1. Office for Criminal Justice Reform for England and Wales The Use of Bilingual (English and Welsh-Speaking) Juries in Certain Criminal Trials in Wales (London: Office for Criminal Justice Reform, 2005).

2. See the website available at http://news.bbc.co.uk/go/rss/-/1/hi/wales/4823058.stm.

3. The debate is not a new one. More than 30 years ago, Lord Hailsham of St Marylebone, the then Lord Chancellor, made a statement to the House of Lords reporting on the recommendations made by Lord Edmund Davies, who, having considered the issue, had concluded that there should not be any measures implemented to introduce bilingual juries in Wales: Hansard HL Deb, cols 534R–537L, 12 June 1973.

4. These arguments are summarised in Parry, RG Random selection, linguistic rights and the jury trial in Wales 2002 CrimLR 805 Google Scholar.

5. Rt Hon Sir Robin Auld, Lord Justice of Appeal A Review of the Criminal Courts of England and Wales (London: TSO, 2001) (the Auld Report) ch 5, paras 62–72. Auld LJ refers to papers he received from Thomas LJ and Roderick Evans J.

6. Because of the prohibition on jury research, there is no empirical evidence to evaluate the merits of these arguments; see Contempt of Court Act 1981, s 8.

7. Auld Report, above n 5, ch 5, para 69.

8. Ibid, para 70.

9. Ibid, para 66.

10. [1999] 1 IR 200.

11. Auld Report, above n 5, ch 5, para 1.

12. Ibid, para 72.

13. Ibid, para 69.

14. See Green, TA A retrospective on the criminal trial jury 1200–1800’ in Cockburn, JS and Green, TA (eds) Twelve Good Men and True: The Criminal Trial jury in England, 1200–1800 (New Jersey: Princeton University Press, 1988) pp 358–400 Google Scholar at pp 364–365.

15. Devlin, Sir Patrick Trial by Jury (London: Stevens & Sons Ltd, 1956 Google Scholar) p 17.

16. Westminster 2, 13 Edward I (1285), c 38.

17. See, further, Seipp, DJ Jurors, evidences and the Tempest of 1499’ in Cairns, JW and McLeod, G (eds) The Dearest Birth Right of the People of England (Oxford: Hart, 2002 Google Scholar) pp 75–92 at p 79.

18. Green, above n 14, p 377.

19. Ibid, p 384.

20. Blackstone, Sir William Commentaries IV (Oxford: Clarendon Press, 1776 Google Scholar) p 347.

21. The property qualification in Wales was less than that of England; see, further, Ireland, RW Putting oneself on whose country? Carmarthenshire juries in the mid-nineteenth century’ in Watkin, TG (ed) Legal Wales: Its Past; Its Future (Cardiff: Welsh Legal History Society, 2001 Google Scholar) pp 63–88 at p 69.

22. See M Lobban ‘The strange life of the English civil jury, 1837–1914’ in JW Cairns and G McLeod, above n 17, pp 173–209 at pp 200–201.

23. See D Hay ‘The class composition of the Palladium of Liberty: trial jurors in the eighteenth century’ in JS Cockburn and TA Green, above n 14, pp 305–57 at p 311.

24. See, for example, Ramirez, D The mixed jury and the ancient custom of trial by jury de medietate linguae: a history and a proposal for change’ (1994) 74 BULRev 777 Google Scholar.

25. See JR Pole ‘A quest of thoughts: representation and moral agency in the early Anglo-American jury’ in JW Cairns and G McLeod, above n 17, pp 101–130 at p 109–111.

26. See Morgan, KO The twentieth century’ in Morgan, KO (ed) The Oxford History of Britain (Oxford: Oxford University Press, 1993 Google Scholar) pp 582–563 at p 590.

27. See Morgan, KO Consensus and Disunity, The Lloyd George Coalition Government 1918–1922 (Oxford: Oxford University Press, 1979 Google Scholar) pp 152–154.

