Tag: judges

Open justice and civil jurisdiction, in the Courts Bill 2013

Element of Photo of Four Courts By Night, by MassafelliPhotography.comThe Department of Justice yesterday published the Courts Bill, 2013, which has two main aims. The first is to increase the monetary limit of the jurisdiction of the District and Circuit Courts in civil matters. The second is to allow the press some limited access to family law proceedings.

At present, pursuant to the Courts Act, 1991 (also here), the limit for the District Court is €6,384 (formerly £5,000), and this Bill would raise it to €15,000; and the limit for the Circuit Court is €38,092 (formerly £30,000) and this Bill would raise it to €60,000 for personal injury actions and €75,000 for all other civil claims. This is long overdue, as it will mean that cases can now be heard in more appropriate courts; in particular, matters appropriate to the Circuit Court need no longer be commenced in the High Court. In such cases, there will be simplified procedures and reduced costs. I think this is an entirely sensible idea, but I have two comments. First, section 16 of the Courts Act, 1991 (also here) provides a power by which the government may by order vary these limits without recourse to primary legislation; and I hope that this power is used in future to ensure that the District and Circuit Court limits keep pace with inflation. Second, I am not convinced that bifurcating the Circuit Court jurisdiction is a good idea. Although the general jurisdiction is to be €75,000, in his statement on the Bill, the Minister justified the lower threshold for personal injuries cases as a measure “to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs”. I don’t think that it will have an effect on such awards, but I do think that it will mean that cases which should be dealt with in the Circuit Court will continue unnecessarily to be heard in the High Court.

The other main issue dealt with in this Bill relates to open justice and the in camera rule. As I have had occasion to point out in previous posts on this blog, Article 34.1 of the Constitution requires that, “save in such special and limited cases as may be prescribed by law”, justice shall be administered in public; and section 45 of the Courts (Supplemental Provisions) Act, 1961 (also here) permits justice to be administered otherwise than in public in family law matters (see especially s45(1)(b)-(c)), to protect the identity and privacy of parties and children in such proceedings where there is no good reason that such sensitive matters be published. However, to prevent the perception of undue secrecy in such cases, section 40 of the Civil Liability and Courts Act, 2004 (also here) and associated regulations (the Civil Liability and Courts Act 2004 (Section 40(3)) Regulations 2005 (SI No 337 of 2005)) allow certain people to attend family court sittings to draw up and publish reports, as as those produced by the pilot Family Law Reporting Service and the Child Care Law Reporting Project. The new Bill goes substantially further, in that it allows for “bona fide representatives of the Press” to attend such proceedings. This term is not defined in the Bill, so it will be a matter for a judge in any given case to determine whether a person is such a bona fide journalist. Of course, the Minister may make regulations similar to those under the 2004 Act to set out some criteria to aid in that determination, but he made no comment about this in his statement on the Bill.

However, this right of access is subject to a wide-ranging discretion on the part of the judge to make necessary orders to protect the identity of children or in the interests of the administration of justice. Such orders may include restricting the attendance of journalists during the hearing or particular parts of it, or restricting or prohibiting the publication or broadcasting of evidence given or referred to during the proceedings. Moreover, this overall relaxation of the in camera rule is balanced out by a specific offence of publication or broadcast of in camera matters (which, I take it, replaces the common law rules relating to contempt in such circumstances). This is all very welcome, but I am disappointed that the opportunity was not taken to go further and provide a power permitting the broadcast of (certain) proceedings, in due course.

Even if the Minister could have taken a few more steps, those that he is proposing to take are very welcome in helping to shine appropriate light in an area of the administration of justice which is not as open as it might be.

Quinns and Gowns – Contempt and Respect

Pillars at front of Four Courts, Dublin. Photo by William Murphy, infomatique, via FlickrA little late (because of the rebuild and ongoing redesign of the blog, on which all comments are gratefully appreciated) I want to focus on a busy week for the Irish Supreme Court. The week before last, not only did the Court have its full roster of hearings and judgments, but the judges of the Court also made a small piece of history by stepping out in new gowns. At the beginning of the last judicial year, the wearing of wigs by judges became optional, and most have since abandoned the horsehair. At the time, I posed the question, with wigs gone, whether a revamp of judicial gowns would be far behind. It wasn’t. As Dearbhail McDonald reports, fashion designer Louise Kennedy has designed new, simplified, judicial gowns. They were commissioned in 2009, but put on hold in 2010 for financial reasons, and have now been introduced at least at the level of the Supreme Court (more coverage: Irish Times | Sunday Business Post | theJournal.ie). As Dearbhail wrote (with added links):

