  190. 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.

  191. Status of the Irish language (2)

  192. Article 8 of the Constitution provides as follows:

  193. (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.

  194. 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.

  195. Prior to the adoption of the present Constitution, Article 4 of the Saorstát Constitution provided:

  196. 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.

  197. 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.

  198. 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.

  199. 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:

  200. (3)

    Every bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both Houses of the Oireachtas, and if a bill is so passed or deemed to have been passed in both the official languages, the President shall sign the text of the Bill in each of those languages.

    (4)

    Where the President signs the text of a bill in one only of the official languages, an official translation shall be issued in the other official language.

  201. 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.

  202. 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.

  203. 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:

  204. 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]

  205. 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.

  206. 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.

  207. 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.

  208. 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”.

  209. A significant divergence.

  210. 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.

  211. 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.

  212. 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.

  213. 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:

  214. We accept of course what is contained in Article 8 of the Constitution of Ireland, where it states that the Irish language as the national language is the first official language. We also accept the definition given by the Superior Courts of that Article and therefore rights of people to carry out their official business (including court proceedings) through Irish if they so wish.

    It is trite law to observe that “a point not argued is a point not decided.

  215. 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:

  216. 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.

  217. 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.

  218. 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.

  219. I welcome, of course, certain dicta of Mr. Justice Clarke such as his declaration, in para. 16 of his judgment:

  220. 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. 18, 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.

  221. 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:

  222. 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.”

  223. This naturally leads to the conclusion, as it was expressed in O Beoláin v Fahy, cited above:

  224. .... 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.

  225. 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, it is declared that:

  226. .... some significant obligations lie on the State deriving from the special status accorded to Irish and:

    and:

    That those who wish to conduct their business, particularly with the State, in Irish enjoy certain language rights equally cannot be doubted.

  227. 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:

    1. 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.

    2. 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

    3. 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.

  228. 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.

  229. 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. 15:

  230. 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’.

  231. 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.

  232. The reason given by Mr. Justice Clarke’s conclusion quoted above is also stated with very frankly and clearly in the same paragraph:

  233. 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.

  234. 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.

  235. 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.

  236. 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:

  237. 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.

  238. 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.

  239. 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”.

  240. 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.

  241. A false antithesis

  242. 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. 19 Mr. Justice Clarke says:

  243. 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 ....

  244. 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.

  245. But despite the statistical insignificance of the point, it seems to me to raise a matter of principle.

  246. 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.

  247. 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:

  248. 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.

  249. 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.

  250. 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.

  251. I have already quoted with respectful approval Clarke J.’s statement that:

  252. 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.

  253. If that statement was unqualified then there would be no difference of opinion in this case. But it is immediately qualified as follows:

  254. 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.

  255. 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.

  256. 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.

  257. 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”.

  258. 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.

  259. 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”.

  260. 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.

  261. Stare decisis

  262. 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:

  263. 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.

  264. 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.

  265. 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:

  266. 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.

  267. 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.

  268. 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:

  269. .... 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]

  270. 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.

  271. 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:

  272. 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

  273. 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.

  274. 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”.

  275. The relevance of this evidence arises from the way in which the case has been met by the State Respondents, as set out below.

  276. Summary of foregoing

  277. 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,

  278. 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.

  279. Nature of appellant’s claim

  280. 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.

      1. 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.

      2. 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.

      3. 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.

      4. 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.

      5. Significance of Article 8.

      6. 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.

      7. 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.

      8. Secondly, Article 8 accords a primacy to the Irish language which is

        1. “the national language” and

        2. “the first official language”.

      9. The English language, by contrast is “recognised as a second official language.

      10. 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”.

      11. 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 ....”

      12. 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.

      13. 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.

      14. 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.

      15. 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.

      1. Academic support for that point of view is not lacking. Shulman in the Vanderbilt Law Review (1993) Vol 46, at p.177 says:

      2. 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?”

      3. 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.

      4. 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.

      5. Brown J. held:

      6. 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]

      7. 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.

    3. Thirdly, the appellant puts his case in terms of his right to equality before the law pursuant to Article 40.3.3 of the Constitution. An English speaker, who speaks a language “recognised as a second official language” is accorded the right to defend himself in the second official language before a tribunal which will understand him directly. The appellant says that he is treated unequally before the law if the State cannot secure to him a trial before a tribunal which will understand him directly in the National and first official language which is also his own mother tongue. As we shall see, on the authority of the Law Reform Commission, an informal policy of language assessment is applied to ensure the competence of juries in the English language, in English speaking areas, the very thing which was found legally impossible when used to secure an Irish speaking jury, is both the Circuit Court and the High Court, in this very case. I repeat, the State has not commented on the Law Reform Commission’s information at all.

  281. 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:

  282. .... 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

  283. 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:

  284. 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.

  285. 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.

  286. 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.

  287. This is the view which found favour in the High Court.

  288. Decision of the High Court

  289. 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:

  290. 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

  291. 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:

  292. Section 5 of the Juries Act 1976:

  293. 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.