28. A subject which is considered by Parry, RG Jury service for all? Analysing lawyers as jurors’ (2006) 70(2) Journal of Criminal Law 163 CrossRefGoogle Scholar.

29. [1976] IR 38.

30. Indeed, ensuring that all citizens participate has been a recurring issue; see, for example, Kairys, D, Kadane, J and Lehoczky, J Jury representativeness: a mandate for multiple source lists’ (1997) 65 California Law Review 776 CrossRefGoogle Scholar.

31. There are other provisions dealing with those who are disqualified or entitled to be excused, but none of these refer to any linguistic qualification; see Juries Act 1976, ss 8–9.

32. Immigration and Naturalization Act 1952 (as amended), s 312 (a), which provides that: ‘No person except as otherwise provided in this title shall hereafter be naturalized as a citizen of the United States upon his own application who cannot demonstrate: (1) an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language: Provided, That the requirements of this paragraph relating to ability to read and write shall be met if the applicant can read or write simple words and phrases to the end that a reasonable test of his literacy shall be made and that no extraordinary or unreasonable conditions shall be imposed upon the applicant; and (2) a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States’.

33. The ‘Act of Union’ of 1536 outlawed the use of the Welsh language in the official business of the courts: 27 Henry VIII c 26.

34. See R v Merthyr Tydfil Justices, ex p Jenkins [1967] 2 QB 21.

35. The Legal Status of the Welsh Language Cm 2785, 1965.

36. Welsh Language Act 1993, s 5(2).

37. Ibid, s 22.

38. Government of Wales Act 1998, s 47(1).

39. This literally translates into ‘everyone’s language’.

40. See Welsh Assembly Government Iaith Pawb – A National Action Plan for a Bilingual Wales (Cardiff: Welsh Assembly Government, 2002 Google Scholar) and ).

41. For an excellent account of the development of the legal status of the language during the last century, see Davies, GP The legal status of the Welsh language in the twentieth century’ in Jenkins, G (ed) The Welsh Language in the Twentieth Century (Cardiff: University of Wales Press, 2000 Google Scholar) pp 217–248.

42. British North America Act 1867, s 133. This section sets out the language provision which governs the position of French and English as official languages.

43. In particular, s 16 provides: ‘(1) English and French are the official languages of Canada and have the equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French’.

44. The Official Languages Act 1988 provides at s 16 that: ‘(1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that (a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter; (b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and (c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter’.

45. See Criminal Code of Canada, s 530.

46. For an overview of the Welsh devolution settlement, see Rawlings, R Delineating Wales (Cardiff: University of Wales Press, 2003 Google Scholar). See also TH Jones and JM Williams ‘Wales as a jurisdiction’[2004] PL 78.

47. British Nationality Act 1981, s 6(1) and Sch 1, para 1(c).

48. For a brief account of the history of the Welsh colony in Patagonia, see Davies, J A History of Wales (London: Penguin Publishing, 1994 Google ScholarPubMed) pp 414–416.

49. It is also spoken by a significant proportion of the people of Northern Ireland. Irish does not enjoy official status in Northern Ireland, and there is no domestic legislation for its promotion or protection. There is no right to use the Irish language in court proceedings. However, under the terms of the Belfast Agreement 1998, the UK has recognised its responsibility for promoting the cultural rights of the communities within the province, including the official recognition of Irish and Ulster Scots. The UK has also ratified the European Charter for Regional or Minority Languages in respect of both languages in Northern Ireland. There are currently a number of organisations campaigning for Irish language legislation for Northern Ireland; see, for example, the website available at http://www.pobal.org.

50. Bunreacht na hEireann (Constitution of Ireland) 1937, Art 8.

51. See Brown, T reland, A Social and Cultural History 1922–1985 (London: Fontana, 1985 Google Scholar) pp 45–78 and p 279.

