Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

10. Inclusive juries in other jurisdictions

Yes, I did have to wait around the courthouse for hours. It was inconvenient, but I did serve on a jury. I had the assistance I needed to read printed materials submitted as evidence at the trial. And, as I look back, I am truly glad that I chose to fulfill my duty as a citizen. Jury duty was educational and rewarding^[1]
—Comment made by a blind juror in the United States in 1991

If they can see that I can do it … Then they know that they can do it, too. ^[2]
—Comment by a deaf juror in the United States in 2015

Overview

• Other jurisdictions have already removed barriers to participation for jurors from the subject groups while upholding the right to a fair trial and maintaining the efficiency of the jury trial system.

• People in the subject groups have successfully served on juries overseas for some time. This happens flexibly and without controversy.

• Recent reforms in the Australian Capital Territory and practice overseas have provided valuable guidance in developing our recommendations.

Changes to jury selection in Australia

Reform in the Australian Capital Territory

10.1 In 2018, the Australian Capital Territory (ACT) became the first jurisdiction in Australia to amend its laws to require consideration of ‘reasonable supports’ and to limit the application of the 13th person rule. The changes to the law in the ACT are broader than those contemplated in this report because they apply to people beyond the subject groups.

10.2 When the legislation was read before the Parliament, Minister for Mental Health Shane Rattenbury noted that the provision of reasonable supports is ‘consistent with decisions of the UN Committee on the Rights of Persons with Disabilities’.^[3] Attorney-General Gordon Ramsay commented:

All Canberrans should be able to participate in the ACT’s legal processes, regardless of sex, ethnic origin, religion, language or disability status, and, with that goal in mind, as has been well noted by other speakers, this bill introduces provisions to support the participation of people with disabilities or language difficulties as jurors.^[4]

10.3 The Juries Act 1967 (ACT), amended in 2018, puts a positive obligation on the trial judge to consider if ‘reasonable support’ could be provided to enable a person with disability or insufficient understanding of the English language to properly discharge their duties if they wish to serve and are not otherwise excused. If satisfied that supports could reasonably be given, the judge must make a direction for supports to be provided.^[5]

10.4 The legislation lists some considerations for assessing whether supports can be reasonably provided.^[6] If the judge makes a direction allowing an interpreter or support person to assist the juror, the common law rule against having a non-juror in the jury room is limited by the Act,^[7] subject to the interpreter or the support person agreeing to take an oath or affirmation that they will not participate in or disclose anything about those deliberations.^[8]

10.5 At the time of writing no one has yet served as a juror or attended as a panel member with a support person or Auslan interpreter in the ACT. We understand from the sheriff that enquiries have been made about the use of supports but those pool members have subsequently asked to be excused from jury service.^[9]

Reform in the Federal jurisdiction

10.6 Jury trials are also available in the Federal Court of Australia. In 2009, the Federal Court was conferred with the power to hear indictable criminal cases in relation to cartel offences contained in sections 45AF and 45AG of the Competition and Consumer Act 2010 (Cth).^[10]

10.7 No legislative reforms have been made to enable the Court to implement reasonable adjustments to facilitate access for people in the subject groups. However, under the Federal Court of Australia Act 1976 (Cth), the sheriff, in exercising the power to excuse a potential juror due to their ‘inability, in all the circumstances, to perform the duties of a juror to a reasonable standard’ (on application of the person, or on their own initiative) ‘must have regard to the Disability Discrimination Act 1992 [Cth]’.^[11]

10.8 All Federal Court buildings have wheelchair access and are equipped with hearing loops. All jury boxes are designed to accommodate people in wheelchairs.^[12] Further, the Federal Court’s website states:

The Federal Court of Australia does not discriminate against any person with a disability and will make reasonable adjustments to enable a person with a disability to take part in jury service. If you consider that your disability will impact your ability to serve as a juror, you should provide details. You may also consider providing a letter from your medical provider or a copy of a health card or similar document which confirms details of your disability.^[13]

10.9 The Federal Court’s first jury trial was conducted in 2021. It was a 12-week trial held in Melbourne. The Court empanelled 14 jurors.^[14] One of the jurors at the trial wore a hearing aid, and informed the deputy sheriff. The Court made the following adjustments:

• consulting with the juror and requesting the juror to seek advice from their treating health practitioner as to the best options available for the juror to participate in the trial as a juror

• moving the juror to a place in the jury box that enabled optimal audio range

• moving counsel, when speaking, to ensure that their voice could be heard clearly by the juror

• implementing a trial-specific procedure with the Court’s transcription provider to have technicians ‘soundcheck’ multiple times during the day

• the Court purchasing an audio device that was compatible with the juror’s hearing aid so the Court’s audio loop could be effectively utilised

• the trial judge regularly checking with the jury as to whether evidence and trial participants could be clearly heard. These checks are recorded in the transcript.^[15]

10.10 The Federal Court juries officer manuals reflect the practices implemented in the Melbourne trial.^[16]

10.11 Regarding the provision of training for court staff, the Federal Court Judicial Registrar (Crime) and Deputy Sheriff told the Commission:

The Court provides all Court employees with equity and diversity training. In addition to this training the Jury Team, prior to each trial, is provided training in respect of jury management and includes training in respect of the manuals.^[17]

10.12 The Federal Court has told the Commission that in 2019 the Federal Government announced plans to expand the Federal Court’s jurisdiction in relation to corporate crime. If this occurs it is expected to significantly increase the number of jury trials conducted in the Court.^[18]

Status of reforms in other Australian states and territories

10.13 Other states and territories in Australia have not removed barriers to participation in jury service for people with disabilities. They all have similar legislation to Victoria that either ‘refers to disability as a ground for disqualification from serving as a juror or implies that persons with disability may be disqualified on the grounds that they are not capable of performing the duties of a juror’.^[19] The Northern Territory is the only jurisdiction that expressly states ‘a person who is blind, deaf or dumb or otherwise incapacitated by disease or infirmity from discharging the duties of a juror’.^[20]

Inclusive juries in the United States

10.14 The inclusion of people from the subject groups on juries in the United States has occurred for over three decades and is relatively routine.^[21] We discussed American processes in more detail in the consultation paper.^[22]

10.15 As long ago as 1984 the New York Supreme Court recognised that there is no longer a social or legal justification for excluding people who are deaf from juries:

The deaf are not poor creatures to be patronized by us, congratulated on their individual efforts to overcome their handicaps and summarily brushed aside … the deaf are a part of our community and must be considered, evaluated, and finally either accepted or rejected for service as individuals just as any other citizen … The grounds for exempting the deaf from jury service have vanished.^[23]