New gunas for judges — now for real reform

… The new European style robes are more than a costume change — they mark a major (long overdue) symbolic break with the English tradition. … The new gowns are welcome, but their introduction pales in comparison with the widespread reforms needed in our courts. … New Chief Justice Susan Denham has argued for the introduction of a Civil Court of Appeal and specialist courts that would alleviate the burden of cases on the Supreme Court. …

(For the benefit of non-Irish readers, the word “gunas” in the headline is, I think, an attempt by the sub-editor at multi-lingual wordplay. The word “gúna” (pronounced “goo-nah”) is the Irish word for “dress” or “gown”; the plural in Irish would be “gúnaí”, pronounced “goo-nee”. The sub was plainly going for an aural link between “gown” and “gúna”, and thus between “gowns” and “gúnas” (pronounced, presumably “goo-nahs”). I’m not sure that the attempt at multi-lingual wordplay was all that successful, but never mind).

The simplification of judicial court dress is to be welcomed, but I would pause at this point. Court proceedings are serious matters, and some dignity and ceremony – including some formality of regalia on the part of court actors – are entirely appropriate (see Rob McQueen “Of Wigs and Gowns: A Short History of Legal and Judicial Dress in Australia” (1999) 16(1) Law in Context 31; reprinted Federation Press Digital Edition 2008). In many ways, they are symbolic of the respect to which the Courts and their orders are entitled. One of the new gowns’ first outings was when the Supreme Court handed down their judgments in Irish Bank Resolution Corporation Ltd v Quinn Investments Sweden AB, and others [2012] IESC 51 (24 October 2012), a case concerning contempt of court and the failure of three businessmen to respect orders of the courts.


YouTube, Facebook, and the responsibilities of intermediary gatekeepers

YouTube logo, via YouTubeIn my previous post, I argued that, as a matter of principle, the controversial American anti-Islamic video should not be censored. The most obvious form of censorship comes from government action, such as legislation banning speech, but that does not arise in this case. Less obvious, but no less insidious, was the White House request to Google to re-consider whether the video breached YouTube rules. This was not a formal ban, and Google declined to take the video down in the US, but it did block access to it in in Egypt and Libya. This raises two important questions about the structure of free speech. First, in the online world, where most of us access the internet through a range of intermediaries, government censorship does not necessarily need to target the disfavoured speech; it need only target the intermediaries. Very few US companies would feel able to decline a request like that from the White House, and Google are to be commended for standing firm in those circumstances. Second, these intermediaries now have a great deal of practical power over online expression – not only can they be co-opted by government as agents of state censorship, but they also have the capacity to act as censors in their own rights, as Google did in their unilateral action to block access in the Middle East.

Such intermediaries are effectively gatekeepers are those who enable – and control – our access to that information, and this raises profound issues of principle about the role of intermediary gatekeepers in the structure of free speech about which I have written on this blog (here | here | here). At present, such intermediary gatekeepers are all private entities, operating to their own rules, and it is not at all clear how they can be made accountable to their users or the wider public for their private actions. Given the practical, social and legal issues that arise in policing content in such a quasi-public sphere (pdf), it has been argued that search engines and other intermediaries should have public interest obligations, perhaps by analogy with common law duties that govern public utilities (pdf). In particular, free speech norms should not only be about protecting speakers against a heavy-handed state but also about protecting speakers and readers against heavy-handed intermediate gatekeepers. (more…)

McMahon on Judging

Mr Justice Bryan McMahon, via Listowel Writers' Week websiteI spent a lot of today at the Law Student Colloquium which I mentioned in my previous post; and it was a great deal of fun. The day culminated with the First Annual Brian Lenihan Memorial Address, delivered by former academic and retired judge Bryan McMahon (above left), on the topic of


He told us that a judge has a front row seat in the theatre of life; and, in his characteristically erudite and witty speech (citing all the great legal philosophers, including Groucho Marx, Maurice Chevalier, and Joe Duffy), he gave a wonderful review of the dramas, comedies and tragedies that have played out in his courtrooms. It was, he said, all very different from the jurisprudence of judging with which he was concerned as an academic, and yet he brought all his academic rigour to bear on the analysis of his twelve years on the bench, during which he said he sat in every county in Ireland.

The heart of his discourse was a discussion of judicial attributes. The essential traits include courtesy, patience, knowledge of the law, the ability to listen, the ability to make a decision, and the ability to give reasons for those decisions. Judges, he said, are paid not necessarily to be right but to make decisions. He went straight from practice to the bench without formal judicial training, but he said he received lots of good informal advice from his colleagues. The best, he said, was never to be rushed into a decision. It is the essence of judging to make decisions, and they have to be made with due care and proper speed, but, even so, they must not be rushed. I think that this is sound advice for life, not just for judging. Desirable judicial traits, he said, include wisdom, confidence, humour, and a good knowledge of the law (his emphasis; and he included jurisprudence in his enumeration).

