The Gazette 1986

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) 69