How do our courts work?

 

Jail Full

The volume of work at my place of employment has caused me to neglect this blog, for which I apologise.

Rather  than simply stopping  blogging, I thought I might combine work and blogging.

The piece below is a very rough draft of the introductory chapter of a book I am writing for students entering third level education. It should be clear and easy to understand.

A lot of the readers of this blog do not necessarily understand how the courts work in this country and so this presents a great opportunity  for us to help each other

I would greatly appreciate it if you would read this chapter.  Hopefully you will learn something, or simply confirm what you already know. Then I would ask that you provide  feedback on whether the language was accessible, whether terms and concepts were properly  explained, and if anything has been left out.

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Introduction: The Hierarchy and Jurisdiction of the Courts of Ireland

 

Learning Outcomes

At the completion of this chapter, the reader should know and understand the following:

Ø  Core legal concepts that are often used in this book.

Ø  The difference between the criminal courts and the civil courts.

Ø The courts system in Ireland and what the different courts can and cannot do.

Ø The people that work in the courts system.

 

The contents of this book will be easier to understand if you first read this short explanation on how the court system works in Ireland and become familiar with the following concepts:

 

Hierarchy

Generally, any system of grades or ranks, in which some are superior to others. What is meant by the hierarchy of courts is the position of the courts with reference to each other, starting at the bottom all the way to the top.

 

Precedents

Previous decisions of the superior courts which contain a legal principle which may, in a later case raising the same point of law, be referred to and which may influence the court’s decision.

 

Bind a court

Where a court must follow a previous decision or precedent. Lower courts must follow the decisions of higher courts, whether they agree with that decision or not, as they are ‘bound’ by the decisions of superior courts.

 

Adversarial

The Irish legal system is predominantly adversarial, which means it is characterised by its confrontational nature. Parties directly oppose each other, and there is a “winner” and a “loser”. A contrasting system is the inquisitorial system, where the proceedings are conducted by the presiding officer in the form of an investigation rather than a direct contest.

 

 Pleadings

Formal written or printed statements delivered by litigating parties to each other, stating the allegations of fact upon which the parties base their case. This ensures that nobody is caught by surprise on the day of the court hearing, as the parties have been forewarned about their opponent’s arguments and had time to prepare a reply.

 

Injunction

An order of the court directing a party to an action to do something (mandatory injunction) or refrain from doing something (prohibitory injunction).

 

Burden of Proof (Onus)

The burden of proof needs to be satisfied by the person bringing the claim or laying the charge in order to be successful in that action or charge. A plaintiff in a civil action bears the onus to prove his or her claim on a balance of probabilities, whereas in criminal proceedings the State bears the onus of proving the guilt of the accused beyond a reasonable doubt.

 

Indictable

An indictable offence is one which is sufficiently serious to warrant a jury trial (and heavy sentences), whereas a summary or non-indictable offence is one which can be heard by a judge only (often called misdemeanours in other jurisdictions) with correspondingly lighter sentences.

 

Acquitted

When the accused / defendant is found “not guilty” in a criminal trial.

 

Citation

A reference to an authority (for example, a reported judgment) usually in support of an argument or another judgement. For example, Walsh v Family Planning Services Ltd [1992]1 I.R. 496 is a citation of a judgment where the plaintiff was Walsh, the defendant was Family Planning Services, and the case can be found on page 496 of the first volume of the 1992 edition of the Irish Law Reports (I.R.), as opposed to the Irish Law Reports Monthly (I.L.R.M.). Not all judgments are reported. Generally the citation for an unreported judgment will tell you the date of the decision, and the court making that decision.

 

Bar

In systems that distinguish between barristers and solicitors, the Bar generally refers to the professional collection of barristers, whilst “Side-Bar” refers to solicitors.

 

Jurisdiction

Jurisdiction refers to the extent or territory over which legal or other power extends. A decision of an Irish court would not affect an American citizen, unless that American was physically present in Ireland, because then they would be subject to Irish law.

When speaking about civil and criminal jurisdiction therefore, we are talking about what civil and criminal courts can and cannot do, and where they can and cannot do it.

 

Civil courts and Criminal courts

It is impossible to understand the structure and functioning of courts without understanding the distinction between a criminal case and a civil case, and the functions and powers of both courts.

The nature of the dispute and the mechanisms used are the critical differences between the two systems.

Civil procedure involves private law disputes, for example personal injury claims (tort) or claims for breach of contract, where one of the parties to the dispute initiates the proceedings. Criminal procedure deals with the processing of some activity regarded as a wrong against society or the public in general, and is thus a public law matter. Criminal prosecutions are generally initiated by the Director of Public Prosecutions or the Garda Síochána. It is possible for individuals to initiate private prosecutions, but these are rare.

Generally the purpose of a civil claim is to seek compensation (damages) or some specific relief, like an injunction, whereas the aim of criminal proceedings is to punish wrongdoers. For example, if the accused is found guilty and sentenced to a fine rather than imprisonment, that fine is paid to the State and not to the victim of the crime, as the criminal law seeks to protect society as a whole rather than the individual.