He reminded us that, in every case, there are two sides, so judges’ decisions are never inevitable: there are at least two competing arguments, and often many possible alternative solutions. He welcomed the development of written decisions submissions* in High Court cases, but whilst he saw them as extremely helpful, he said that judges have to be careful not to let such submissions narrow their focus to just those two presented solutions.

He also reminded us that judges face different challenges in distinct kinds of case and in disparate areas of law. He gave three examples. First, the kind of discretion which a judge in a civil case has in determining a remedy such as a level of damages is very different from the kind of discretion which a judge in a criminal case has in determining a custodial sentence. Indeed, he said that he found criminal sentencing a profound responsibility and a matter of great difficulty. Second, he said that the judge’s role in jury trials is very different from non-jury trials. In such cases, the judge must be vigilant to maintain integrity of the jury – an onerous and increasingly difficult responsibility – and the judge must charge the jury properly. Third, he said that the skills of judging in family cases are different again. The procedure is often more relaxed, and there are a great many lay litigants. Here, the task of the judge is not one of attributing blame or focusing on the past. Instead, the judge must be mediator, educator persuader and broker as well as decision-maker. The relevant legislation provides a wide range of discretion, which allows the judge to look to both parties and children, and to look to future.

He concluded by calling into question the declaratory theory of judicial decision-making (which says that judges don’t make law, merely find and apply it). He said that judges make law all the time when making decisions on novel points and ambiguities. In open areas, judges are susceptible to three kinds influences. First, there environmental prejudices, reflecting a judge’s environment and background – these are inevitable, and for that reason ought not to be seen as problematic. Second, there are personal prejudices – these are unworthy, and judges seek to put them aside. Third, there are matters of personal intuition and emotion. Intuition, he said, is simply a sort-circuit application of experience. A judge, he said, neither cannot nor should not deny his or her true self, but rather must be self-aware.

He had said at the start of his presentation that subjectivity is not necessarily a bad perspective, and by his conclusion he had not only proved this, he had gone much further and demonstrated that it is a necessary perspective for good judicial decision-making. He argued that the story is everything and everything is a story; and he told us many good stories tonight. He argued that the power of narrative can be compelling; his narrative certainly was. He concluded that literature is unparallelled in providing insight into and experience of the full range of the human condition, and certainly provided a great insight into the full range of a judge’s decision-making.

It was a fitting tribute to Brian Lenihan, and it was an excellent conclusion to a wonderful day.

* Update: typo corrected on foot of comments below.

The Council of State and the recusal of judges

Simon Coleman's painting of the first meeting of the Council of State on 8 January 1940Two very different stories in the media over the last few days have coalesced in my mind over the weekend. The first story is the announcement by the President of seven appointments to the Council of State. The second is the debate in the US about the recusal of Supreme Court Justices from forthcoming challenges to health care legislation.

The Council of State is established by Article 31 of the Constitution, and its primary role is “to aid and counsel the President”. The first meeting was convened by President Douglas Hyde on 8 January 1940, and a large painting of the event (pictured above left) by Simon Coleman hangs in Áras an Uachtaráin, in a reception room now called the Council of State Room. At the end of last week, the recently-elected President Michael D Higgins announced the appointment of Michael Farrell, Deirdre Heenan, Catherine McGuinness, Ruairí McKiernan, Sally Mulready, Gearóid Ó Tuathaigh, and Gerard Quinn to the Council.

Among the specific functions ascribed to the Council by the Constitution, Article 26.1.1 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court to determine whether the Bill is constitutional or not. This power is by far the most common reason why Presidents have summoned the Council. For example, the first meeting was called so that the Council could advise the President on whether to refer the Offences against the State (Amendment) Bill, 1940 to the Supreme Court. The President decided to do so; the Court upheld the constitutionality of the Bill; and it was duly enacted as the Offences Against the State (Amendment) Act, 1940. Indeed, there were reports over the weekend that Government ministers have discussed the possibility of President Higgins referring legislation concerning an EU fiscal treaty to the Supreme Court.