  294. Section 11 of the Juries Act 1976:

  295. 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]

  296. Section 15(3) of the Juries Act 1976 provides:

  297. (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.

  298. Schedule 1, Part I of the Juries Act 1976 contains a list of persons who are ineligible for jury service which includes “incapable persons”:

  299. 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]

  300. Section 8 of the Official Languages Act 2003:

  301. 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]

  302. 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.

  303. 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:

  304. The Jury Districts in the Counties of Cavan, Galway, Kerry, Kildare and Monaghan are abolished and each of those counties becomes a Jury District.

  305. 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.

  306. Qualification of Jurors generally

  307. 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)

  308. 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.

  309. 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:

  310. 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]

  311. 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.

  312. 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] ....”

  313. 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.

  314. 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.

  315. 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:

  316. Identifying persons summoned for jury service who are unable to communicate in the English language.

  317. 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.

  318. 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.

    1. 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.

    2. 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.

  319. But the basis of incapacity, which starts with a mention of insufficient capacity to read, continues by referring to:

  320. Deafness, or other permanent infirmity, is unfit to serve on a jury.

  321. 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.

  322. 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.

  323. 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.

  324. 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.

  325. A Gaeltacht Jury District?

  326. 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.

  327. 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.

  328. 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:

  329. While there is no express English language requirement in order to be eligible for jury service, Courts Service staff dealing with jurors, and court registrars, play a role in identifying persons summonsed for jury service who are unable to communicate in the English language.

    If such a person is called for jury service, the terms of s.15(3) of the Juries Act 1976 mean that the onus is upon that person himself to declare that he is ineligible.

  330. 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”.

  331. 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”.

  332. 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.

  333. 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.

  334. The State’s principal Authority

  335. 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).

  336. That, indeed, is the entire ratio of MacCártaigh, both in the High Court and in the Supreme Court.

  337. 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.

  338. 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:

  339. 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.

  340. O’Hanlon J., at p.192 of the Report had said, again in my translation, in the High Court:

  341. 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]

  342. 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.

  343. 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.

  344. 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.

  345. 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.

  346. Power to require a Gaeltacht Jury District

  347. 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.

  348. 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.

  349. 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.

  350. 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.

  351. The appellant seeks in these proceedings, amongst other reliefs:

  352. 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.

  353. 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:

  354. 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.

  355. 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.

  356. 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.

  357. 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.”

  358. 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.

  359. Henchy J., with whom a majority of the Court agreed said at p.551:

  360. 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.

    Justice John MacMenamin

  361. I am in agreement with the order proposed by Clarke J. but as my approach differs somewhat from his, I would like to indicate my reasoning. In order to do this, it is necessary to set out some of the surrounding detail. I do so, having regard to the full factual summary contained in Hardiman J.’s judgment, with which I am unfortunately unable to agree.

  362. The appellant resides in Lower Salthill in Galway City. He was born in Dublin. Since the age of three, he has lived in Rosmuc, Co. Galway, where he attended school. Rosmuc is, of course, in the Fíor-Ghaeltacht. The appellant says that he did not master the English language until late in his teens. He is charged with two criminal offences, allegedly committed in the South Connemara Fíor-Ghaeltacht. He is to be tried in the Circuit Criminal Court in Galway.

  363. The appellant is charged, first, with assault and, second, that, in the course of a fight, he unlawfully produced, in a manner likely to intimidate another person, an article capable of inflicting serious injury, to wit, a broken whiskey bottle.

  364. The appellant makes an attractive case, persuasively presented by counsel. He is to be tried by jury for these alleged offences. He asserts that, as a native Irish speaker, he is entitled under Article 8 of the Constitution of Ireland to trial by a bilingual jury. When reduced to its essentials, the case may be put thus: the appellant says that to vindicate his language rights, the jury pool should be drawn from a segment of Co. Galway, namely that part of South Connemara where Irish is often the vernacular.

  365. Article 8 of the Constitution provides:

  366. (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.

    Statistics

  367. As the jury panel is to be drawn from the county of Galway, the appellant refers to figures from the Census of 2006 as to national and regional language competence in Irish; and to a report prepared by Dr. Conchúr Ó Giollagáin, a lecturer in socio-linguistics, and other experts, on the question of language usage in the county of Galway. The aforementioned Census reveals that 41.8% of the population of the State aged three years and over can be classified as having the ability to speak the first national language. In the county and city of Galway combined, 49.8% of those enumerated had professed the ability to speak Irish. 281,586 people over the age of three years live in the county. Of these, 12,772 speak Irish daily; 10,890 weekly; and 38,263 less often. These figures are only of limited assistance to this Court. They relate to the population over three years and, thus, not to the category of adults over the age of 18 years, who would be eligible for jury service. They also do not appear to address the question of persons over the age of seventy years who are ineligible for jury service.

