‘Blueprint’ for court reform could go to Government this year, Chief Justice says

‘No magic bullets’ but more resources required, NUI Galway seminar told

Chief Justice Frank Clark at NUI Galway. Photograph: Aengus McMahon/NUIG

Chief Justice Frank Clark at NUI Galway. Photograph: Aengus McMahon/NUIG

 

The “art of judging” could be improved by dividing the country into regions to allow judges in lower courts to specialise, Chief Justice Frank Clarke has proposed.

Addressing a seminar at NUI Galway on Wednesday, Mr Justice Clarke also said he hoped proposals for reform of the courts could be presented to Government before the next budgetary round later this year.

However, reform of the court system cannot be “distanced” from additional resources, he emphasised.

“An improved system requires better ways of using existing resources, but also more resources,” he said.

Judges in district courts could specialise in particular areas, similar to the system in the High Court, by assigning particular judges to particular regions, he suggested.

The chief justice identified a modern judicial training programme, an increase in the number of judges, greater “back up” for the judiciary, and delivery of improved information as among potential improvements.

Conduct of trials without a complete record should “become a thing of the past,” he noted.

Stating that he did not believe there were any “magic bullets,” nor was he suggesting “significant” reform was necessary, Mr Justice Clarke said he proposed instigating a debate among all interested parties to produce a “high level blueprint”.

In a wide-ranging address,he identified several factors, such as the “rather curious” system where the appointment of a judge to the district or circuit court is both permanent and made by the government, rather than by the president of the relevant courts.

He noted that he had already signalled to the Law Reform Commission that the system of appeals was “unnecessarily complex” and would merit “significant streamlining”.

Records

He said the public “might be very surprised” to learn that very limited formal records of evidence in a great number of types of court case had been kept historically, with the exception of indictment trials and a relatively small number of civil cases where the State provided for a formal transcript.

In virtually all other cases, any party wishing to have a formal transcript is required to “make and pay for the arrangements themselves,” he noted.

Mr Justice Clarke said there was a strong case for creation of a group of experienced senior and legally qualified court officials who could deal with all aspects of pre-trial procedure which did not require the intervention of a judge.

Greater availability of support staff for judges would also improve the system, he said.

The delay in the timescale within which a judge can begin working on a judgment increased the overall amount of work involved and contributed to a “classic vicious circle,” he observed.

He favoured a move where judges could produce a good first draft quite soon after conclusion of a case, but this would hinge on ensuring there were enough judges available.

He also said that if Court of Appeal hearings were to be productive and efficient, it was “essential” that all of the judges of the court had the full opportunity to read into the case in advance.

Referring to the Judicial Council Bill, which makes provision for both judicial training and collating of sentencing information, Mr Justice Clarke said it should not be seen simply as a disciplinary body but one designed to enhance judicial standards.

He did not see the need for the council to be fully up and running before planning could take place, with adequate resources for training

Central Criminal Court

In a detailed response, NUIG senior law lecturer Tom O’Malley said that serious consideration had to be given to the role of the Central Criminal Court.

Mr O’Malley questioned whether it was appropriate that virtually all murder and rape cases should be decided by a jury drawn from “the same limited geographical area, irrespective of where the alleged crime occurred,” since it sat mainly in Dublin.

Referring to recent debates about sentencing, Mr O’Malley said that some media commentary and political observations might suggest development of guidelines for same was “fairly simple and straightforward,” but “nothing could be further from the truth”.

“Sentencing is inherently a difficult and complicated task, and no guideline system can make it any different,”Mr O’Malley said.

Unless a “crude system” of mandatory sentencing was introduced – which would be “scarcely fair or constitutional” - guidelines had to be sufficiently detailed and fine tuned to reflect and accommodate the many different circumstances in which particular offences can be committed, he said.

Mr O’Malley favoured “judicially favoured guidance” for serious offences, developed by the Court of Appeal – which would require additional resources. More general guidelines may have to be introduces for offences dealt with by the district court, similar to the magistrates’ court guidelines in England and Wales.

The seminar was chaired by NUIG Irish Centre for Human Rights director Prof Siobhan Mullally and hosted by NUIG head of school of law Charles O’Mahony.