More tribunals require more judges, which means there are fewer left to try cases. Ken Murphy argues that appointing extra judges makes economic sense
The Government decision earlier this week to appoint the former president of the High Court, Mr Justice Frederick Morris, to conduct an inquiry into the conduct of certain gardaí in Donegal is unusual only because the judge concerned has retired. More frequently, serving judges have been taken away from their courtrooms to chair tribunals or perform other difficult tasks; roles where judicial independence, analytical skills, knowledge of fair procedures and the ability to draft thorough and balanced reports have been much needed in non-courtroom contexts.
But what happens in the courtrooms and to the caseloads the judges leave behind? Do governments ever consider the level of disruption to the justice system which results from so many key personnel being seconded to non-courtroom duties?
It seems not. A serious problem of increasing and unconscionable delay has emerged in the High Court and in other courts because of an already over-stretched justice system being deprived for lengthy periods of substantial numbers of judges.
The High Court at full strength, according to current statutory provisions, has 24 judges. Even if all 24 were available, there are good grounds to argue that the number is inadequate to match the ever-rising tide of litigation which our increasingly complex society produces. The trouble is that for years all High Court judges have not been available to sit as judges because the Government has called some away for other duties without replacement.
At present Mr Justice Moriarty is in his fourth year chairing the tribunal of inquiry into the finances of certain politicians following on the earlier tribunal report of another High Court judge, Mr Justice McCracken. Ms Justice Laffoy is in her third year chairing the Commission of Inquiry into Child Abuse. Mr Justice Quirke is in his second year dealing with benchmarking of public service pay. Mr Justice Smith has recently been seconded for what is expected to be a period of years to oversee the new systems created under the Standards in Public Office legislation.
In addition, the vacancy created by the retirement of Mr Justice Morris has not yet been filled, with the new judge, already nominated by the Government, not due to take office until next month, leaving the High Court short of a replacement judge for the not untypical period of four months.
Nor has the Circuit Court escaped. Judge Lindsay has spent years chairing a tribunal into contaminated blood products and Judge O'Leary has been dealing with the Ansbacher account holders and, before that, the Luas inquiry.
The consequence is that a High Court judiciary, which today is 20 per cent under strength, is falling further behind. Apart from the further deterioration if a judge or two were to fall ill, the increasing phenomenon of very lengthy cases such as the Master Meats case - which settled suddenly earlier this week, having been at hearing for approximately a year - can render judges unavailable to take other cases for very lengthy periods.
Acute consequences are felt in the Central Criminal Court where the most serious cases such as murder and rape are tried. What makes such delays objectionable is that the accused, though presumed innocent, will often be in prison during this period. If on bail, he/she may well be walking the streets in the same neighbourhood as the victim and family of the victim of the alleged crime.
IN THE judicial review list, where legal challenges are brought to decisions of administrative bodies, the situation is also deteriorating. Instead of cases receiving a hearing date next term, they are being put back to the following term. Many of these cases are urgent, as in the asylum list where decisions of the Refugees Appeals Commission are challenged by people facing deportation. Delays are growing in the family law lists in the High Court (although to an even greater extent in the Circuit Court where divorce and judicial separation cases are taking much longer). Even major commercial law cases, which have been specially fixed with witnesses travelling from abroad, frequently cannot commence, often after days of waiting.
Worse is to come. Company law enforcement and EU competition law cases are on the way and extradition cases are about to be moved from the District to the High Court. Yet as things stand, in almost every area (although not as yet in personal injury work) court delays are growing despite the hard work and creativity of judges and court staff.
The solution is simple. The Government should appoint half a dozen new High Court judges and a number of additional judges in other courts. Failure to do so is a false economy. In many respects, the judge is the cheapest element in the system. Delays and postponements waste economically and socially valuable personnel and resources.
Citizens' access to justice is denied through delay, the dynamism of the Irish economy is blunted and all who deal with the courts are frustrated by courtrooms lying idle because judges have been committed elsewhere by the Government.
Ken Murphy is director-general
of the Law Society of Ireland