  368. Furthermore, the degree of self-reporting involved may limit the reliability of the answers. In an affidavit sworn herein, Dr. Ó Giollagáin points out that, in a segment of Co. Galway, the Connemara Gaeltacht stretches approximately from east of An Spidéal to An Chaiseal in west Connemara. In that segment, 67% of the people speak Irish on a daily basis. In some areas, 90% of people do. The general population of this identified district is, as I understand it, 13,444. Dr. Ó Giollagáin states that, in some areas, some 85 – 90% of the people would be able to speak Irish in a manner which would allow them to understand legal matters. Thus, it is said that 12 people, chosen at random, but from this identified area, would be able to understand Irish in a legal case without the need for an interpreter. Putting matters another way, he says it would be possible to so define a jury or a jury district panel so as to bring about a high likelihood of a panel of bilingual speakers such as the appellant is seeking.

  369. Dr. Ó Giollagáin’s evidence was not contested by the State and I am prepared to accept it. However, it begs the question – if the Minister for Justice were, indeed, ex hypothesi to designate the district as identified as a jury district, what would be the nature of any objection by a person such as Mr. Ó Maicín were an intepreter to be present to assist, say, one or two jury members less competent in the Irish language (if such were lawful), while the majority proceeded to absorb the evidence and the argument in the Irish language? In other words, the claim in this case is not just for the designation of particular stretch of South Connemara as a jury district, but it reaches further to the exclusion from any such juries of those who are not, or who feel they are not, 100% competent to hear the intricacies of legal argument and testimony in the Irish language.

  370. I should pause at this juncture to state that, in so far as the dissenting judgment by Hardiman J. in this case summarises the argument put forward by the State, I believe that summary could be put in another way which might more fully convey what I think was intended by counsel. Hardiman J. summarises that position being as two-fold, namely that it is impossible to assess language competence so as to achieve the desired aim; and secondly, that the designation of jury districts is an act of executive discretion vested in the Minister. As regards the first point, I understood the State to argue that it was impossible for the Court to calibrate such language competence. And for the second point, I fully agree that the designation of jury districts is primarily, and in the first instance, a matter for the executive, albeit subject to judicial review on principle.

  371. The appellant’s submissions

  372. Mr. Ó Maicín wishes to prepare, arrange, administer and conduct his defence in the first national language. He points out that as it is his native language, the national language, and the first official language of the State, and that he has a constitutional right to conduct his case without obstacle or disadvantage, just as in the case of any person who wishes to conduct their defence in the English language. His solicitor made these points in a letter to the Director of Public Prosecutions on the 23rd March, 2009.

  373. In that same letter, the appellant’s solicitor makes the point that it was the Director of Public Prosecution’s custom to have cases prosecuted in English. The appellant’s solicitor says that, in the interests of fair play, it would be necessary that the prosecutor be able to speak Irish, and that the prosecution be conducted in the Irish language, with each witness choosing whatever language they preferred, whether it be Irish or English. The Director did not respond to this letter. Neither the identity of prosecuting counsel, nor the language to be used by the prosecution is an issue in this case however. What the appellant does seek is a bilingual jury. He relies on an impressive array of foreign authorities especially from the Canadian courts, and reports on the usage of the Welsh language in the courts of Wales. It cannot be denied he makes a strong moral case.

  374. The appellant re-iterates that (as is the case) a court may not inquire as to whether he has knowledge of the English language; he says that, as a person who wishes to use the Irish language in court, he has a right under the Constitution and under law to choose the first official language of the State. I pause here to comment that in making these points, the appellant is relying on principles which are already very well established in our case law. There can be no doubt that the appellant is entitled to present, and put, the entirety of his own case in the first national language. He is also entitled to be furnished with Irish language versions of the Book of Evidence in the prosecution, any relevant rules of court, and all other documentary material necessary for him to be made aware of the case against him.

  375. MacCárthaigh v Ireland

  376. The fact that there is well-established jurisprudence on this subject has a considerable relevance to this case. Our courts are governed by the doctrine of precedent. The factual background of each case is important in order to see whether that case is governed by a precedent. Are the facts and legal principles so similar to a past decision that they cannot be distinguished? As will be seen, in this case, geographical location is relevant. It is therefore necessary to point out that, judging from the papers in the case, the appellant is now not living in the Connemara Gaeltacht but, rather, in Lower Salthill in Galway City. He does not say for how long he has been living in Salthill, which is, technically, part of the "Galltacht", a term suggesting "foreignness", which is now, itself, strange in the diverse population of today's Ireland.

  377. Against this, the alleged offences did occur in an area well within the Fíor-Ghaeltacht. Many residents, both in the city and county of Galway, have the ability to speak Irish as well as they speak English. All these facts are relevant in order to consider the question whether this case can be distinguished from the precedent set in the judgment of this Court in MacCárthaigh v Ireland [1999] 1 I.R. 200. It is necessary to look at MacCárthaigh and the legal principles established therein to assess the extent of the task the appellant takes on. Can MacCárthaigh be distinguished? Are the principles pronounced there to be applied in this case? Is that authority directly on point? Are the circumstances so different that this case can legitimately be distinguished? Alternatively, can it be said that the earlier decision is in error?

