The Gazette 1995

GAZETTE

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v 1 E W P O I N Tj I Fundamental Review of the Court System 1

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. j 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.

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