Citizens who serve on a jury, while they must accept the judge's rulings on the law, are the sole judges as to guilt or innocence, writes Tom Cooney
The court of criminal appeal has quashed Padraig Nally's conviction for the manslaughter of John Ward, a Traveller, at his farm in Co Mayo in 2004. Some may find that the decision taxes their credulity. To understand the decision, we must understand the role of the jury in a criminal trial.
But first the case. In July 2005, a jury found Mr Nally guilty of manslaughter, not murder. Mr Nally had shot Mr Ward twice and beaten him with a stick. He fired the second and fatal shot when Mr Ward had left his farmyard, and was limping down the road. Mr Nally testified that he did not intend to kill Mr Ward. He said that he had become increasingly fearful because of burglaries on his farm, and in the area.
The prosecution urged the trial judge not to allow the jury scope to acquit Mr Nally on the grounds of self-defence. They claimed that Mr Nally had shot Mr Ward when he was no longer a threat. And that Mr Nally had told the gardaí that he intended to kill Mr Ward.
They argued for this approach on the ground that a ruling otherwise would admit some form of pre-emptive killing into the law of self-defence.
So the trial judge instructed the jury that they could not simply acquit Mr Nally on the basis that there was no crime because on the evidence that would be perverse. His instructions allowed them scope to reduce the charge from murder to manslaughter.
Mr Nally succeeded in his appeal against his conviction to the Court of Criminal Appeal. The court found that the trial judge was not free to tailor his instructions to the jury according to the prosecution's submission. Those instructions wrongly denied the jury the right to decide guilt or innocence, depriving them of the opportunity to return a verdict of not guilty in the trial.
The court said that the judge in the case was free to express his opinion that the amount of force used by Mr Nally could not in his view be objectively justified under the law of self-defence. But the judge should have left the ultimate decision on that issue to the jury.
The decision is sound. An accused person has a right to be presumed innocent, and to insist that the prosecution prove his or her guilt beyond a reasonable doubt. Therefore, the prosecution bears the burden of proving all elements of the offence charged and must persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements.
The jury's constitutional responsibility is not just to find the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.
The trial judge must direct the jury on the law, and advise them on the facts to the extent he or she thinks it necessary. But jurors, while they must accept the judge's rulings on the law, are the sole judges on the facts. They - and not the judge - convict or acquit.
Some question the wisdom of allowing ordinary citizens to determine the facts - and guilt or innocence - in criminal trials. They claim that lay people are incapable of understanding evidence or determining issues of fact adequately. And that their verdicts are little better than a roll of the dice.
But studies show that jurors do understand the evidence and come to sound conclusions in most of the cases presented to them. When juries differ from the judge on the outcome, it is usually because they are serving some of the very purposes for which the jury was created.
The role of the jury allows them to check arbitrary law enforcement by nullifying a prosecution that they believe, in conscience, is outrageous, or to condemn a vicious criminal acts.
In the Nally appeal, the court pointed out that the jury would have been entitled to give a verdict that flew in the face of the evidence.
The question whether the amount of force used by Mr Nally was objectively reasonable was quintessentially a matter of fact for the jury. In O'Shea , Judge Henchy said that "what may seem to judges to be a perverse verdict of acquittal may represent the layman's rejection of a particular law as being unacceptable". The great jurist pointed out that such verdicts may provoke legislators into enacting needed law reform.
The jury gives ordinary people a chance to take part in the administration of justice. It educates them. It reassures them that their participation in the trial process can prevent its arbitrary use or abuse.
From the standpoint of the accused person, the jury protects him or her against arbitrary prosecutors or biased or compliant or eccentric judges. It gives him or her the common-sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the perhaps calloused response of a judge.
The court of criminal appeal has quashed a decision that was at war with the constitutional role of the jury in criminal trials. It reaffirms the democratic element of our criminal justice system.
But now Mr Nally must face his retrial.
• Tom Cooney teaches law at UCD school of law