The Gazette 1995

GAZETTE

- "

1 E W P O I N Tj

Fundamental Review of the

Court System

NEWS

JANUARY/FEBRUARY 1995

The Law Society welcomes the inclusion in the new Government's Programme for Renewal of a statement of

intention to carry out a fundamental review of the court system from District Court to Supreme Court level

including "a modernisation of the criminal practice code to take account of new methods of information

gathering, judicial skills, and use of video and audio equipment".

It is to be hoped that this review by the

new Minister for Justice,

Nora Owen,

will proceed apace and that she will

consult widely with all interests

professionally concerned with the

administration of justice. It is also to be

hoped that at the expeditious conclusion

of this review, the Minister will

successfully secure the agreement of her

Government colleagues for resources to

be made available to implement the

necessary reforms.

The recent announcement by Minister

Owen (following a meeting with repre-

sentatives of the Society) that she is

"committed to establishing a

commission on the management of the

courts as an independent and permanent

body, with financial and management

autonomy" is also welcome. The day is

long past where the courts service

should be required to compete on a

necessarily unequal basis with security-

related services for her Department's

share of the annual budget. The burden

of the administrative management of the

courts should be lifted from our court

Presidents so that they and their fellow

judges are made more free to perform

their constitutionally independent

judicial functions.

The Minister has also said that she is

reviewing the provisions of the Courts

and Court Officers Bill, 1994 "to ensure

that the measures will adequately tackle

the backlog of cases to be heard in all

courts." If the removal of that "backlog"

is substantively addressed by her, the

Minister will deserve the thanks of not

only the judiciary and both branches of

the legal profession but also the ever

increasing number of litigants seriously

effected by the present delays in their

cases being listed for hearing.

It is clear that the Minister does not

intend to withdraw the Courts and Court

Officers Bill but rather to amend it as

appropriate at Committee stage. The

Society, therefore, hopes that this will

ensure that the Minister's review of the

courts service will remain at the top of

her legislative agenda.

We have already commented

(Viewpoint, Gazette, November 1994)

on aspects of the Bill, including the

provision extending the eligibility of

solicitors for judicial office to appoint-

ments to the Circuit Court bench, but

regrettably, still leaving solicitors

ineligible for appointments to the High

Court and Supreme Court. Solicitors as

well as barristers of appropriate experi-

ence should be eligible for appointment

as judges of all courts. There is simply

no logical argument to the contrary and

the Society will be pressing for the

appropriate amendments to be made to

the Bill to bring about equality of

eligibility for all judicial appointments

between barristers and solicitors. In the

same context, the Bill should be

amended to ensure that judges of the

District Court, Circuit Court and High

Court of (say) three years judicial

experience be eligible for appointment,

respectively, to the Circuit Court, the

High Court and the Supreme Court.

Judicial experience, competence and

temperament at each level of court

should be recognised as valuable quali-

fications for judicial service at the next

level upwards.

The Society recognises that it is desir-

able that the ongoing knowledge and

experience of judges both of law and

societal change should be kept up to date

by appropriate continuing education

programmes. However, the provision in

the Bill that would-be candidates for

judicial office should be required to

attend specified training courses prior to

being considered for appointment is

manifestly counter-productive. Such a

requirement would have the inevitable

effect of excluding the best candidates

from consideration as none but the

mediocre would wish to be seen

attending such courses in the off-chance

that such public manifestation of

ambition might be rewarded by a

judicial appointment.

When judges are actually appointed

there should be induction courses to

familiarise themselves with the relevant

areas of law and procedure they are

going to have to apply. Instant

translation from the desk to the bench is

not an ideal arrangement. The ongoing

continuing education and training of

judges should be organised, as they are

in our neighbouring jurisdictions, by a

statutory Judicial Studies Board under

j the overall control of the judiciary.

It is not at all clear where any demand

for a retirement age of 65 for all judges

J comes from. There has been no

appreciable criticism of our Superior

Court judges (with a present retirement

age of 72) being too old. Many of the

| seminal judgments of our Supreme

I Court and High Court were delivered by

| judges who were over 65. Some of our

: most notable judges would probably not

have been appointed at all because they

were in their early 60s when they first

went to the bench. It has always been

perceived that the existence of judicial

pensions has attracted practitioners to

apply for judicial positions. If the

retirement age for all judges were to

come down to 65 this would likely

discourage lawyers over 50 from

seeking appointment because they would

not be able to build up sufficient years of

service to obtain a reasonable pension.

Hopefully, the welcome appointment of

Mr. Justice Costello to the Presidency of

the High Court at the age of 68 suggests

that the Government does feel that those

over 65 are capable of taking on onerous

responsibilities. This age 65 retirement

provision should be withdrawn from

the Bill.