  378. In MacCárthaigh, the appellant, who lived in Dublin, having been charged with criminal offences, wished to conduct his own side of the criminal proceedings in the Irish language. Just as in this appeal, he wished to have a jury which could understand the Irish language. Thus far, the facts of that case are very similar to the instant case. The appellant here apparently no longer lives in the Gaeltacht. Just as Mr. MacCárthaigh did, he lives in an area not so designated, but, of course, he has close connections with Rosmuc.

  379. There is another factual distinction, apart from the obvious linguistical contrast between Dublin and the Galway Gaeltacht. In Mr. Ó Maicín’s case, the fourth named respondent has ordered that the judge who will preside over the appellant’s forthcoming trial should himself or herself be sufficiently competent in the first national language so as to be able to work without the assistance of an interpreter. This order goes further than any right established in MacCárthaigh, where no such order was made. The order made as to the judge’s language competence is by no means unimportant. In fact, as will be explained, that order could itself be said to be at variance from the principle identified in another case in the same area of law, Ó Monachain v An Taoiseach [1986] I.L.R.M. 660, discussed later.

  380. The role of the trial judge

  381. The judge, of course, has a central role in any trial before a jury; must be responsible for the proper administration of the trial; and rule on all controversial matters which arise during the trial itself. If the judge in the case is bilingual, or at least competent enough in Irish to work without the assistance of an interpreter, this must significantly diminish any concern the appellant has regarding the quality of translation or interpretation. The fact that the judge will be able to understand the evidence in both official languages may help to ensure any difficulties in translation are addressed immediately, so that the jury are not under any misapprehension as to nuance or meaning in evidence. In this aspect, therefore, the extent to which the appellant’s language rights have been vindicated and protected in fact go further than in MacCárthaigh. In addition, the order may be said to bolster the appellant’s right to a fair trial under Article 38 of the Constitution.

  382. What then are the distinctions between this case and MacCárthaigh? As already outlined, Mr. Ó Maicín grew up in the Fíor-Ghaeltacht; the alleged offences took place in the Fíor-Ghaeltacht; the alleged injured party also apparently resides in the Fíor-Ghaeltacht. All of these are facts which differentiate this case from MacCárthaigh. The question then is whether these differences are sufficient to make the case distinguishable in law from MacCárthaigh? I do not understand the appellant’s case to be that MacCárthaigh was wrongly decided.

  383. I should mention at this point one clear difference between the two cases: MacCárthaigh preceded the seminal judgment of the Supreme Court of Canada in R. v Beaulac [1999] 1 S.C.R. 768. There, that Court followed an innovative and purposive interpretation of language rights involving positive participation to such a degree as would require, say, a French-speaking jury for a person invoking his French language rights. This was so notwithstanding that in the province concerned, British Columbia, French speakers are in a minority, as they are in some other provinces also covered by this federal ruling on the Canadian Charter. Nonetheless, persuasive though it may be, Canadian jurisprudence is not binding in this jurisdiction, and it would be misleading to suggest that Irish superior court precedent hangs in the balance whenever a court of another country takes a different approach involving a radical and purposive approach to provisions both in statute law, and the Charter of Fundamental Rights.

  384. Stare Decisis

  385. In Attorney General (Society for the Protection of Unborn Children) v Open Door Counselling Limited [1988] I.R. 593, Keane J. pointed out that the protection of constitutional rights may, on occasion, justify a departure from the strict application of the rule of stare decisis governing the conclusiveness of Supreme Court decisions. But this arises only in truly exceptional cases. It goes without saying that the issue in question is matter of great importance for the appellant himself. The issues he raises are serious ones. However, it cannot be said that the nature of the issue at stake here is precisely comparable to the range of rare cases where this Court has traditionally departed from the application of the doctrine of stare decisis.

  386. By way of illustration, in McGimpsey v Ireland [1990] 1 I.R. 110, this Court overruled earlier dicta of the Court in Re Article 26 and the Criminal Justice (Jurisdiction) Bill 1975 [1977] I.R. 129, which had suggested that the then provisions of Articles 2 and 3 of the Constitution did not constitute a claim of right to the territory of Northern Ireland. This was indeed an issue of grave jurisprudential import.

  387. In the past, arguments have been advanced that this Court should depart from the application of the doctrine when an earlier decision is said to be wrong; but, here, I do not think the appellant makes that case about MacCárthaigh. But what also underlies this appeal is the weight of authority which the appellant seeks to supplant. The established jurisprudence at issue here concerns not just the extent and limitation of language rights based jurisprudence; but also the nature and composition of juries and the constitutional status of jury trial itself.

  388. It is necessary, of course, to place great emphasis on the language right, which arises here. But there are also other constitutional guarantees and duties which fall to the State and which are the prerogatives and entitlement of all citizens. The appellant's case can be put very simply in a way that demonstrates its force. He says Irish is the first official language of the State. It is his native language. Its position is enshrined in the Constitution. Why in those circumstances, having allegedly committed two offences in the Fíor-Ghaeltacht, can he not be entitled to a bilingual jury?