52. See E de Valera Language and the Irish Nation (speech broadcast on Radio Eireann, 17 March 1943).

53. See Hennessey, T A History of Northern Ireland 1920–1996 (Basingstoke: Macmillan, 1997 CrossRefGoogle Scholar) p 74.

54. Subject to a few provisos and qualifications. For a useful summary of the constitutional position of the Irish language, see Casey, J Constitutional Law in Ireland (Dublin: Roundhall, 2000 Google Scholar) pp 73–77.

55. See Kennedy, L Colonialism, Religion and Nationalism in Ireland (Belfast: Institute of Irish Studies, 1996 Google Scholar) pp 204–208.

56. The distinction between the rhetoric and the reality is succinctly described by Shuibhne, Niamh Nic in ‘First among equals? Irish language and the law’ (1999) 93(2) Law Society Gazette (Ireland) 16 Google Scholar at 18–19.

57. See O’Beolain v Fahy and Others [2001] 2 IR 279.

58. The duty to provide Irish versions of legislation has been considered by Smith, John in ‘Legislation in Irish – a lot done, more to do’ (2004) 9(3) Bar Review 91 Google Scholar.

59. For further comments on this issue, see PB Ó Laighin Towards the Recognition of Irish as an Official Working Language of the European Union, Brief Presented to the National Forum on Europe, Dublin Castle, 8 January 2004, available at http://www.cnag.ie/nuacht/polb.htm. The position has now changed and Irish is an official EU language from 1 January 2007.

60. The Act came into force on 14 July 2003.

61. [1999] 1 IR 200.

62. [1976] IR 38.

63. [1999] 1 IR 200 at 206 per Hamilton CJ.

64. For commentary, see G Carey ‘Criminal trials and language rights’ (2003) 13(1) Irish Criminal Law Journal 15 and (2003) 13(3) Irish Criminal Law Journal 5.

65. New Brunswick at the Dawn of a New Century – Discussion Paper on Demographic Issues affecting New Brunswick, available at http://www.gov.nb.ca/legis/comite/demog/index.htmUK. See also Godin, P The New Brunswick experience: the practice of the English common law in the French language’ (2001) 1 Wales Law Journal 41 Google Scholar.

66. With the notable exception of Quebec, where French is the language of the majority, and, therefore, the compromise to the random selection principle benefits the English-speaking minority. Quebec is in fact the only Canadian province where French is the only official provincial language, and although certain aspects of the legal system in Quebec are governed by the Civil Code of Quebec, the criminal law and its administration is under the exclusive jurisdiction of the Federal Government of Canada. For further insights on the position in Quebec, see Jones, R Politics and the reinforcement of the French language in Canada and Quebec’ in Silver, AI (ed) An Introduction to Canadian History (Toronto: Canadian Scholars Press, 1991 Google Scholar) pp 330–350.

67. For further observations on the workings of the criminal jury trial in Canada, see Vidmar, N The Canadian criminal jury: searching for a middle ground’ (1999) 62(2) Law and Contemporary Problems 141 CrossRefGoogle Scholar.

68. It has been held that the defendant should not be expected to bear the cost of the interpreter’s services, as it would form an automatic part of his right to a fair trial. The obligation of the court is not limited to the appointment of an interpreter, and may even extend to overseeing the adequacy of the interpretation so that the right guaranteed by Art 6(3)(e) can be practical and effective; see Luedicke, Belkacem and Koc v Germany (1979–80) 2 EHRR 149; also Kamasinski v Austria (1991) 13 EHRR 36.

69. (1984) 6 EHRR CD 371. The applicant was a French citizen who appeared before a military tribunal in Rennes charged with military insubordination. He insisted on answering all the charges put to him in the Breton language, and requested an interpreter be provided. The request was refused because, inter alia, he was a fluent French speaker. He was eventually convicted and sentenced to 2 years’ imprisonment. When the matter came before the European Commission of Human Rights, one of the issues was whether the refusal of allowing the applicant to present his case in Breton was a breach of Arts 6(3)(e) and 14 (that is, the right not to be discriminated against on the basis of language) of the ECHR. The Commission held the complaint to be inadmissible as the relevant Articles of the ECHR only apply where the individual concerned cannot understand or speak the language used in court.

