Between the conviction and sentence of Brian Doolan the Law Reform Commission issued a Report on Jury Service, view report

This report questioned the constitutionality of the Juries Act 1976 on a number of grounds.

One ground was the exclusion of non nationals who comprise of 12 of the population (1 in 8)) and are mostly EU citizens. Another is the absolute right of certain categories of citizens (such as doctors, nurses, dentists, vets, pilots, lawyers, civil and local government servants, third level students and those over the age of 65) to excuse themselves. In this way 1.5 million citizens out of 3 million eligible citizens are excluded. The report concluded that juries under the act of 1976 were no longer representative of the community, as the Supreme Court ruled was a constitutional requirement in Deburca vs. Atttorney General [1976] IR 38.

Brian Doolan appealed his conviction on the ground that his constitutional right to a trial in due course of law was breached, in that the panel from which his jury was drawn was not representative and that the jury should have given reasons for its verdict. The Court of Appeal refused to consider these issues on the ground that the Court of Appeal was not the appropriate court in which to raise such issues.

Brian Doolan then issued High Court proceedings challenging the Juries Act 1976 on Constitutional, European Convention and EU law grounds.

Pending the determination of these High Court proceedings which could take up to 5 years, Brian Doolan applied to the High Court for conditional and temporary bail which was refused. An appeal to the Court of Appeal failed though that court acknowledged that the points relating to the Juries Act 1976 were interesting [2016] IECA 103. Leave to Appeal was sought from the Supreme Court which was refused.

To have the Jury issues determined without undue delay a Habeas Corpus application was made to the High Court. Despite the obligation to hear such applications “forthwith” (Article 40.4.2 of the Constitution) and “speedily” (Article 5.4 of the European Convention on Human Rights) the High Court took 57 days to make a ruling. This delay was never explained.

The High Court dismissed the application on the factually wrong ground that Brian Doolan had misled the Court and on a number of legal grounds. Since Brian Doolan was never brought before the High Court he was deprived of the most basic and fundamental human right of fair procedures in that he never had any opportunity to comment, contradict and controvert the grounds on which the High Court judge ruled.

On appeal the Court of Appeal accepted that there had been no intention to mislead the High Court, though that court avoided the two central issues. The court avoided the “forthwith” and “speedily” requirements by saying simply that “the issue had been determined”. In addition, the Court of Appeal avoided giving a direct decision as to whether fair procedures had been observed by the High Court.

Brian Doolan applied to the Supreme Court for Leave to Appeal. That court issued a determination refusing Leave to Appeal. The Supreme Court was equally evasive on the “forthwith” issue by saying without siting any previous cases, that the word did not cause any legal difficulty and had been applied over a period of nearly 80 years without giving rise to difficulties of interpretation.

These Habeas Corpus proceedings meandered through the Irish courts for a total of 296 days which is unprecedented in the annals of Irish law because of the length of time taken. For example, in the case of A vs Governor of Arbour Hill [2006] IR 88 the applications were made to the High Court on the 26th of May, the Hearing was on the 29th of May and the Judgement was given on the 30th of May (5 days): the Supreme Court heard the appeal on the 2nd of  June: in all a total of 8 days.

The state has now served a Defence. Should these proceedings succeed a serious question mark will hang over the conviction. The question of compensation for the breach of all of Brian Doolan’s human rights will run into millions of euros.