  389. I pause here to observe that I did not understand either side to make any case in this appeal regarding the applicability or otherwise of Article 8.3 of the Constitution. That said, I do not think it is entirely inappropriate to refer to that provision as the task of constitutional interpretation imports, inter alia, harmonious interpretation, and this means harmony between provisions as well as within provisions. Obviously, it would not be appropriate to base a decision on a point not argued. But whatever might be mooted in relation to Article 8.3, it is not directly relevant to the core constitutional issue in this case, namely whether the Supreme Court must compel the executive and legislature to create a jury district, such that Irish-speaking accused persons, who opt for Irish as the trial language, would be granted an all-Irish-speaking jury as of right. I think the duty of the State goes further than merely to seek to encourage the status of the first national language. Subject to harmonious interpretation with any other relevant provisions of the Constitution, it is to encourage in every practicable way; not to place any obstacle, in the way of a person wishing to conduct his interactions with the State through Irish.

  390. Language rights in the administration of justice

  391. What is the nature and extent of the language right at issue here? The editors of Kelly: The Irish Constitution (4th Ed.) summarised the extant jurisprudence thus:

  392. The basic principle here is that a litigant is entitled to use his native language when presenting his side of the case to the Court, but considerations of natural justice apart, he cannot impose his choice of language on the other parties to the litigation.

    As will be seen from MacCárthaigh, the category of “other parties” has been held to involve the judge, and the jury. It is important to place this judgment in its true jurisprudential context however. It is not the sole authority bearing on this issue.

  393. In Ó Monachain v An Taoiseach, issues akin, but not identical, to the present case arose. There, this Court upheld the right of a party to proceedings to give his evidence in Irish, even were it to be the case, he was testifying in a part of the country where English was the vernacular. Henchy J. held that the appellant was not entitled to require that the entire proceedings be conducted in Irish, even in the Donegal Gaeltacht, an area where the first national language was generally spoken. One point which arose is very important; the appellant also made the case that, as an accused person in a prosecution, he was entitled to a District Justice who was sufficiently competent in the Irish language to understand the testimony without the need for an interpreter. As well as determining law, a District Judge in such a case is a decider of fact; just as is a jury in a trial in the Circuit Court. The appellant relied on s. 71 of the Courts of Justice Act 1924, which provided that, so far as “practicable”, the District Judge assigned to an area where the Irish language was in general use should be able to dispense with the use of an interpreter when evidence was given in Irish. While affirming the right of the accused to testify in the first national language, Henchy J. held it was “not possible to find authority in s. 71, or any other provision to compel a judge to hear a case without the assistance of an interpreter.” I do not read the phrase “any other provision” as being confined to statute law. As will be seen, this is an interpretation of the practical extent of Article 8 of the Constitution and it extends to the judge as decider of fact as well as decider of law.

  394. In An Stát (MacFhearraigh) v MacGamhnia (Unreported, High Court, O'Hanlon J., 1st June, 1983), O’Hanlon J. reaffirmed the right of a litigant to use Irish in conducting his own case and in cross-examination. Moreover, that High Court judge held that in the light of the constitutional status of the language, a court or a tribunal had no business enquiring whether the appellant could speak English and that, even at a cost, the State was obliged to ensure that a litigant was not placed at any disadvantage by use of the national language.

  395. I would, therefore, wish to express my agreement with, and acceptance of, the reasoning in those authorities, decided by courts established under the Constitution. I agree, too, with subsequent, more recent judgments of this Court, in particular by my colleague, Hardiman J., where the rights of persons to have legal proceedings and rules of court available to them in Irish have been vindicated. These measures ensure that such persons can, if necessary, conduct their case in Irish as part of the practical vindication of the language right (and the State’s duty) contained in the Constitution. But the harmonious interpretation of the Constitution requires that rights and duties be reconciled and balanced in light of the factual context, both intrinsic and extrinsic to the case at hand.

  396. But none of the cases, thus considered, establish that a jury must be bilingual (although it might be said the principles arose conceptually in Ó Monachain). The jury question arose squarely in MacCárthaigh. Therefore, the judgments of the High Court and Supreme Court in the latter case require careful analysis here.

  397. In the High Court, O’Hanlon J. carefully examined both Irish and United States jurisprudence on the question of how a jury is to be composed so as to accord with constitutional principles, specifically in accordance with Article 38.5 of the Constitution.

  398. This Article provides that “no person should be tried on any criminal charge without a jury” on a non-minor offence save in the case of the exceptions identified in Articles 38.3 and 38.4. None of the exceptions apply here. The High Court judge (himself both an eminent constitutional lawyer and elegant user of the Irish language) quoted the statement of the Supreme Court of the United States in Thiel v Southern Pacific Company (1946) 328 US 217 at p. 227 to the following effect:

  399. Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case .... The broad representative character of the jury should be maintained, partly as an assurance of diffused impartiality and partly because sharing in the administration of justice is a phrase of civic responsibility.