The President’s appointments to the Council made me think again about the procedures under Article 26. Since Article 31.2 provides that the Chief Justice is an ex officio member of the Council of State, this means that the Chief Justice is a member of the body which advises the President as to whether a Bill should be referred to the Supreme Court. However, as Article 34.4.2 provides that the Chief Justice is the President of the Supreme Court (and thus head of the judiciary), it is natural that the Chief Justice would sit on any reference to the Supreme Court pursuant to Article 26. Indeed, there have been 15 such references to date; and, not only did the Chief Justice of the time sit in all 15 references, he gave the judgment of the Court in every case! The question which has arisen in my mind is whether it is appropriate for the Chief Justice to participate in both stages of this process. The Constitution plainly allows for this, and it has happened in every case so far, but my question is whether this practice should continue. (more…)

Better angels, undesirable devils, and the judicial pay amendment

Why Vote NoEarlier this evening, I did an interview on The Last Word with Matt Cooper on Today fm concerning next Thursday’s referendum to amend the Constitution to add a mechanism to allow judges’ salaries to be reduced. The arguments in favour of the principle are very strong: as a matter of fairness and balance, when other public servants are suffering pay reductions, there is no good reason why judges should not do so too. But that is not the only principle at stake here: the independence of the judiciary is an important aspect of the rule of law. Any implementation of the principle of reduction in judicial salaries in line with other public servants ought to be done without doing violence to the principle of the independence of the judiciary. As I said on The Last Word with Matt Cooper this evening, I do not believe that the proposed amendment manages to maintain this balance.

The amendment proposes that “provision may … made by law to make proportionate reductions to the remuneration of judges” in certain circumstances. Leaving aside those circumstances, this simply allows the reduction of judicial salaries to be effected by legislation, which in the ordinary way is proposed by Government. This gives the executive significant power vis-à-vis the judiciary, and represents a significant inroad into the delicate balance of powers between the executive and the legislature on the one hand, and the judiciary on the other.

Judge dread

Judge Dredd via WikipediaGrowing up, I loved the comic 2000AD, and one of its leading characters was Judge Dredd (pictured left). We never saw underneath his helmet’s visor because – with his catchphrase “I am the law” (echoed by Lord Thurlow LC in The Madness of King George) – he represents the impartiality and facelessness of justice. This is why more traditional representations of lady justice show her wearing a blindfold – as in the statute overlooking upper castle yard in Dublin Castle: the blindfold represents objectivity and impartiality. Hence, under Article 34.5.1 of the Constitution, judges make a declaration that they will execute their functions “without fear or favour, affection or ill-will towards any man”. This judicial impartiality, abjuring both preference and malice, is the cornerstone of the rule of law – it requires and allows both that questions of legal right and liability to be resolved by application of the law and not by the exercise of discretion, and that the laws of the land should apply equally to all: be you never so high, the law is above you. But, as the text of judicial oath expresses, to be able to decide without favour, judges must be free to decide without fear – that is, without the dread in the title to this post. In particular, they must be free to decide against other arms of government without fear of retaliation.

Executive retaliation can be overt: John Bradshaw presided over the trial of Charles I in 1649; he died in 1659; but Charles II had his body exhumed for posthumous execution in 1661. Less dramatically, but more insidiously, Stuart monarchs frequently sought to dismiss judges who took decisions of which they disapproved. US President Thomas Jefferson, alarmed at the growth of judicial review of executive action, sought to have Justice Samuel Chase removed from the Supreme Court in 1805, but the impeachment failed in the Senate, and the strong US commitment to judicial review and judicial independence were secured. Colombia, Zimbabwe and Pakistan provide more recent instances of intimidation of judges.

Executive retaliation can be far more covert. US President Franklin Delano Roosevelt, alarmed at the striking down of key legislative elements of the New Deal by the Supreme Court, sought to change the way the Court functioned, especially by adding more amenable judges, but the Bill failed in the Senate. More subtly still, a government can seek to control a recalcitrant Court by pulling the purse-strings: earlier this year, the President of the UK Supreme Court complained that existing funding arrangements for the Court do not adequately guarantee its independence.

Retention of DNA, and the effect of decisions of the European Court of Human Rights

Misha AngristAn article in today’s Daily Telegraph raises important issues relating to the retention of the DNA of innocent persons by the police in both the UK and Ireland. It also raises profound questions as to the effect of decisions of the European Court of Human Rights in domestic law.

According to the Telegraph:

The [UK’s] Coalition Government has pledged to dramatically reduce the time period that police can retain samples of people who were not charged or convicted of offences. It follows a ruling by the European Court of Human Rights in 2008 that a blanket policy of retaining such profiles indefinitely was illegal.

However, no new laws have yet been introduced and the Supreme Court will today hear a test case that such samples should be deleted now. If the country’s top court agrees it could result in police forces having to remove the samples immediately regardless of when new legislation is introduced.

The case is R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (UKSC 2010/0186) (more…)