10.16 The Americans with Disabilities Act 1990 (ADA) in the United States prevents jurors from being excluded simply because of their disability. The ADA states that:

no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.^[24]

10.17 The ADA provides that people with disabilities have rights to access everyday things,^[25] including government services, which extends to the courts and jury service.^[26] Courts are public entities for the purposes of the ADA.^[27]

10.18 The ADA mandates the provision of ‘reasonable accommodations’.^[28] What constitutes a ‘reasonable’ accommodation has been subject to frequent litigation.^[29] Ultimately, the trial judge makes a ruling in the context of the specific case. We listed examples of these accommodations in the consultation paper.^[30]

10.19 All courtrooms in the United States must be built in compliance with the ADA, to be accessible, with ramps and room to move. The accommodations commonly available include:

• CART (computer assisted real time transcription)

• qualified American Sign Language interpreters

• court reporters who write up everything that is spoken in real time

• hearing loops

• line-of-sight adjustments.^[31]

10.20 The New York State Court’s website lists additional accommodations, including:

• copies of documents in large print, Braille, screen readable or audio formats

• making reasonable modifications in practices or procedures, including, for example:

– relocating a proceeding to a physically accessible courtroom for a person with a mobility impairment

– filling out a court form for a person with an impaired ability to write by hand

– permitting the use of a service animal by a person who is blind or otherwise relies on a dog trained to do work or perform a task

– reasonable modifications to courtroom practices and procedure made by a judge presiding over a matter.^[32]

10.21 Numerous United States jurisdictions have specifically enacted the right of individuals with disability to serve on juries, explicitly including deaf people. They require the provision of accommodations, including court-appointed and funded sign language interpreters, and have developed policies and guidelines to this effect. Additionally, many state and local courts have entered into formal and informal ‘settlement agreements’ to provide accommodations and supports for people with disabilities, in order to comply with the ADA. Some states also provide staff training on disability.^[33]

10.22 In the United States, the 13th person rule has been held not to extend to a sign language interpreter. In People v Guzman it was held that the rule applies to officers of the court such as bailiffs, judges, or counsel, but ‘the presence of the signer is a different matter entirely’^[34] because ‘the role of the signer is not that of a participant or an authorized official of the court but is that of a communications facilitator’.^[35]

10.23 In United States v Dempsey, the court found it no more likely that an interpreter would reveal confidences than the jurors themselves.^[36] It held that the sign language interpreter was unlikely to have a ‘chilling effect’ on deliberations—‘that is, whether it will inhibit the frankness of the discussion and deprive the eventual verdict of legitimacy’—because they are ‘part of the background’ rather than ‘independent participants’.^[37]

10.24 In the Dempsey case Judge Logan considered that ‘an important social policy argues against automatically foreclosing members of an important segment of our society from jury duty simply because they must take an interpreter into the jury room’. It was concluded that concerns about the interpreter could be addressed through an oath and by the judge asking before the verdict whether the interpreter abided by their oath.^[38]

Unique features of the United States jury selection process

10.25 There are important differences between the jury selection approach in the United States, compared to Victoria.^[39] Jurors may be permitted to speak about the case after a verdict has been reached, subject to any orders by the judge.^[40] Further, in the United States a ‘voir dire’ questioning process applies to the selection of jurors. During a voir dire counsel asks questions of prospective jurors to assess their values and sympathies,

and may challenge the selection of jurors based on the answers they provide and the impressions counsel have.^[41] Questions can be asked about:

marital status, extent of education and area of study, crime victim status, law enforcement affiliation, prior involvement with the law or the courts, occupation, family members and their employment or occupation, and hobbies and interests.^[42]

10.26 Despite differences between the United States and Victorian systems, the United States example is instructive due to the regular and long-term inclusion of people with disabilities on juries. The New South Wales Law Reform Commission has observed that ‘what are sometimes claimed to be insurmountable obstacles here, seem to have caused little impediment to reform [in the United States], and with no evident ill effect’.^[43]

Juries in Monroe County, New York State

We will always err on the side of allowing people to serve. We rarely, if ever, deny an accommodation request.^[44]—Jury Commissioner, New York State Courts in Rochester, Monroe County, United States

10.27 The Commission spoke to the Jury Commissioner for Monroe County, Rochester, New York State. Rochester is home to the National Technical Institute for the Deaf, an institution that trains deaf people for technical careers.^[45] The city has one of the largest deaf populations per capita in the United States.^[46] Napier and colleagues note that ‘As a consequence, the Monroe County Courts have a well-established system to provide ASL interpreters as an accommodation to allow deaf people to serve as jurors’.^[47] Each year, approximately six deaf ASL users are sworn in as jurors.^[48] The Jury Commissioner advised us that the court schedules one deaf juror for jury selection every week but not all progress to jury service.^[49]

10.28 Only a small number of blind people have served in Monroe County. We were told that ‘typically people have other medical conditions and the combination of them usually entitles them to a medical excusal from jury service’.^[50]

10.29 At every stage of the process, from the jury summons through to the jury selection process and the trial itself, accommodations are provided to jurors from the subject groups. The Commission has drawn on this process in making the recommendations for Victoria. Key parts of this process are:

• Potential jurors are randomly selected and sent a qualification questionnaire. Eligible people are then included in the Jury Commissioner database.

• Arrangements are only made to accommodate a juror with a disability once they are summonsed. The Jury Commissioner sends out about 100 jury summonses a week. In response to the summons, a person can contact the Jury Commissioner to advise that they have a hearing or vision loss and require reasonable accommodations.

• The Jury Commissioner can excuse a person on the basis of their response to either the qualification questionnaire or the summons. Once a person is in a courtroom, only the judge can excuse them.

• Once all the potential jurors have been given an orientation outlining their duties and responsibilities, the Jury Commissioner’s computer system randomly assigns them to the trials. The Jury Commissioner told us:

The law gives the Jury Commissioner broad power to organize the jury pool so long as random selection is maintained, while at the same time recognizing that jurors need to be deferred to new dates to accommodate not only disabilities, but also their employment, travel plans and other commitments. It is under this authority that I schedule deaf jurors. The jurors are first randomly selected then are deferred to accommodate their needs.

We do our best to accommodate people who show up at the courthouse without any advance notice but, if it is for jury service, we defer them to a new date.^[51]

• If a request for accommodation is denied, a person can seek a review of that decision.