70. Ibid, at 373.

71. See Parliamentary Debates – House of Commons Official Report of Proceedings in Standing Committee D Tuesday 29 June 1993 (afternoon), Pt II, p 176.

72. In the case of the Welsh language, this would require an amendment to s 10 of the Juries Act 1974. In Ireland, it would require the creation of a new ‘language’ section in the Juries Act 1976.

73. See Furet, Francois Revolutionary France 1770-1830 (Oxford: Blackwell, 1992 Google Scholar) pp 72 and 77.

74. See Shuibhne, NIC EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights (London: Kluwer Law International, 2002 Google Scholar) pp 52–53.

75. See the website available at http://europa.eu/debateeurope/pdf/figel_062006_en.pdf.

76. Ibid.

77. See the website available at http://euobserver.com/9/22769/.

78. See Nic Shuibhne, above n 74, pp 247–256.

79. Re Criminal Proceedings against Horst Otto Bickel and Ulrich Franz Case C-274/96 [1999] 1 CMLR 348.

80. See Poulter, SM The rights of ethnic, religious and linguistic minorities’ (1997) 3 EHRLR 254 Google Scholar.

81. Kymlicka, W Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995 Google Scholar) pp 2–5.

82. Ibid, pp 174–176.

83. Taylor, C The politics of recognition’ in Taylor, C et al (eds) Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1994 Google Scholar) pp 25–73 at p 38.

84. Kymlicka, above n 81, p 189.

85. Ibid, pp 191–192.

86. Ibid, p 6.

87. Ibid, pp 108–116.

88. See Castellino, J Affirmative action for the protection of linguistic rights: an analysis of international human rights; legal standards in the context of the protection of the Irish language’ (2003) 25(1) Dublin University Law Journal 1 Google Scholar.

89. Kymlicka, above n 81, p 126.

90. See International Covenant on Civil and Political Rights, Art 27. The actual scope of this right is, however, somewhat uncertain.

91. The Charter of Fundamental Rights can be found at http://europa.eu.int/comm/justice_home/unit/charte/en/charter-equality.html.

92. For an overview, see Wheatley, S The Council of Europe’s Framework Convention on National Minorities’ (1996) 5 Web JCL I Google Scholar

93. European Charter for Regional or Minority Languages, Strasbourg 5 November 1992, ratified by the UK on 27 March 2001.

94. Ibid, Preamble.

95. Ibid.

96. Ibid, Art 1: ‘The term regional or minority languages means languages that are, i. traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population, and, ii. different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants’.

97. Ibid, Preamble.

98. See Dunbar, R Implications of the European Charter for Regional or Minority Languages for British linguistic minorities’ (2000) 25 ELRev Human Rights Survey 46 Google Scholar at 50; also ) pp 147–166.

99. For more details see the website available at http://www.warwick.ac.uk/~errac/keyinf.htm.

100. See British Council data at http://www.britcounc.org/multilingualuk.

101. For these and other population statistics, see the website available at http://www.statistics.gov.uk.

102. Woehrling, J-M The European Charter for Regional or Minority Languages: A Critical Commentary (Strasbourg: Council of Europe Publishing, 2005 Google Scholar) pp 19–23.

103. Ibid, p 33 and pp 36–37.

104. Ibid, p 31.

105. European Charter for Regional or Minority Languages, above n 93, Pt I, Art 2, para 2.

106. Woehrling, above n 102, pp 137–139.

107. European Charter for Regional or Minority Languages, above n 93, Art 15.

108. Ibid, Pt III, Art 9. The Article contains a provision which limits it to ‘…those judicial districts in which the population number who use the minority language justifies it, and according to the situation of the language concerne….’.

