The Gazette 1995

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. 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 The Minister's announcement indicates that the new Bill will

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 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 appeals without geographical constraints; and, making more

185