• If the potential juror is deaf, a sign language interpreter is needed for their induction and the jury selection process as well as for the trial (if they are selected to serve). ‘A team of interpreters is also put on standby in case the deaf juror is empanelled for a full trial’.^[52]

• Sign language interpreters are allowed to be present in the jury room. The interpreter must give an oath or affirmation to enter the jury room. The court’s ASL interpreter is an officer of the court and does not need to be sworn in every time. Other freelance ASL interpreters who regularly interpret in the court are sworn in by a court clerk in front of a judge when they start to interpret in the courtroom.^[53]

• To serve on a jury in New York State people must ‘be able to understand and communicate in English’. This is ‘broadly interpreted to include American Sign Language’.^[54]

• If there is a question about the ability of a prospective juror to serve in a particular trial, even with communication aids, this will be determined by a judge during the voir dire.^[55]

The experience of jurors in the United States

10.30 The National Federation of the Blind’s newsletter, Braille Monitor, contains personal stories from people who are blind about their experiences of the jury process in the United States. We referred to some of these in our consultation paper.^[56]

10.31 Jim Moynihan detailed his experience of serving on a jury in Missouri in 2002.^[57] He noted that when he initially reported to the courthouse in response to his summons he was told by the court clerk that he was excused because he was blind. He informed the clerk that he ‘did not wish to be excused on the grounds of blindness and would serve if selected’. Mr Moynihan was subsequently selected to serve and reported that:

It bothered me that the clerk was willing to excuse me from serving on a jury based on blindness, and it shocked her that I wanted to serve if selected. Yet other citizens are expected to serve on juries unless they come up with a legitimate excuse. We all know that blind people are excused from working because others expect that society will take care of us. […] I was impressed that the people on my jury took their task seriously. They grappled with issues presented by the attorneys and tried to arrive at a fair and equitable solution. We came from all walks of life and had never met before. We were of different races and levels of education. We tried our best to hammer out a reasonable and fair settlement […] I would do it again if called upon. You can turn me down for any of a number of reasons, but don’t let my blindness be one of them.^[58]

10.32 In 2021, Dana Ard, a blind juror from Idaho, explained that she ‘took Braille notes on all of the witness testimony as well as the guidance from the judge on what we had to consider when deciding this case…’. She commented that she was ‘proud to have been able to exercise my civic responsibility as a juror. I am hopeful that my service will demonstrate to judges and attorneys that blind people should not be disqualified from jury service based solely on blindness’.^[59]

10.33 In 2015, Tracy Straub, who was born deaf, served as juror in an armed robbery case in Wayne County Circuit Court, Detroit. She welcomed the chance to be involved:

‘I’ve got a lot of friends that are deaf and have never served jury duty before,’ Straub told the Free Press through an interpreter. ‘So I’m kind of the rock star in that way’.^[60]

10.34 In this trial in Detroit, it was reported that the interpreters took turns interpreting for 15 to 20 minutes each. They stood at the front of the courtroom, near the court reporter. It was noted that during proceedings Ms Straub’s eyes ‘shifted between witnesses on the stand, exhibits displayed on a TV screen and sign language interpreters’. About deliberation Ms Straub said, ‘I did have an interpreter there while we discussed and deliberated … The interpreter basically acts as my voice and my ears’.^[61]

10.35 Laurie Finch, owner of University Translators Services, explained in a media report about the case that the interpreters ‘don’t interject an opinion, they don’t offer advice, they don’t advocate. … They strictly interpret’.^[62]

10.36 Wayne County Circuit Judge Timothy Kenny, who presided over the trial in Detroit, said the court ‘is ready to accommodate any resident summoned for jury duty’, explaining that:

We are very interested in making sure Wayne County residents participate in jury service. […] We are certainly willing to make the appropriate accommodations to ensure that everyone can in fact participate.^[63]

10.37 The Jury Commissioner for Monroe County suggested that it may be more difficult for a blind person to serve as a juror where a juror needs to watch videos and analyse photographic exhibits.

10.38 The Jury Commissioner provided an example of a blind juror who served in a minor criminal trial in which the accused was charged with violating a protection order. The question in issue was whether the order had been breached or not. Importantly, ‘there was no visual evidence that the juror had to evaluate. The judge read out the contents of the protection order to the jury. Court deputies assisted the juror with navigation. The blind juror deliberated with everyone and helped reach a verdict’.^[64]

10.39 In this trial the juror did not have any support in the jury room. The Jury Commissioner spoke with the blind juror after the trial and noted that the juror was:

able to repeat the directions and the order of the judge verbatim. She had an amazing memory and an ability to recall information. … this scenario certainly supported the proposition that people who are blind or who have vision loss have compensated for this through other senses and often have extremely well developed memory and hearing.^[65]

Inclusive juries in England and Wales

Disability should not be a barrier to people carrying out this most important civic duty. I am delighted we can open up jury service to many thousands more people and ensure our justice system becomes as accessible and inclusive as possible.^[66] —Lord Chancellor, Robert Buckland QC MP, March 2021

10.40 People with disabilities, including those who are deaf, hard of hearing, blind or have low vision, are not disqualified from serving under the Juries Act 1974 (UK) (in operation in England and Wales).^[67]

10.41 Where a person with physical disability is summonsed for jury service, a senior court official will consider whether accommodations can be provided to enable them to serve. Where there is doubt about the potential juror’s ‘capacity to act effectively as a juror’ because of disability, the person may be brought before a judge pursuant to section 9B^[68] who will determine ‘whether or not the person should act as a juror’.^[69] The prospective juror can attend the hearing to discuss the adjustments they would need with the judge.^[70] The judge:

shall affirm the summons unless he [sic] is of the opinion that the person will not, on account of his [sic] disability, be capable of acting effectively as a juror, in which case he shall discharge the summons.^[71]

10.42 Until 2022, the 13th person rule prevented all non-jurors from facilitating jury service for jurors with disabilities in the jury room. However, there have been protocols in place in England and Wales for some time to accommodate jurors with disabilities to enable them to serve within the limits of the 13th person rule, for example enabling deaf jurors who can lip-read to serve. In 2022 the law changed to allow a British Sign Language (BSL) interpreter to work alongside a juror in jury deliberations (discussed below).^[72]

10.43 In 2001, Lord Justice Auld noted that changes in the 1990s:

effectively established a presumption that people with disabilities attending court in response to a summons can serve on juries.^[73]

10.44 Lord Justice Auld further noted that enabling people with disabilities to serve as jurors:

is not just a question of evaluating their disability and relating it to the task, but also of providing, where reasonably practicable, the facilities and/or assistance to them to undertake it. This includes fairly predictable needs, such as access for people with mobility difficulties to and, as necessary, throughout the court-building, space for jurors in wheelchairs in or near the jury box, special lavatories and suitable equipment for people with visual impairments.^[74]