  400. I pause now to identify the characteristics identified by the Supreme Court of the United States, which O’Hanlon J. adopted and which Hamilton C.J. approved on appeal to this Court. Not only is a jury to be drawn from a pool of persons “broadly representative” of the community; it is also to be “impartial in a specific case”; what is necessary is “diffused impartiality”.

  401. O’Hanlon J. quoted a passage from Taylor v Louisiana [1975] 419 US 522, also relevant here. In Taylor, the Supreme Court of the United States pointed out that the “fair-cross-section requirement”, fundamental to a jury trial, is not complied with, if the jury pool is made up only of “special segments of the populace or if large, distinctive groups are excluded from the pool”. The Supreme Court of the United States stated:

  402. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.

    [emphasis added]

    In addition to the concept of diffused impartiality therefore, the jury pool cannot only be composed of “special segments of the populace”. Putting this test in positive language, the guarantee of jury trial is defeated if “large distinctive groups are excluded” from the jury pool.

  403. Applying these indicia to the facts in MacCárthaigh, O’Hanlon J. concluded that it was a requisite of every jury that it could be said that the pool from which it was drawn, represented “every category of the public in the area to which the action is to be heard” (emphasis added). There cannot be the outright exclusion of entire categories of the community from participating in juries without good cause.

  404. On appeal, Hamilton C.J., speaking for this Court, specifically approved each of the various citations contained in O’Hanlon J.’s judgment. The then Chief Justice accepted the point that difficulties can arise regarding interpretation of evidence such as loss of nuance, and risks and difficulties in translation. There is one passage in Hamilton C.J.’s judgment which is of some significance, which can only be understood by reference to the context. Hamilton C.J. stated as a matter of principle at pp. 212-213:

  405. If every member of the jury had to be able to understand legal matters in the Irish language without the assistance of an interpreter most of the people of Ireland would be excluded. That would amount to a violation of Article 38.5 of the Constitution, as the Supreme Court explained it in the case of de Búrca v The Attorney General [1976] I.R. 38 and The State (Byrne) v Frawley [1978] I.R. 326.

    [emphasis added]

    The ratio of MacCárthaigh then can only be analysed by reference to de Búrca and State (Byrne) v Frawley [1978] I.R. 326, as will presently be explained.

  406. The case-law establishes, then, that a jury pool must be impartial in an individual case and not exclude large distinct groups or identified segments in the community. It cannot be composed only of special groups. It must include every category of the public in the area in which the action (or trial) is to be heard. A fortiori, it cannot be such that “most of the people of Ireland will be excluded”. But can it be such that minority category in an area are entirely excluded?

  407. In the case of de Búrca v Attorney General [1976] I.R. 38, a challenge was brought to both a qualification for jury service based on the payment of rates, and a provision effectively excluding women. It was successfully pleaded that both conditions trenched on the impartiality and representation of the community. On these exclusions, Henchy J. pronounced at p. 74:

  408. There is no doubt that the primary aim of s. 5 of Article 38 in mandating trial by jury for criminal offences other than minor ones is to ensure that every person charged with such an offence will be assured of a trial in due course of law by a group of laymen who, chosen at random from a reasonably diverse panel of jurors drawn from the community, will produce a verdict of not guilty, free from the risks inherent in a trial conducted by a judge or judges only, which will therefore carry with it the assurance of both correctness and public acceptability that might be expected from the group verdict of such a representative cross section of the community. Obviously in order to carry out his constitutional function the jury must have certain indispensable attributes in both its composition and its operation.

  409. The judge then said at p. 76:

  410. What is called for – and this goes to the essence of this aspect of the aspect of the case – is the judicial determination as to whether jury panels drawn exclusively from persons rated in respect of property of the prescribed rateable valuation can be said to be representative of the citizenry of the relevant jury district.

  411. He posed this question:

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

    [emphasis added]

  413. He went on to say:

  414. The minimum rating qualification, in my opinion, produces that result. The line it draws between the eligible and ineligible produces what some people would call a socio-economic classification. A rating qualification shuts the door on all citizens who are not liable to pay rates. This embargo is constitutionally objectionable not simply because it renders ineligible a substantial section of the citizenry but because it ensures that a jury will not include non-ratepayers. A jury so circumscribed in composition is no less wanting in the representativeness demanded by the guarantee in s. 5 of Article 38 than would be a jury drawn from a panel confined to taxpayers. It excludes a range of mental attitudes, because they will be absent from jury box, will leave an accused with no hope of the contribution they might make in the determination of guilt or innocence A jury which is so selective and exclusionary is not stamped with the genuine community respresentativeness necessary to classify it as the jury guaranteed by s. 5 of Article 38. It is therefore unconstitutional.

  415. Turning then to the exemption of women from jury service provided for under s. 3 of the Juries Act 1927, Henchy J. stated:

  416. In regard to the exemption of women, s. 3 of the Act of 1927, in laying down the qualifications for jury service, excludes those who are disqualified or exempt. Section 5 of the Act .... places women in the category of those who are exempt but are entitled to serve if they make application. It is the exemption of all women, save those who opt for jury service, that the plaintiff say is constitutionally objectionable.

