WHEN he threw out 250 cases at Milford District Court on Wednesday, Judge Thomas Fitzpatrick gave a new twist to long recognised problems in the justice system, particularly in the lower courts.
At least a couple of times a year a judge somewhere in the State walks out of court, complaining about overcrowding, too much noise and a decrepit courtroom. Drogheda Circuit Court was omitted from the Eastern Circuit in 1991 because the judges feared the roof would fall in.
Quite apart from the poor condition of many of the 175 court buildings throughout the State, there have been problems over the 100 other venues which are used for occasional sittings. Courts have heard cases in hotel ballrooms, bingo halls, community centres, rugby clubs and other licensed premises. The old joke about being called to the bar has been given new life in many areas while the ideal of justice being dispensed with dignity has been confined to memory.
Since the State's foundation, occasional District Court sittings have been held in venues "reeking of stale smoke and beer from the activities of the night before", says the Law Society director general, Mr Ken Murphy. In many instances solicitors have taken action to compel improved conditions. Much reform is promised by the Government's decision in November to set up a new Courts Service to assume management of the system.
Where Judge Fitzpatrick has found a new angle is in his assertion that his court could be invalid because it sat in a hotel in Milford, Co Donegal, without planning permission. Some legal sources were surprised yesterday that he elected to strike out 250 summonses rather than adjourn the sitting while the planning question was considered.
Donegal County Council has argued that planning permission was not needed for the sitting because the court sat only occasionally at the hotel.
The Attorney General is currently examining whether this is the correct interpretation of the planning laws and what measures might be needed to eliminate doubt.
The legislation calls for planning permission where there is a "material" change in the use of a venue. The central issue is whether a court sitting once a month or once every two months in a building amounts to a "material" change. The regulations date from 1993 but with effect from mid 1994, in that any "development" started by the State before June of that year is considered exempt from the planning process and the public consultation procedures it requires. As Milford District Court had been sitting in the hotel for some years, this exemption may apply.
Separately, there are narrower legal issues about the validity of the court sittings, not strictly related to planning. A High Court judge is, in effect, his or her court. High Court judges can hold hearings in their livingrooms, which are valid because they are present. It is not clear whether the same applies to a district court judge. For a district court to be properly constituted, not only do the judges have to be properly appointed, but the venue has to be publicly specified by the Department of Justice.
Legal sources said yesterday that even if planning permission for non courtroom venues was found to be necessary, there is little prospect that all "ballroom judgments" would be deemed invalid. The Director of Public Prosecutions could take a test case to a higher court to show that planning arguments are separated from the central question of whether ballroom justice was properly and fairly administered.
If it could be shown that the rights of defendants were not affected, and they enjoyed fair hearings before validly appointed and acting judges, it is considered unlikely that verdicts would be overturned.
The DPP could also seek a High Court order requiring one of the cases thrown out of Milford on Wednesday to be heard, thus validating the non courtroom venue procedure. Alternatively, the Attorney General could seek a declaration from the High Court saying planning permission is not required.