10.45 Lord Justice Auld considered that:

all reasonable arrangements, coupled with suitable safeguards, should be provided to enable people with disabilities to sit as jurors with third party assistance. I say this, not because there is a general right, as distinct from duty, to undertake jury service or under any anti-discrimination legislation, but because such inclusiveness is a mark of a modern, civilised, society.^[75]

10.46 The Home Office has commented that, under the Equality Act 2010 (UK), English, Welsh and Scottish ‘public sector organisations must have due regard of the need to eliminate discrimination and to advance equality of opportunity, thereby ensuring that services are accessible to everyone, including by making reasonable adjustments when appropriate to do so’.^[76] This involves, where reasonable, steps such as ‘the removal of any barriers which place a disabled person at a disadvantage when compared to a non-disabled person and the provision of auxiliary services’.^[77]

There are some differences in jury legislation across the United Kingdom.^[78] However the jury empanelment processes are broadly similar with respect to jurors in the subject groups. The process in England and Wales includes:^[79]

• asking people to provide information about what adjustments they might need

• adopting a flexible case-by-case approach to the provision of supports

• providing a range of adjustments, including BSL interpreters, hearing enhancements such as induction hearing loops, speech-to-text services, shorthand writers who transcribe the proceedings in court, allowing the juror to lip-read in the deliberating room, large print documents, Braille material, accommodations for guide dogs including arrangements to allow them to go into the courtroom and the jury room and being allowed exercise breaks, vision aids such as magnifiers, dedicated court ushers and the provision of additional breaks during the court process.

• offering pre-court visits to explore adjustments with the court

• using Braille cards.^[80]

Reforms to limit the 13th person rule in England and Wales

10.47 On 28 April 2022 legislation was enacted to allow BSL interpreters to work with deaf jurors in jury deliberations in England and Wales.^[81] The new legislation has amended the Juries Act 1974 (UK) and ‘will mean over 80,000 deaf people across England and Wales can now participate in jury service’.^[82]

10.48 Section 196 of the amending legislation requires the judge to determine whether the assistance of a BSL interpreter would enable a deaf person ‘to be capable of acting effectively as a juror’.^[83] If so, the judge may appoint one or more interpreters to provide that assistance. The BSL interpreter will then be permitted to ‘remain with the jury in the course of their deliberations’.^[84]

10.49 Other key features of the new laws and procedures are:

• interpreters will be ‘contractually bound to a confidentiality agreement, which will stipulate their obligation to always remain impartial and they will also be required to swear an oath or affirmation to that effect, alongside the existing interpreter’s oath or affirmation’.^[85]

• like jurors, the BSL interpreter’s presence can be ‘challenged for cause’^[86]

• like jurors, the BSL interpreter will need to surrender all electronic communication devices

• existing offences for jurors relating to researching the case and sharing research with other jurors will apply to interpreters^[87]

• the Act introduces a new indictable offence prohibiting ‘interpreters interfering in or influencing jury deliberations’.^[88]

10.50 There was debate about whether to add ‘or language and communication service professional’ in addition to ‘interpreter’ in the new legislation.^[89] Ultimately, the Act is limited to allowing a BSL interpreter into the jury room and does not extend to other support people.

10.51 The experience of all court users and particularly those with disabilities is being further improved by a £1 billion change programme to modernise and upgrade the courts and tribunals system.^[90] Her Majesty’s Courts and Tribunals Service (HMCTS) told us that the Judicial Review and Courts Act 2022 (UK) aims to improve access to the criminal court system including through the digitisation of court procedures.^[91] It was noted that the number of people with disabilities ‘who were recent internet users in 2020 reached almost 11 million, 81% of disabled adults’.^[92] HMCTS said steps would also be taken to address the needs of people with disabilities who could not use online services.^[93]

The experience of jurors in England

10.52 In August 2019, Matthew Johnston, a deaf man with lip-reading skills and the use of court stenographers, established a ‘legal landmark’ when he sat on the jury of three trials during a two-week period in the Crown Court. He was selected by the jury to be the foreperson. The trial proceeded smoothly and was ‘in no way negatively impacted’.^[94] The Guardian reported:

Johnston said: ‘They wanted to see me, how deaf I was, how well I could lip-read, and when they met me there was no problem.’

After being convinced of Johnston’s ability to serve without hindrance, and discussions with a judge, the officials secured financing for a two-person team of stenographers to transcribe everything spoken in court, which Johnston read on a tablet device from the jury benches. …

Anthony Jarvis, who was on the same jury panel at Blackfriars as Johnston, said: ‘The processes in court seemed like they were in no way negatively impacted by having a deaf juror and that the court handled it very well. The trial carried on as if having a deaf juror was standard procedure. It didn’t feel like this was the first time’.

Johnston himself said that apart from a couple of small teething issues—his tablet ran out of battery charge at one point, and he also could not hear the announcements in the jury assembly area calling him to court—his time was entirely fulfilling.

‘It worked. It can be done,’ he said. ‘It means that more people with hearing impairments can go on a jury. You’ve got a bigger pool to select.’^[95]

Inclusive juries in New Zealand

Overall, there is a bespoke approach to the provision of supports. The juror will express their needs and the court will do its best to provide for those needs.^[96]

—Consultees from New Zealand courts

10.53 New Zealand Sign Language (NZSL) is an official language in New Zealand, pursuant to the New Zealand Sign Language Act 2000 (NZ). Interpreters are required to be used in court where it is the preferred language of a party, witness, counsel or member of the court, and any other person with leave of the court.^[97]

10.54 In 2000, an amendment was made to the Juries Act 1981 (NZ) to clarify that people with physical disabilities are eligible to serve on juries. The 13th person rule has not been amended by legislation;^[98] it is a matter for a judge to decide whether a person’s physical disability means that they cannot serve on a particular case, if there has not been any decision by a superior court on the issue.^[99] Consultees from the High Court and District Courts of New Zealand New told the Commission that the courts ‘err on the side of assisting people with disabilities to serve and adopt a practical approach to the provision of supports’. Below we discuss some examples of people from the subject groups serving with supports in New Zealand.