  417. Henchy J. explained later at p. 77:

  418. The absence of women from juries means an unconstitutional system of selection for two reasons. First it fails the test of representativeness because it means that some 50% of the adult population will never be included in the jury lists. Granted that many of the women who make up that 50% would be entitled to exemption on personal grounds such as pregnancy; nevertheless, the fact remains that a whole swathe of the citizenry (including some 200,000 single women) will be outside the range of choice open to an accused person facing a trial by jury. Secondly, and of even greater importance, that narrowed choice means that a woman's experience, understanding and general attitude will form no part in the jury processes leading to a verdict. Whatever may have been the position at common law or under statute up to recent times, it is incompatible with the necessary diffusion of rights and duties in a modern democratic society that important public decisions such as voting, or jury verdicts involving life or liberty, should be made by male citizens only. What is missing in decisions so made is not easy to define; but reason and experience show that such decisions are not calculated to lead to a sense of general acceptability, or to carry an acceptable degree of representativeness, or to have the necessary stamp of responsibility and involvement on the part of the community as a whole. Juries recruited in that way fall short of minimum constitutional standards no less than would juries recruited entirely from female citizens.

  419. To like effect, in Byrne, Henchy J. rejected the very concept of an “artificially shrunken and selective” jury list as being flawed, in the same way as a “sweepstake in which 80% of the tickets bought had been excluded from the pool from which the winning tickets were drawn”. The decision had to have the quality of a “community decision”; and a nexus with that community for constitutional legitimacy.

  420. A jury then must be selected from a pool genuinely representative in character and reflecting the diffuse nature of the community. Among the necessary characteristics are that it be, and perceived to be, constituted with the necessary assurance of diffused impartiality; randomly and indiscriminately drawn from a pool broadly representative of the community, inclusive of large distinctive groups within that community. What is necessary is the “stamp of responsibility” or involvement as part of the community as a whole. The pool must be representative of every category of the public in the area in which the trial is to be conducted; were it not so, it would not be constitutionally compliant. There is, too, a natural justice dimension to the requirements.

  421. Would the absence of bilingual jury amount to a violation of Article 38.5 of the Constitution? It cannot be denied that there is, at one level, a reconciliation to be struck here between two constitutional rights. At its simplest, the test is whether the language right under Article 8 of the Constitution, or as an aspect of natural justice, is one which can be generally asserted without limitation against the constitutional duty to provide a jury trial under Article 38.5 and the right of the appellant to have a trial “in due course of law”.

  422. I am drawn to conclude that the Article 38.5 constitutional duty, which is engaged here, is mandatory. This duty arises in the context of the vindication of the fundamental right to liberty of the citizen protected under Article 40 of the Constitution. The duty also arises in the vindication of the rule of law and the fundamental value entrenched in Article 38 that no person shall be deprived of liberty save after a trial in due course of law. But the proper administration of criminal justice is also a duty owed to the public at large. It is not just the prerogative of an accused person.

  423. The Official Languages Act 2003

  424. In this context, the provisions of the Official Languages Act 2003 are relevant. The object of this Act is to promote the use of the Irish language in the administration of justice. Section 2 of that Act defines “proceedings” as meaning “civil or criminal proceedings before any court”. Section 8(1) of that Act provides:

  425. A person may use either of the official languages in or in any pleading or document issuing from, any court.

    Section 8(2) provides:

    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.

    Section 8(3) provides:

    For the purposes of ensuring that no person is placed at a disadvantage as aforesaid, the court may call 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.

    These provisions address the duty of every court conducting any proceedings including criminal proceedings.

  426. Section 8(4) provides for a situation where the State or a public body is a party to civil proceedings before a court. There, but only there, it is provided:

  427. (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 languages appears to it to be reasonable, having regard to the circumstances.

  428. I would merely observe, that the differentiation between civil and criminal cases to be found in the Act, can derive only from the interpretation which has been given in the case law as to the practical extent to which rights contained in Article 8 of the Constitution are to be vindicated. The State’s policy, enshrined in the legislation, appears to be that Article 38.5 of the Constitution places parameters on what may be practicable in criminal proceedings derived from the mandatory constitutional nature of the rights and duties arising in the case of judges, juries and the prosecution.

  429. These provisions can only be seen as reflective of ways in which the well settled constitutional rights and duties are to be vindicated. The appellant will have the right to testify in Irish. He has a right to all relevant documents to be provided for him in the first official language including the Book of Evidence and any law or rule of court. His counsel has the right to conduct his case in the first national language. Any evidence given in the second national language must be translated into the first language for the appellant’s benefit. Insofar as the prosecution is to be conducted in the English language, the appellant has the right to have every bit of that translated into the first national language. His counsel may address the jury in the first national language. He may also address the judge (who will be proficient in the first national language, in that language).

