Two apparently contradictory proposals to deal with some of the problems in the courts system have been advanced recently by the Government. The Chief Justice has put forward a set of proposals for the radical restructuring of the whole system.
No one denies there are problems in the current arrangements, though opinions differ on which are the most important. There are delays which vary widely, among the different courts and between geographical areas. There is the high cost of litigation, especially in cases that go to the High Court. There are obvious anomalies, in that some crimes must go the Central Criminal Court (the High Court) while others, equally serious, are heard in the Circuit Criminal Courts.
A fortnight ago the Department of Enterprise and Employment announced the setting up of personal injuries compensation boards, which would take many injuries sustained at work and, eventually, in road traffic accidents out of the court system. This is intended to reduce legal costs, though representatives of the legal profession have expressed doubts that it will do so, claiming it will create a new bureaucratic and administrative layer.
Last week the Government agreed in principle to change the jurisdiction of the district and circuit courts, increasing the value of the claims they can deal with about threefold. This would take many cases out of the High Court and enable them to be dealt with in the Circuit Court, where they would be dealt with much more quickly and with one junior, rather than a senior and junior, barrister. In turn many Circuit Court cases would fall to the District Courts.
This would, it is hoped, have the effect of reducing costs - the very same purpose as that behind the personal injuries compensation boards. It is not clear if the proponents of the two measures have attempted to co-ordinate their efforts. Nor have they asked those most directly affected, the practitioners, for their views on how effective they may be.
Meanwhile, Mr Justice Keane identified far more extensive anomalies in the system. He, too, saw cost as a problem. "Clearly a legal system to which people are unwilling to have resort, unless they are effectively compelled so to do, because of the high cost of litigation cannot be regarded as genuinely accessible to all," he said.
In a lecture to law students in UCC the weekend before last, he pointed out that our system has remained unchanged since 1924, while the demands on it have increased exponentially, so that it is now creaking at the seams and riddled with anomalies. For example, rapes and murders must be heard in the Central Criminal Court, while manslaughter, fraud, drug offences, robbery with violence and kidnappings are all dealt with in the Circuit Criminal Court. Yet a case of major fraud, for example, might be far more legally complex than a murder case.
In civil law similar anomalies occur. The issue of libel is usually decided by a jury, which is only available in civil cases in the High Court. Therefore, even if a person might be happy with the level of damages available in the Circuit Court, he or she must go to the High Court, with all the attendant expense, to have the issue decided by a jury.
The Chief Justice pointed out that the situation in family cases is particularly absurd, with "the High Court and the Circuit Court having concurrent jurisdiction to grant divorces, judicial separations, and decrees of nullity with no guidance to the hapless litigants in choosing the court in which to institute the proceedings".
He said these anomalies arose from the fact that we have a three-tier system of courts of what is known as first instance - that is, courts to which litigants can go directly to solve their disputes. These are the District, the Circuit and the High Court.
His most radical proposal is effectively to abolish the Circuit Court, and distribute its functions between the High Court and an expanded District Court system.
Under such a system the High Court would have unlimited jurisdiction in civil matters, and exclusive jurisdiction in serious crime, and would sit as a regional court to hear these cases. It would hear major constitutional cases and judicial reviews in Dublin, but all High Court judges would sit in rotation in the different regions.
The District Courts would have a local and limited jurisdiction. However, they would, under the Chief Justice's proposals, hear all family law cases with the exception of nullity.
The whole system of appeals would also change under these proposals. Instead of the right to appeal from the District to the Circuit Court, and from there to the High Court, as exists at present, there would be a separate Court of Appeal with a civil and criminal division. This would hear appeals from the High Court.
Such restructuring would leave the Supreme Court to hear appeals only when a point of law of public importance was involved, and constitutional cases.
Mr Justice Keane concluded by appealing for a working group to consider these and other proposals for reform. Given the fact that piecemeal, and sometimes contradictory, changes are taking place in an apparently haphazard fashion at the moment, such a working group seems overdue.