10.55 The New Zealand jury summons asks people to contact the court registry if they need supports to serve.^[100] Possible supports might include:

• a sign language interpreter

• documents in other formats (such as Braille or bigger type) if jurors have a vision problem

• use of an accessible courtroom if jurors have a mobility problem

• being seated near the witness or judge or getting sound reinforcement if jurors have a hearing problem.^[101]

10.56 While the prospective juror with disability can express their needs and ‘the court will do its best to provide for those needs’, the courts also told us that:

For a juror, as opposed to a defendant or a witness (who must attend the trial), there are limits to the supports that it is reasonable for the court to provide.^[102]

10.57 A judge will make the decision about whether a trial is suitable for a juror with disability, either before the trial or on the day of trial. We were advised that ‘Sometimes the decision about whether to include a person who has a vision or hearing loss takes place in what is effectively an in-chambers discussion between the judge, counsel and the potential juror, in a sensitive and practical manner’.^[103]

10.58 The Juries Act 1981 (NZ) states that a judge may cancel the summons of a person if satisfied that, because of disability, the person is not capable of acting effectively as a juror.^[104] This can occur on the judge’s own motion or in response to an application by the Registrar or staff responsible for jury service. The application must be made before the jury is constituted, is heard in private, and conducted at the discretion of the judge.^[105]

The experience of jurors in New Zealand

10.59 We were told by consultees from the High Court and District Court of New Zealand that there have been some examples of jurors from the subject groups serving on juries in the District Court. It was noted that:

Jurors who are blind/have low vision are quite rare; however, jurors who are deaf/have hearing loss have been encountered reasonably regularly in the District Courts.^[106]

10.60 In 2005, Dr David McKee, a deaf studies teacher at Victoria University in Wellington, received a summons to serve as a juror in the Wellington District Court. His service was facilitated by two interpreters and the trial proceeded smoothly. He was elected by his fellow jurors as the foreperson in a tax trial. He commented that it ‘went really smoothly … I felt like I was able to do my duty as a citizen’.^[107]

10.61 We were also told by consultees from the New Zealand courts about a case in which a blind juror served in a District Court matter in 2000:

The blind juror contacted the registry to let them know she had a disability. She had a sight assistance dog, who sat with her in the courtroom. The judge appraised her ability to serve prior to empanelment, and counsel were notified of the blind juror’s presence in the jury prior to commencement of the trial. The nature of trial was that oral evidence was the primary evidence adduced, so there was no impediment for a blind juror to serve. The juror was assigned a court attendant to assist her to navigate the court. At the end of the trial, the jury were asked to discuss whether they perceived there were any issues with having the blind juror serve and no concerns were raised. It was observed that over the course of that trial, the jurors became a very self-sufficient group. They took it upon themselves to lead the blind juror out of the jury box and read out documents to her if necessary. The juror’s dog sat near the jury box and was taken out for relief breaks as often as needed. The juror did not rely on any technological supports or any other supports. The trial did not run overtime at all and proceeded smoothly.^[108]

Inclusive juries in Ireland

10.62 Historically, legislation has prevented people from serving on juries with adjustments in Ireland. In 2008, change to the Juries Act 1976 (Ireland) removed the explicit reference to people who are deaf as ineligible to serve as jurors. The law now excludes a person with an ‘enduring impairment’ if it is not ‘practicable for them to perform the duties of a juror’.^[109]

10.63 In 2010, legal challenges were brought by three people who were deaf and hard of hearing—Ms Clarke, Mr Owens and Mr Dunne—who were excused from jury service because they required interpreters to serve.^[110] The High Court upheld the 13th person rule in Clarke and Owens’ cases.^[111]

10.64 In Dunne’s case, by contrast, the High Court suggested that it was practicable for a deaf juror to serve with an interpreter and technological supports.^[112] Justice Carney considered that the 13th person rule could be addressed by:

an appropriate oath being taken by the signer in which he would submit himself to the same obligations of confidentiality as the rest of the other jurors.^[113]

10.65 Dunne did not serve as a juror, despite Justice Carney’s willingness to provide adjustments, as he was subject to a peremptory challenge and removed from the jury panel.^[114]

10.66 Following the judgement about Mr Dunne’s ability to serve, the Irish Law Reform Commission (LCRC) released a report recommending further research into ‘permissible and practicable supports and accommodation for [jurors with physical disabilities], based on international best practice and experience’.^[115]

The experience of jurors in Ireland

10.67 While legislation still has not been enacted to limit the application of 13th person rule or oblige the courts to provide supports, the Irish Court Service has developed processes to enable deaf jurors to serve, including by providing Irish Sign Language interpreters (see example below).^[116] The Irish Courts Service has a dedicated disability liaison officer and takes a flexible and individualised approach to providing reasonable accommodations for people with disabilities.^[117]

10.68 The first deaf juror was empanelled in Ireland in December 2017 in the Dublin Circuit Criminal Court.^[118] While that case did not go to trial, presiding Judge Sinéad Ní Chúlacháin noted that it was a ‘historic jury’.^[119] In the same week that the first deaf juror was empanelled, the Oireachtas (the National Parliament) enacted legislation recognising Irish Sign Language (ISL) as an official language of Ireland.^[120]

10.69 In September 2020, Patricia Heffernan became the first deaf person to deliberate on an Irish jury. ISL is her first language; English is her second language. She was assisted in the deliberation by three ISL interpreters: two to interpret in the court and jury deliberations, and one to interpret during breaks. Ms Heffernan said there were ‘absolutely no issues around communication’. While there was terminology she was not familiar with, such as ‘reasonable doubt’, she reported that the interpreters were ‘really good about explaining it’.^[121]

10.70 According to a media report, ‘Judge Sinéad Ní Chúlacháin had to occasionally tell the parties not to talk over each other for the sake of the interpreters’. However, this ‘had the effect of making proceedings easier to follow for everybody involved, not just Heffernan’. It was further reported that:

In the beginning the other jurors felt ‘a bit awkward’ as they got used to talking to Heffernan through an interpreter. ‘But it became so natural. After a bit we were cracking jokes and having fun.’

One of her interpreters, O’Connell, said at first she was nervous about the deliberations, despite having 15 years’ experience as an ISL interpreter. ‘After hearing all the specifics of the trial, to be silent during the deliberations was very difficult.’

[Heffernan commented:] ‘The deaf community need to know we’re all well able to do whatever everybody else is doing in society. We’re all equal. The only thing is we have a different language.’^[122]

10.71 Judge Ni Chulachain has compared the exclusion of deaf jurors to the exclusion of women from juries, which did not end until the 1970s. Her Honour commented: ‘I hope that in years to come the idea that a deaf person couldn’t be a juror will be considered as odd as the idea that a woman can’t’.^[123]

Victoria is lagging behind other jurisdictions

10.72 The examples cited in this chapter demonstrate that barriers to jury service for people in the subject groups have been successfully removed in other jurisdictions. The concerns that have been put forward in Australia regarding the 13th person rule, fair trial concerns, practical difficulties and costs (discussed in Chapters 6 and 9) have all been addressed successfully. In the second half of this report (Chapters 11–19), we describe the reform steps that should be taken in Victoria, drawing on the examples of good practice above.