109. Welsh Language Act 1993, s 22.

110. European Charter for Regional or Minority Languages, above n 93, Art 9, para 1(a)(i).

111. This is but one interpretation of the purpose and aim of this particular obligation within the Charter. It may equally be argued that the authors of this paragraph recognised that there may be a need for interpreters for those participants who are not fluent in the minority language; see Woehrling, above n 102, pp 169–170.

112. ‘Just as all must have equal civil rights, and equal voting rights, regardless of race or culture, so all should enjoy the presumption that their traditional culture has value’: Taylor, above n 83, p 68.

113. Nic Shuibhne, above n 74, p 55.

114. Auld Report, above n 5, ch 5, paras 69–71.

115. Kymlicka, above n 81, p 107.

116. See, for example, Darbyshire, P. The lamp that shows that freedom lives – is it worth the candle?[ (1991 Crim LR 740 Google Scholar at 745.

117. ECHR, Art 6(1).

118. See KS Klein and TD Klastorin ‘Do diverse juries aid or impede justice’ [1999] Wisconsin Law Review 553; CA Williams ‘Jury source representativeness and the use of voter registration lists’ [1990] New York University Law Review 590.

119. See, further, H Fukurai et al ‘Cross-sectional jury representation or systematic jury representation? Simple random and cluster sampling strategies in jury selection’ (1991) 19 Journal of Criminal Justice 31; King, NJ and Munsterman, GT Stratified juror selection: cross-section by design’ (1996) 79 Judicature 273 Google Scholar; H Fukurai ‘The representative jury requirement: jury representativeness and cross-sectional participation from the beginning to the end of the jury selection process’ (1999) 23(1) International Journal of Comparative and Applied Criminal Justice 55 at 59.

120. See P Seago, C Walker and D Wall ‘The development of the professional magistracy in England and Wales’ [2000] CrimLR 631 at 646: ‘…the lay magistracy remain unduly white, aged, politically conservative, retired from work and middle-class, though a more representative mix is now achieved in terms of gender and ethnic background’. Since then, the National Strategy for the Recruitment of Lay Magistrates has sought to encourage and facilitate the further diversification of the magistracy; see the website available at http://www.dca.gov.uk/magist/recruit/magrecruit.htm.

121. [2004] 1 All ER 187.

122. See the website available at http://www.nationalstatistics.gov.uk. According to Census 2001: Main Statistics about Welsh (Cardiff: Welsh Language Board, 2003), some 224,955, or 41% of children aged 3–19 years in Wales were able to speak Welsh. Two-fifths (39%) of children aged 10–15 were able to speak, read and write Welsh compared with 25% of 16–19 year olds. Welsh is therefore, arguably, the language of the young. The demographic survey contained in the consultation paper and other surveys have shown that the Welsh-speaking population, on the whole, represent a fair cross-section of the whole community in all the key aspects.

123. See Census of Population Volume 11 – Irish Language (Dublin: Central Statistics Office Ireland, 2002), available at http://www.cso.ie/newsevents/pr_preclen_02vol11.htm.

124. See S Markey ‘Rural Irish speakers fight influx of English’ National Geographic News 17 March 2003.

125. The Irish language has enjoyed various initiatives designed to revive it as a community language outside the Gaeltacht. Most notable has been the gaelscoilenna initiative, which has led to the establishing of Irish-medium schools, at both primary and secondary level, throughout Ireland. For further information see the website available at http://www.iol.ie/gaelscoilenna.

126. The Criminal Justice Act 2003 created the Jury Central Summoning Bureau, which is now responsible for managing the jury service regime in England and Wales.

127. In order to determine whether the individual speaks the language, if that is Welsh, the question could be framed in largely the same terms as is the case when determining competency in English – do you have sufficient understanding of Welsh to act effectively as a juror to serve on a trial? An accompanying booklet might be prepared explaining what a juror does and the level of competency required to avoid unnecessary misunderstanding. It is irrelevant whether the individual is a native speaker, or has learnt the language as a child or in adulthood. The key issue is linguistic skill.

128. See Criminal Code of Canada, s 531.

129. These practical mechanisms are outlined in Annex B of the consultation paper.