Law Reform Commission Report on Reform of the Irish Court
System
Article by Aoife O’Donoghue, Current Examiner in F1 Business Laws
Introduction
The Law Reform Commission has just issued a Report on proposed reforms to the Irish
Court System. In November 2010 the Report on the ‘Consolidation and Reform of the Courts
Acts’ was published as a systematic review of the multiple laws across various sites which
currently outline how the Irish judicial system operates. The Report follows on from the
Consultation Paper on the Consolidation and Reform of the Courts Acts which was
published in 2007. The main finding of both the Report and the Consultation Paper is that
the 240 Acts which currently cover the Court system should be consolidated into one Act
and that several other key reforms should be undertaken as part of the reform process to
improve the administration of justice in Ireland.
This proposal of consolidation of the various strands of law was actually first made in 1962
as part of the Programme of Law Reform. It is hoped that this time round the Government
may make a move on actually implementing some of the proposed reforms that are
suggested in this exhaustive Report. These reforms would also tackle the issues that have
come about due to the major increases in the numbers of cases that come before the all
Courts over recent years. For instance, in 2001, the Supreme Court issued 25 judgements;
by 2009 this figure had risen to over 35. The increase in the numbers of cases coming
before the Supreme Courts has been occurring over a lengthy period of time and is
replicated across the other Courts in the Irish legal system.
The Law Reform Commission has included several principles to guide it in the preparation of
this Report. The first is that any reform should create a comprehensive and durable
framework or structure into the future; proposed reforms should anticipate future
developments in the Courts and be responsive to any changes needed. Secondly, the
proposed Bill should set out as comprehensibly as possible the jurisdiction of the various
courts to ensure that they do not stray into areas not tasked to them in the proposed Bill.
Thirdly, the Report should review the existing Acts to determine their continued relevance;
this includes a review of some Acts which date from prior to the foundation of the State.
Fourthly, the Report updates and clarifies the existing law. Fifthly, examine whether certain
provisions which have previously been contained in Acts, would be better placed in the
Statutory Rules of Court. Sixthly, the proposed reforms should enhance the effectiveness of
the administration of justice with due regard to the Constitution and the rights and obligations
contained therein. Finally, the Report should focus upon specific reforms and statutory
codification that would ensure the administration of justice within the State.
The Current Court System and the extent of each Court’s jurisdiction
The Irish Court system was first established under the auspices of Articles 64 to 73 of the
1922 Constitution. The Courts of Justice Act 1924 sets out the basis for the Court system in
operation today. The 1937 Constitution under Articles 34 to 38 sets out the concrete basis of
the current system of courts and jurisdictions, though it did not radically change what had
been set up in 1924. Under Article 34 of the Constitution justice is administered by courts
established by law and justice is administered in public. Under Article 34.5.1 of the
Constitution judges must be independent in the performance of their functions as officers of
the Court. Article 38 of the Constitutions asserts that ‘[n]o person shall be tried on any
criminal charge save in the due course of law.’ The 1937 Constitution also sets out the
composition of the court system stating that there will be a court of final appeal, the Supreme
Court, and courts of first instance, which should include a High Court. The other courts such
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as, the Circuit Court and District Court are not specifically mentioned in the Constitution,
though reference is made to other courts. The Supreme Court and High Court have full
jurisdiction in all criminal and civil matters. Legislation implementing the terms of the 1937
Constitution was finally introduced in 1961 in the guise of the Courts (Establishment and
Constitution) Act 1961 and the Courts (Supplemental Provisions) Act 1961. The Constitution
enables the establishment of special courts if the provision of justice requires this to occur
and this enabled the establishment of the Special Criminal Court. Like most domestic court
systems, the Irish Court system is thus hierarchical. The Supreme Court is as the top of the
hierarchy, followed by the High Court, the Circuit Court, and the District Court. There are a
number of other administrative courts such as the Employment Appeals Tribunal, An Bord
Pleanála, and the Labour Court. These deal with specific areas of law with leave to appeal to
the High Court.
The Supreme Court is the highest court of appeal from cases originating in any of the other
Courts within the system. The Court consists of the Chief Justice and seven other judges sit
as well as the President of the High Court who is an ex officio member. In the situation
where one of the ordinary judges of the Supreme Court is president of the Law Reform
Commission, the body that issued the Report which this piece is the subject, another judge
may be added to the Court. Usually the Supreme Court sits in sessions of three judges. The
Court sits as five in the instance of a challenge to the constitutionality of a statute or if an
important point of law arises in a case. The Supreme Court sits as seven judges sit to hear
cases of exceptional importance, such as reference of a Bill to the court under Article 26 of
the Constitution.