  430. The framework of s. 8(3) of the Official Languages Act is no coincidence. While it is not correct to use a statutory provision as the basis for supporting a constitutional proposition, I merely remark in passing that the Act was clearly based on the same view as I happen to express here – namely, that a sufficiently good translation service met the requirements of Article 8 in so far as juries are concerned. Our Constitution involves the practical integration of ideals and political realities. The State’s commitment to the first national language in that Constitution, as seen by statute and in the case law, demonstrates that we have in fact travelled a long way from the views of O’Brien L.C.J., as expressed in the judgment in McBride v McGovern [1906] 2 I.R. 181. It need hardly be added that this appeal was itself conducted in the first national language.

  431. This leads me to make another observation, which is that multilingualism, rather than monolingualism, is increasingly a feature of our modern world, our continent, and our state. While at a European level, it is undoubtedly regrettable that minority languages come under threat from dominant languages such as English, nevertheless it is also true that many European citizens are fluent in two or three languages, and, accordingly, governmental or private business is often conducted simultaneously in more than one language. Crucially, many participants at such meetings may listen to a speaker for the purposes of tuning into his intonation while also listening intermittently or at low-volume to an interpreter to ensure that difficult passages are correctly understood. A fluid interplay between languages characterizes such events. Modern interpreters are sophisticated in the timing of their interspersions, their vocal inflexions and so on. An analogy in Ireland is where interpreters are available for parliamentary proceedings, which are, by their very nature of fundamental constitutional significance.

  432. In turn, insofar as a person such as Mr. Ó Maicín has a right to see interpretive services being arranged for a jury – and he does – this might, in fact, best materialize, not simply into an English interpretation which all jurors would exclusively rely, but rather the availability of an English interpretation which some jurors may wish to avail of – some out of necessity and others more out of an abundance of caution.

  433. Conclusions

  434. I think that the appellant faces the insurmountable obstacle that the well settled fundamental principles identified in MacCárthaigh, de Búrca, and Ó Monachain so very clearly apply. There is established jurisprudence here. No case has been made that all of these were wrongly decided. I am not persuaded that the facts of this case require an entirely different result. The principles established in previous cases establish that it is not constitutionally permissible for any person, in any part of the country, to seek to have a jury panel devised or “tailored” for them. The principles that have been identified arise in the case of all jury trials, in all parts of the State. The jurisprudence specifically prohibits the concept of different constitutional rights arising in specific locations, or because of language usage, even in the case of the national language. The duty which devolves on the State is to ensure that the jury panel be perceived as impartial and to be representative of the people of the State, as Article 3 of the Constitution puts it, “in all the diversity of their identities and traditions”. Mr. Ó Maicín’s case cannot be distinguished, because the principles identified in the case law apply to all jury trials, irrespective of their location, or the identity of the defendant.

  435. Article 8 confers the right to use either of the official languages in various contexts. In the court context, this entails the correlative right to be understood by the judge and jury (if any), in order to ensure justice in court. The Article 8 right is essentially a language right and entails choice, without regard to whether the claimant is monolingual or bilingual. This is different from the case where someone speaks neither of the official languages sufficiently well or at all, and requires to give evidence in a third language, in which case a translation will be arranged purely in the interests of justice.

  436. The Article 8 right is available to every Irish citizen. It is, and should, therefore, be irrelevant that the offence was alleged to have been committed in a Gaeltacht or that the accused and the victim were Irish speakers. Indeed, if the right contended for in this case were to be granted, it would be limited not just to Gaeltacht areas, but arguably to only a few Gaeltacht areas in the country which were large enough to warrant special jury districts being created for them (and not so small that juries would be utterly local and parochial). In other words, the right argued for would privilege Connaught and Munster “Gaeltacht Gaeilgeoirí” over, say, Leinster Gaeilgeoirí, and could privilege large-Gaeltacht Gaeilgeoirí over small-Gaeltacht Gaeilgeoirí.

  437. Even if Article 8 were prima facie to imply the right contended for, it would have to stop short once confronted by other rights and duties. While Article 8 is fundamentally about language rights, it is being invoked here in the context of the administration of justice and which, therefore, must be interpreted in that context. There is a duty on the State, on behalf of the people, to prosecute crimes before representative juries. This, in turn, correlates with the right of the people to have crimes so prosecuted. The people of Ireland are entitled to sit on such juries and, whereas jury districts can be created so as to create localized microcosms of the population of Ireland, I do not accept that such local sub-populations must be further subdivided along linguistic lines for jury purposes. Leaving aside the possibilities of Article 8(3) – which as already stated does not directly arise in this case, and was not invoked in argument either – I cannot accept that this Court should, or could, mandate the executive and legislature to tailor a particular Co. Galway jury district in a particular way. Such a course would involve, in all analogous cases, many detailed calculations which are not the typical preserve of the courts.

  438. I do not deny that the issues raised by the appellant are of great importance. It must be a cause for regret that the defence of this appeal necessarily relied on the fact that the national language is not the vernacular language of all the people. But the diverse nature of our population is also an undeniable fact; and the Constitution mandates that the composition of jury panels be such as to be representative of the entirety of the community in all its diversity. For these reasons, I would dismiss the appeal.


all rights reserved