1. Comment by a blind juror in the United States: Gwen Nelson, ‘My Experience as a Juror’, National Federation of the Blind (US) (Web Page, March 1991) <https://nfb.org/sites/www.nfb.org/files/images/nfb/publications/bm/bm91/brlm9103.htm>.

   ↑

2. Experience of deaf woman, Tracy Straub, serving on a Detroit jury in the United States: Elisha Anderson, ‘Deaf Juror Glad to Do Her Duty for Justice’s Sake’, USA Today (online, 10 May 2015) <https://eu.usatoday.com/story/news/nation/2015/05/10/deaf-juror-glad-duty-justices-sake/27068733/>.

   ↑

3. Australian Capital Territory, Parliamentary Debates, Legislative Assembly , 20 March 2018 755 (Shane Rattenbury).

   ↑

4. Australian Capital Territory, Parliamentary Debates, Legislative Assembly , 20 March 2018 758–9 (Gordon Ramsay, Attorney-General); Courts and Other Justice Legislation Amendment Bill 2018 (ACT).

   ↑

5. Juries Act 1967 (ACT) s 16.

   ↑

6. Ibid s 16(3).

   ↑

7. Ibid s 16(4)(a).

   ↑

8. Ibid s 16(4)(c).

   ↑

9. Information provided by ACT Sheriff to Victorian Law Reform Commission, 30 May 2022. We note that no records are kept by the court about the use of hearing loops.

   ↑

10. Information provided by Judicial Registrar, Crime, Federal Court to Victorian Law Reform Commission, 15 December 2021.

    ↑

11. See Federal Court of Australia Act 1976 (Cth) s 23DQ(2)(e) and s 23DR(1)(a), respectively.

    ↑

12. Information provided by Judicial Registrar, Crime, Federal Court to Victorian Law Reform Commission, 24 June 2022.

    ↑

13. Federal Court of Australia, Requests to be Excused from Jury Service (Information Sheet No 3, July 2021).

    ↑

14. Information provided by Judicial Registrar, Crime, Federal Court to Victorian Law Reform Commission, 15 December 2021. The Commission understands that several additional cartel jury trials are listed in Sydney and Melbourne in 2022.

    ↑

15. Ibid.

    ↑

16. Information provided by Judicial Registrar, Crime, Federal Court to Victorian Law Reform Commission, 24 June 2022.

    ↑

17. Information provided by Judicial Registrar, Crime, Federal Court to Victorian Law Reform Commission, 15 December 2021.

    ↑

18. Ibid. The Federal Court referred the Commission to the Government response to the Final Report of the Royal Commission into Misconduct in Banking, Superannuation and Financial Services Industry: see Treasury (Cth), Restoring Trust in Australia’s Financial System—The Government Response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Report, 4 February 2019).

    ↑

19. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Report No 124, August 2014) 234 [7.207]. We set out the relevant legislation in other Australian states and territories in our Consultation Paper: Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) Appendix A. The Western Australian Department of Justice (WADOJ) published a consultation paper in 2020 exploring possible amendments to the Juries Act 1957 (WA) to ensure people with disabilities can participate as jurors: Department of Justice (WA), Participation of People with a Disability in Jury Service (Discussion Paper, March 2020) 3 [5.1]–[5.5]. No information was available publicly at the time of writing about the WADOJ findings or any proposed changes to the law or practice in Western Australia.

    ↑

20. Juries Act 1962 (NT) s 11, sch 7.

    ↑

21. Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 23–24.

    ↑

22. Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) Appendix A.

    ↑

23. People v Guzman, 478 NYS 2d 455, 474 (Goodman J) (1984).

    ↑

24. Americans with Disabilities Act, 42 USC Ch 126 §12132 (1990): see also s 1210, which relates to the overall purpose of title 42 of the ADA. See generally Kristi Bleyer, Kathryn Shane McCarty and Erica Wood, ‘Access to Jury Service for Persons with Disabilities’ (1995) 19(2) Mental and Physical Disability Law Reporter 249, 249.

    ↑

25. Americans with Disabilities Act, 42 USC Ch 126 (1990). The ADA is divided into five different sections called titles. Different titles set out the requirement under the Act for different organisations in the US: Title 1 (employment); Title 2 (state and local government); Title 3 (business and non- profits serving the public); Title 4 (telecommunication companies); Title 5 (other requirements regarding the implementation of the law): see Civil Rights Division, United States Department of Justice, ‘Introduction to the ADA’, Information and Technical Assistance on the Americans with Disabilities Act (Web Page).

    ↑

26. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

27. Galloway v Superior Court of the District of Columbia, 816 F Supp 12 [19] (DDC, 1993). See also the New York courts information page about the application of the ADA to the courts and the right to accommodation: Office of Court Administration, New York State Unified Court System, ‘Reasonable Accommodations for Court Users’, NYCOURTS.GOV (Web Page) <http://ww2.nycourts.gov/Accessibility/CourtUsers_Guidelines.shtml>. The Rehabilitation Act, 29 USC (1973) prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance and in Federal employment. Federal Courts in the United States are covered by this act, which has the same substantive requirements as the ADA: see especially, s 504.

    ↑

28. Nondiscrimination on the Basis of Disability in State and Local Government Service, 28 CFR Part 35 (1 July 2021) [7]. See also Office of Court Administration, New York State Unified Court System, ‘Reasonable Accommodations for Court Users’, NYCOURTS.GOV (Web Page) <http://ww2.nycourts.gov/Accessibility/CourtUsers_Guidelines.shtml>.

    ↑

29. See, eg, People v Guzman, 478 NYS 2d, 458 (1984).

    ↑

30. Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) [4.38]. See also Department of Justice (US), The Americans with Disabilities Act: Title II Technical Assistance Manual (Manual) <https://www.ada.gov/taman2.html>; People v Guzman, 478 NYS 2d (1984).

    ↑

31. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

32. Office of Court Administration, New York State Unified Court System, ‘Reasonable Accommodations for Court Users’, NYCOURTS.GOV (Web Page) <http://ww2.nycourts.gov/Accessibility/CourtUsers_Guidelines.shtml>.

    ↑

33. National Center for State Courts, Enforcement Activities under the Americans with Disabilities Act Title II: Programs, Services and Activities of State and Local Courts 1994–2004 (Report, June 2004).