The High Court has full jurisdiction in and power to determine all matters and questions
whether of law or fact, civil or criminal. Under the 2007 Court and Court Officers
(Amendment) Act, there is a President who is also a member of the Supreme Court. A jury
sits in some civil cases and in most criminal cases. The High Court is the court of appeal for
the District and Circuit Courts. When exercising its criminal jurisdiction the High Court sits as
the Central Criminal Court. A judge of the Supreme Court and two Judges of the High Court
sit as the Court of Criminal Appeal. It hears appeals from the Circuit or Central Criminal
Court. Appeals can be heard regarding a sentence, a conviction or both. The Special
Criminal Court sits with no jury. It was created under the Offences against the State Act
1939 and as such is only utilised in a small number of cases. The Courts-Martial Appeal
Court hears appeals by persons convicted by court-martial and is focused upon the Irish
armed forces.
The Circuit Court is divided into eight circuits: one judge is permanently assigned to a circuit
however where the Circuit Court is a particularly busy circuit more than one judge may be
assigned. Civil cases up to €38,092 maybe heard in the Circuit Court, though this figure
maybe amended by the parties if they see fit. In the area of family law the Circuit and High
Courts have concomitant jurisdiction. The Circuit Court has jurisdiction in a wide range of
family law proceedings, such as in judicial separation, divorce, nullity and appeals from the
District Court. The Circuit Court has the same jurisdiction as the Central Criminal Court in
indictable offences except murder, rape, aggravated sexual assault, treason, piracy
and related offences and has a jury. The Circuit Court exercises its jurisdiction in either the
area where the offence has been committed or where the accused person has been arrested
or resides. However, on application from the prosecution or from the defence and if the
Court is satisfied that it would be unjust not to do so, in Circuit Courts outside Dublin the trial
judge may transfer a trial to the Dublin Circuit Criminal Court. It is the court of appeal in both
civil and criminal cases coming from the District Court. The Circuit Court has appeal
jurisdiction in regard to decisions coming from the Labour Court, the Unfair Dismissals
Tribunal and the Employment Appeals Tribunal.
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The District Court is the lowest court in the system. The numbers of judge in the District
Court should exceed more than 60, with the exception of the President of the Court under
the Courts and Court Officers (Amendment) Act 2007. Like the Circuit Court the District
Court’s jurisdiction is divided on a geographical basis. The country is divided into 24 districts.
One or more judges are permanently assigned to each district as well as to the Dublin
Metropolitan District. With the exception of the Dublin Metropolitan District each District
Court office deals with all elements of the work of the District Court. The District Court is a
court of local and summary jurisdiction. The business of the District Court includes; criminal,
civil, family law and licensing. The District Court’s civil jurisdiction covers matters up to
€6,349 and the Court grants dance and liquor licences. Its criminal jurisdiction extends to
summary offences and minor indictable offences. It also has some limited appeal jurisdiction
in relation to particular statutory bodies.
While this may appear as a fairly uncomplicated system of courts, the fact that law regarding
the extent of the jurisdiction of these courts is spread across the Constitution, primary
legislation, statutory instruments and case law makes the application of justice much more
difficult for judges and practitioners alike. In difficult questions regarding the correct
jurisdiction or court for a particular issue, whether the right decision has been made requires
an application of a varied and sometimes contradictory sets of laws, a consolidated
approach as is advocated by the Law Reform Commission in this Report, would enhance the
current system and make questions of jurisdiction far more settled.
Suggested Reforms to the Current System
The Commission recommends that any new Courts (Consolidation and Reform) Bill should
set out the role and jurisdiction of; the Supreme Court, the Court of Criminal Appeal, the
Courts-Martial Appeal Court, the High Court, the Circuit Court and the District Court. The
core reform to the system that is proposed in the Report is that the statutory provisions
regarding the jurisdiction of the courts, and other linked matters relating to court offices,
which are now found across 240 separate Acts, should be set out in a single Courts
(Consolidation and Reform) Act, the contents of which are set out in the Report. This would
make, what is currently a somewhat confusing system more easily understood and make
any future reforms more easily achieved as the law would not be spread across such a
disparate array of sources, such as the Constitution, primary legislation, statutory
instruments and case law. It recommends that the new Act should be divided along thematic
lines such as jurisdiction, judges and presiding judges, special rules in particular
proceedings and matters of procedure, rights of appeal, appeals and references of questions
of law and court offices and court officers. This certainly would make the understanding of
the jurisdictions of the various courts and the roles of court officers much more
straightforward and aid in the application of justice in all areas of the law.
Conclusion
This is not the first time that the urgent need for reform has been put forward. A report in
1996 suggested reforms which would have had a major impact upon how the court system
was managed and how jurisdiction of the Courts was understood, a lot of these reforms were
never put into action. It would be a pity if the recommendations contained in this Report were
also not implemented. Implementation of the contents of the Report would aid the Court
system in dealing with the ever increasing workload that comes before it. As was already
discussed this has been increasing on an annual basis and this escalation in case numbers
is set to continue, though some steps to stem the flow have been taken by the Government.
The Irish legal system is dependent upon an effective and sophisticated court structure to
ensure the rule of law and the implementation of justice is maintained. The reforms
suggested in the Report go some way to making the Irish Court system function more
successfully.
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