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INCORPORATED LAW SOCIETY OF IRELAND
GAZETTE
Vol. No. 80 No. 3
APRIL 1986
The Appointment of Judges
R
ecent media attention to our Courts, though
spasmodic and unrepresentative in its coverage, has
concentrated again on the question of the "political"
appointment of judges. As so often happens nowadays
the media seem unable to identify the true cause of some
perceived malaise. It is curious that attacks on the
"political" basis of appointments to the judiciary are not
based on allegations that members of the judiciary show
or exercise any political bias in the exercise of their
functions. This might have been thought to be the most
serious defect to exist in a system of political
appointments but does not seem to have any basis in fact;
there are many examples of judges whom prior to their
appointment were closely linked with the Government
party of the day but whose performance on the Bench
has been exemplary. If there are judges whose perfor-
mance falls below an acceptable level it is not because they
are political appointees but because they are unsuitable
appointees.
The gravest criticism of our system of appointing
members of the judiciary is that there does not appear to
be any proper system at all. While the procedure is
cloaked in mystery it does appear that persons seeking
appointment to the District Court Bench, at least, are
expected to submit their names to the Department of
Justice which in due course will receive consideration
when vacancies occur. Appointments to the Circuit and
High Court Bench appear to be more disorganised,
appointees being chosen only when a vacancy actually
arises (although it is reasonable to assume that a list exists
somewhere of potentially suitable persons).
What is quite clear is that there is no system for giving
prospective judges at any level any introductory training;
they are converted from practitioners one day to judges
the next, a conversion which would be hard to defend
as the best method of producing good judges. The only
other obvious category of people who are appointed to
high office without any training is that of Government
Ministers.
The State is fortunate in that the great majority of the
judiciary at all levels perform their duties in a
conscientious, independent and satisfactory manner. In
particular judges in the District Court operate under most
u n s a t i s f a c t o ry c i r c ums t a n c es l a ck i ng s u f f i c i e nt
administrative back up and operating in premises which
are often totally unadequate and unsuitable. If there are
judges who from time to time fall below the high standard
which is required of them this may be largely due to their
temperament being unsuitable for judicial office. The best
lawyers do not always make the best judges. Some are
too clever, too quick to intervene, too quick to j ump to
conclusions.
The present method of appointing judges does not lend
itself to any proper probationary period. Appointment
to the High Court and Supreme Court is on a permanent
basis; there are no temporary appointments. While
appointment to the Circuit and District Court Benches
are often first made on a temporary basis, normally for
a period of a year at a time the positions are whole time
and require the appointee to abandon his professional
practice completely during the period of his appointment.
This presents both barrister and solicitor appointees with
very little choice at the end of their year but to seek
reappointment and conversely put on those who have the
duty to decide whether a temporary candidate should be
reappointed or made permanent the additional pressure of
realising that if they do not confirm the appointment they
are putting the rejected candidate under severe financial
constraints. The last temporary appointment not made
permanent occurred in the 1960's.
We could do well to borrow from English practice in
the selection and training of judges. Many High Court
judges have previously served as part time deputy judges.
Appointments as Circuit Court judges are normally made
from Recorders who in turn have commenced service as
part time Assistant Recorders. Stipendiary Magistrates
(the equivalent in London and certain other large cities
of our District Justices) must have had previous part time
experience before they are eligible for full time
appointment. The appointments are on a part time basis,
do not require the practitioner to abandon his practice
but enable him to continue to maintain the greater part
of it. Thus at the end of the trial period neither the
prospective appointee nor the monitors are under any
great pressure to continue the appointment if there are
any doubts.
Equally significant is the obligation imposed on
candidates for Recordership to attend training
programmes under the auspices of the Judicial Studies
Board. These programmes include seminars on trial
(continued on p. 71)
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