    ↑

34. People v Guzman, 478 NYS 2d, 472 (Goodman J) (1984).

    ↑

35. Ibid 473 (Goodman J).

    ↑

36. United States v Dempsey, 830 F 2d 1084, 1090 (Logan J) (10th Cir, 1987).

    ↑

37. Ibid 1090 (Logan J).

    ↑

38. Ibid 1090, 1092 (Logan J).

    ↑

39. See, eg New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 36–38.

    ↑

40. United States v Dempsey, 830 F 2d 1084, 1089 (10th Cir, 1987): Circuit Judge Logan notes ‘There is no strict secrecy rule; jurors are not prohibited by law from discussing their deliberations after the case is over’. See also Judicial Conference of the United States, Handbook for Trial Jurors Serving in the United States District Courts (Handbook No HB 100, Administrative Office of the United States Courts, 2006) 14 <https://img.nyed.uscourts.gov/files/local_rules/trialhandbook.pdf>. This is in contrast to jurors in Victoria who are bound by secrecy under the Juries Act 2000 (Vic) s 65.

    ↑

41. Jacqueline Horan and Jane Goodman-Delahunty, ‘Challenging the Peremptory Challenge System in Australia’ (2010) 34(3) Criminal Law Journal 167, 178–80.

    ↑

42. Phylis Skloot Bamberger, ‘Jury Voir Dire in Criminal Cases’ (2006) 78(8) New York State Bar Association Journal 24, 26.

    ↑

43. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 44.

    ↑

44. Requesting a wheelchair is a notable exception to this rule. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

45. ‘National Technical Institute for the Deaf’, Rochester Institute of Technology (Web Page) <https://www.rit.edu/ntid/>.

    ↑

46. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States). See also Jemina Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022) 254: ‘There is estimated to be 90,000 deaf ASL users in a population of 700,000 living in Rochester’.

    ↑

47. Jemina Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022) 254.

    ↑

48. Ibid 254–5.

    ↑

49. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

50. Ibid.

    ↑

51. Ibid.

    ↑

52. Jemina Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022) 254.

    ↑

53. Information provided by Jury Commissioner, Monroe County, New York State, United States to Victorian Law Reform Commission, 17 June 2022.

    ↑

54. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

55. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States); Office of Court Administration, New York State Unified Court System, ‘Jurors—Questions and Answers (FAQ’s)’, NYCOURTS.GOV (Web Page, 8 December 2020) <https://www.nyjuror.gov/juryQandA.shtml#Q12>. See also Office of Court Administration, New York State Unified Court System, ‘ADA Accommodation Request Process’, NYCOURTS.GOV (Web Page) <http://ww2.nycourts.gov/ada-accommodation-request-process-32956#how1>.

    ↑

56. Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) Appendix B, 11–13.

    ↑

57. James Moynihan, ‘Blind Juror’ (2003) 46(7) Braille Monitor <https://nfb.org/resources/publications-and-media/braille-monitor/archive>.

    ↑

58. Ibid.

    ↑

59. Dana Ard, ‘My Jury Experience’ (2021) 64(7) Braille Monitor <https://nfb.org/images/nfb/publications/bm/bm21/bm2107/bm210713.htm>.

    ↑

60. Elisha Anderson, ‘Deaf Juror Glad to Do Her Duty for Justice’s Sake’, USA Today (online, 10 May 2015) <https://eu.usatoday.com/story/news/nation/2015/05/10/deaf-juror-glad-duty-justices-sake/27068733/>.

    ↑

61. Ibid.

    ↑

62. Ibid.

    ↑

63. Ibid.

    ↑

64. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

65. Ibid.

    ↑

66. ‘Law Change Opens Doors for Deaf Jurors in England and Wales’, Hearing Link (Web Page, 17 March 2021) <https://www.hearinglink.org/news/202103/law-change-opens-doors-for-deaf-jurors-in-england-and-wales/>.

    ↑

67. Juries Act 1974 (UK) s 1.

    ↑

68. Ibid s 9B(1).

    ↑

69. Ibid s 2. ‘The judge’ is defined in the relevant section as (a) any judge of the High Court or any Circuit judge or Recorder, or (b) any qualifying judge advocate (within the meaning of the Senior Courts Act 1981 (UK)) if the summons to attend for jury service is in the Crown Court: at s 9B(3), (4) .

    ↑

70. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 17 August 2020. Her Majesty’s Courts and Tribunal Service is responsible for the administration of criminal, civil and family courts and tribunals in England and Wales.

    ↑

71. Juries Act 1974 (UK) s 9B(2).

    ↑

72. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196. This Act only applies to England and Wales.

    ↑

73. Lord Justice Robin Auld, Ministry of Justice (UK), Review of the Criminal Courts of England and Wales (Report, September 2001) ch 5 [42] <https://ials.sas.ac.uk/eagle-i/review-criminal-courts-england-and-wales-right-honourable-lord-justice-auld-september-2001>.

    ↑

74. Ibid ch 5 [43].

    ↑

75. Ibid ch 5 [46].

    ↑

76. Home Office (UK), Profoundly Deaf Jurors: Police, Crime, Sentencing and Courts Act 2022 Factsheet (27 May 2022) <https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-profoundly-deaf-jurors-factsheet#background>.

    ↑

77. Ibid.

    ↑

78. See, eg, Criminal Justice Act 1995 (Scot); Criminal Procedure Act 1995 (Scot); Juries Order 1996 (NI); Juries Act 1974 (UK).

    ↑

79. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 17 August 2020 and
    
    2 September 2021.

    ↑

80. ‘Law Change Opens Doors for Deaf Jurors in England and Wales’, Hearing Link (Web Page, 17 March 2021) <https://www.hearinglink.org/news/202103/law-change-opens-doors-for-deaf-jurors-in-england-and-wales/>.

    ↑

81. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196. This section of the amending legislation will come into force on 28 June 2022, pursuant to s 208(5)(x).

    ↑

82. Ibid s 196; Ministry of Justice (UK), ‘Law Change Opens Door to Deaf Jurors’ (Press Release, 9 March 2021) <https://www.gov.uk/government/news/law-change-opens-door-to-deaf-jurors>.

    ↑

83. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196(2).

    ↑

84. Ibid.

    ↑

85. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 2 September 2021.

    ↑

86. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196(3). Challenges for cause ‘can be made by either the prosecution or defence and may either be a challenge to the whole panel of jurors (challenges to the array) or to an individual juror (challenges to the polls)’: Crown Prosecution Service, Jury Vetting (Guidelines, 10 July 2018). For further discussion of challenges, see Chapter 17.

    ↑

87. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196(3).

    ↑

88. Ibid. When this section comes into force on 28 June 2022, it will insert a new criminal offence – ‘s 20I Offence: interpreters interfering in or influencing jury deliberations’ – into the Juries Act 1974 (UK).

