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GAZETTE
JULY 1995
V I
E W P 0 I N T
Fundamental Reform of Courts and
Judi c ial System?
The
Courts and Court Officers' Bill -
second time around - is soon to be
reintroduced. Seven months into her
term of office, the Minister for
Justice,
Nora Owen,
has announced
( 20 June) that she has obtained
Government approval to prepare a Bill
that "will contain measures to achieve
the most fundamental reform yet
undertaken of the courts and judicial
system". Therefore, the Minister can
soon be judged on whether or not she
can deliver, first legislatively and then
financially, on the commitment in the
Programme for Government
of
December 1994 to review the
provisions of the 1994 Bill (published
in October 1994) to ensure that
measures would adequately address
the need to tackle the backlog of cases
to be heard in all courts. A more
detailed consideration of the
Minister's proposals must, of
necessity, await the publication of the
actual text of the new Bill, but the
general thrust does generate some
optimism that the Government intends
to seriously address the existing
delays and inefficiencies.
The Minister's announcement
indicates that the new Bill will
provide for the appointment of
three
additional Supreme Court judges and
enable that court to sit in divisions of
five
and
three
judges at the same time.
This proposal will replace the
proposal in the old Bill to establish an
intermediate court of appeal of limited
jurisdiction. The Minister's indicated
intention is that when the current
arrears of pending Supreme Court
appeals have been cleared it is
proposed to abolish the Court of
Criminal Appeal and to transfer its
jurisdiction to the Supreme Court,
which would then become the sole
appeal court for all decisions, both
civil and criminal, of the High Court
and the Central Criminal Court.
This proposal to numerically expand
the Supreme Court and to consolidate
the final appeal process seems a
sensible one. However, it does remain
to be seen in the medium term
whether a total of eight appeal judges
will be sufficient to achieve the
intended objective of reducing delays
at that end of the courts system. Also,
in relation to criminal appeals, the
valuable 'mix' of experience at
present generally achieved in the
Court of Criminal Appeal should not
be lost as a result of the absorption of
that court into the expanded Supreme
Court.
The legal profession must applaud the
proposal to increase the complement
of judges in the other courts - the
High Court by two, the Circuit Court
by seven and the District Court by
five. Again, it must be queried
whether those increases in numbers in
the Circuit and District Courts will be
sufficient if the jurisdiction of each of
these courts is subsequently extended,
unless also accompanied by the
appropriate increase in back-up staff
and facilities.
It is right that the Judicial
Appointments Advisory Board as
originally proposed, to advise the
Government on appointments to
judicial office, is to be expanded to
include three (no doubt, pre-eminent)
lay members nominated by the
Minister for Justice and approved by
the Government, in addition to senior
members of the judiciary and
representatives of the Law Society
and the Bar Council.
The original Bill provided for a Courts
Commission with undefined functions.
This proposal is now being substituted
by a "Working Group to report by 31
December 1995 consisting of
representatives of the judiciary and of
Government Departments to formulate
proposals for the establishment of a
Courts Commission". This Working
Group will be sadly lacking in
'practitioner cred' unless it also
contains solicitor and barrister
representatives. Only time will tell
whether or not this Working Group
proposal is a formula for 'shelving'
the clearly worthwhile Courts
Commission concept.
According to the Minister, the new
Bill is to contain a more extended list
of proposals "to increase efficiency in
the interests of users of the courts
service" - such as extending the
powers of the Master of the High
Court and the Taxing Masters of the
High Court (including the power to
order the payment of interest on
awards); widening the powers of the
Superior and Circuit Court
Committees to make rules requiring
the parties in personal injury actions
to disclose in advance reports of
expert witnesses; making more
flexible the jurisdiction of the High
Court and the Circuit Court to hear
appeals without geographical
constraints; and, making more
geographically flexible the criminal
jurisdiction of the District Court. The
new Bill will also restrict the right of
a person charged with an indictable
offence outside Dublin to opt for trial
in the Dublin Circuit Criminal Court.
The increase in the exercise of that
existing right has in recent times
given rise to a large backlog of
pending trials in Dublin.
The prohibition on the wearing of
wigs in court by barristers will survive
into the new Bill. On that momentous
day when this prohibition comes into
effect, will we witness a flotilla of
redundant forensic headgear floating
down the Liffey from the Four
Courts? Will the new Bill be silent on
the use of judicial wigs in the three
highest courts? And will solicitor
judges sitting in the Circuit Court be
wigged or unwigged?
The new Bill will also provide funds
for judicial training courses arranged
by the judiciary themselves "to enable
judges to keep up-to-date with
developments in a range of legal and
other areas". This proposal makes
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