    ↑

89. United Kingdom, Parliamentary Debates, House of Commons, 17 June 2021 (Steve McCabe, Chair), vol 697, col 601.

    ↑

90. Ministry of Justice (UK), ‘Law Change Opens Door to Deaf Jurors’ (Press Release, 9 March 2021) <https://www.gov.uk/government/news/law-change-opens-door-to-deaf-jurors>.

    ↑

91. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 2 September 2021; Judicial Review and Courts Act 2022 (UK).

    ↑

92. ‘Internet Users, UK: 2020’, Office of National Statistics (UK) (Web Page) <https://www.ons.gov.uk/businessindustryandtrade/itandinternetindustry/bulletins/internetusers/2020>.

    ↑

93. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 2 September 2021.

    ↑

94. Howard Swains, ‘Subtitles Help Deaf Juror Past “13th Stranger” Court Rules’, The Guardian (online, 28 August 2019)
    
    <https://www.theguardian.com/law/2019/aug/28/man-sets-legal-landmark-as-first-deaf-juror-in-english-court>.

    ↑

95. Ibid.

    ↑

96. Consultation 15 (Representatives of High Court and District Courts of New Zealand).

    ↑

97. The purpose of the Act is ‘to promote and maintain the use of New Zealand Sign Language’: Sign Language Act 2006 (NZ) ss 3, 7(1). See also Hayley Reffell and Rachel Locker McKee, ‘Motives and Outcomes of New Zealand Sign Language Legislation: A Comparative Study between New Zealand and Finland’ (2009) 10(3) Current Issues in Language Planning 272, 283.

    ↑

98. Consultation 15 (Representatives of High Court and District Courts of New Zealand).

    ↑

99. Consultation 15 (Representatives of High Court and District Courts of New Zealand). Similarly, Scotland has not overcome the 13th person rule via legislation but has improved court services to provide reasonable adjustments including magnifiers and hearing loops, to allow jurors with disabilities to serve: see Scottish Courts and Tribunals Service, ‘Making Jury Service More Accessible for Jurors’, SCTS News (Web Page, 28 November 2019) <https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2019/11/28/making-jury-service-more-accessible-for-jurors>.

    ↑

100. Ibid. The New Zealand Ministry of Justice website notes that ‘If you have a disability, you can still serve on a jury. Contact the court ahead of time to discuss what support you might need to attend’: ‘Payment and Support to Help You Attend Jury Service’, New Zealand Ministry of Justice (Web Page) <https://www.justice.govt.nz/courts/jury-service/payment-and-support/#disability>.

     ↑

101. Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) 31 [4.25], citing Ministry of Justice (NZ), ‘Disability Support’, Jury Service (Web Page, 18 August 2020) <https://www.justice.govt.nz/courts/jury-service/disability-support/>. We note that these examples were included on the Ministry of Justice website when we produced the consultation paper. The link is no longer active.

     ↑

102. Consultation 15 (Representatives of High Court and District Courts of New Zealand).

     ↑

103. Ibid.

     ↑

104. Juries Act 1981 (NZ) s 16AA(1).

     ↑

105. Ibid s 16AA(1), (3), (4).

     ↑

106. Consultation 15 (Representatives of High Court and District Courts of New Zealand).

     ↑

107. Annie Guest, ‘Deaf Jurors Serve in US and New Zealand, but High Court Blocks Australian Gale Lyons’ Bid’, ABC News (online, 5 October 2016) <https://www.abc.net.au/news/2016-10-05/deaf-jurors-allowed-in-us,-nz/7905810>; ‘First Deaf Person to Serve on Jury’, All Deaf (Web Page, 11 March 2005) <https://www.alldeaf.com/threads/first-deaf-person-to-serve-on-jury.21651/>.

     ↑

108. Consultation 15 (Representatives of High Court and District Courts of New Zealand).

     ↑

109. Changes were made to the Juries Act 1976 (Ireland) sch 1, pt 1 by the Courts and Civil Law (Miscellaneous Provisions) Act 2008 (Ireland) s 64(a). See also Law Reform Commission (Ireland), Jury Service (Report No 107, April 2013) [4.03]–[4.05]; ‘Who Can Be Called for Jury Service?’, The Courts Service of Ireland (Web Page) <https://www.courts.ie/who-can-be-called-jury-service>.

     ↑

110. Clarke v County Registrar County Galway [2010] 2006 High Court Judicial Review 1338; The People (DPP) v O’Brien, Central Criminal Court, 29 November 2010; The People (DPP) v JM, Circuit Criminal Court, November 2010.

     ↑

111. See Law Reform Commission (Ireland), Jury Service (Report No 107, April 2013) [4.11]–[4.12].

     ↑

112. Ibid [4.13]–[4.14], citing The People (DPP) v O’Brien, Central Criminal Court, 29 November 2010.

     ↑

113. Law Reform Commission (Ireland), Jury Service (Report No 107, April 2013) [4.13].

     ↑

114. Ibid [4.14] See our discussion of this issue in Chapter 17.

     ↑

115. Ibid [4.44].

     ↑

116. Mary Carolan, ‘Jury Service: Many with Disability “Would like to Do Their Civic Duty”’, The Irish Times (online, 4 February 2019) <https://www.irishtimes.com/news/crime-and-law/jury-service-many-with-disability-would-like-to-do-their-civic-duty-1.3780755>.

     ↑

117. Ibid.

     ↑

118. Mary Carolan, ‘“Historic” Day as First Deaf Juror Serves on Jury’, The Irish Times (online, 18 December 2017) <https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/historic-day-as-first-deaf-juror-serves-on-jury-1.3331199>.

     ↑

119. Ibid.

     ↑

120. Irish Sign Language Act 2017 (Ireland). See also Michael Farrell, ‘Ireland Gets First Ever Deaf Juror—11 Years after First Attempt’, PILA Bulletin (20 December 2017) <https://www.pila.ie/resources/bulletin/2017/12/20/guest-piece-by-michael-farrell-ireland-gets-first-ever-deaf-juror-11-years-after-first-attempt/>.

     ↑

121. Conor Gallagher, ‘Galway Woman Makes History as First Deaf Person to Deliberate on Irish Jury’, The Irish Times (online, 5 October 2020) <https://www.irishtimes.com/news/crime-and-law/galway-woman-makes-history-as-first-deaf-person-to-deliberate-on-irish-jury-1.4370644>.

     ↑

122. Ibid.

     ↑

123. Public Interest Law Alliance, ‘First Deaf Person to Sit on a Jury and Deliberate on Verdict, PILA Bulletin (14 October 2020)
     
     <https://www.pila.ie/resources/bulletin/2020/10/14/first-deaf-person-to-sit-on-a-jury-and-deliberate-on-verdict/>.

     ↑