Civil proceedings are generally initiated by pleadings, whilst criminal proceedings are generally initiated by a summons and indictment (“charge sheet”). In civil cases we speak of a plaintiff and a defendant, or perhaps applicant and respondent, whereas in criminal cases we speak of the prosecution and adefendant (“the accused”).

In other words, it is not so much the type of wrongful act that distinguishes the civil from the criminal, but the consequences of that wrongful act. If the wrongful act leads to criminal charges, it is governed by criminal law but if it leads to the wrongdoer being sued for damages or having an injunction taken against him or being ordered to perform on a contract, that is governed by the civil law. Therefore it is possible for the same act to lead to both criminal charges and a civil action. For example, if a driver went through a red traffic light and smashed into another car, the driver might be charged in the criminal court with dangerous driving, but might also be sued in the civil court by the owner of the damaged car for compensation. There was only one act, but two types of litigation which ended up in different courts with different questions being asked.

The final distinction to be made between civil and criminal proceedings relates to the burden of proof, which describes the level of evidence needed to secure a judgement or a conviction. In civil cases, any particular issue as well as the overall question of liability is determined on a balance of probabilities, which involves comparing the versions of the plaintiff and defendant. In a criminal case all issues and the question of guilt must be proved beyond reasonable doubt, a higher standard of proof which needs to convince the reasonable person not that the accused is guilty, but rather that there is no reasonable chance that the accused is innocent.


Organisation of the Courts

 

The District Court

The District Court consists of a President and sixty three ordinary judges. The Republic is divided into twenty four districts with one or more judges permanently assigned to each district and the Dublin Metropolitan District. The venue of a District Court case usually depends on where an offence was committed or where the defendant resides or carries on business or was arrested.

The business of the District Court can be divided into four categories:- criminal, civil, family law and licensing. The District Courts are the workhorses of the system, and they hear an enormous number of cases, including things like actions taken under the Control of Dogs Acts, applications for citizenship, applications to amend birth and marriage certificates, and applications under the Environmental Protection Act, 1992 (for noise reduction orders).

The District Court is a court of local and limited jurisdiction. This means that it is restricted as to which cases it can hear and/or decide. As a general rule, a District Court cannot hear a case that has been commenced in a different District Court area, and is restricted to hearing cases where the damages or compensation sought do not exceed a certain amount, and in criminal matters it is generally restricted to summary offences.

A summary offence does not entitle the accused person to a trial by jury, and carries a maximum punishment of twelve months’ imprisonment and/or a monetary fine. An example would be driving a motor vehicle without insurance. An indictable offence entitles the defendant to a trial by jury, unless the accused agrees to a summary trial where the court is of the opinion that the offence is minor. In such cases, the maximum punishment is two years’ imprisonment or twelve months’ imprisonment for one offence and/or a monetary fine. An example here would be assault. In serious criminal cases, for example murder or rape, the District Court may conduct a preliminary hearing to decide whether there is sufficient evidence to commit the accused for trial by jury before a higher court.

 

The Circuit Court

The Circuit Court consists of the President and thirty-seven ordinary judges. The President of the District Court is ex officio (by virtue of their office) an additional judge of the Circuit Court. The country is divided into eight circuits with one judge assigned to each circuit except in Dublin where ten judges may be assigned, and Cork where there is provision for three judges. There are twenty-six Circuit Court offices throughout the Republic.

The work of the Circuit Court can be divided into four main areas: civil, criminal, family law and jury service.

The Circuit Court is also a court of local and limited jurisdiction. This means that it is restricted as to which cases it can decide. As a general rule, a Circuit Court in one county cannot hear a case that has been commenced in another county.

Civil cases in the Circuit Court are tried by a judge sitting without a jury and are restricted to cases where the damages or compensation sought do not exceed a certain amount.

There is a right of appeal against the decision of the judge to the High Court, and a Circuit Court judge may consult the Supreme Court on points of law. An unsuccessful party in a District Court civil case can appeal to the Circuit Court, which will rehear the case and may substitute its own opinion.

In criminal matters, the Circuit Court Judge sits with a jury of twelve. The criminal jurisdiction is exercised by the judge of the Circuit in which the offence was committed or where the defendant (‘accused’) resides or carries on business or where the defendant was arrested. However, the Circuit Judge may transfer a criminal trial from one part of his/her Circuit to another. On application by the Director of Public Prosecutions or the accused, the Circuit Judge may, if satisfied that it would be manifestly unjust not to do so, transfer the trial from the Circuit Court sitting outside of the Dublin Circuit to the Dublin Circuit Court.

 

The Court of Criminal Appeal

This court hears appeals from the Circuit Court, Central Criminal Court or a Special Criminal Court (which is a non-jury court which may be set up under Part V of the Offences Against the State Act 1939). The court consists of three judges, one from the Supreme Court and two from the High Court, with the decision of the court by majority.

 

The High Court

The High Court consists of the President of the High Court and thirty six ordinary judges. The President of the Circuit Court and the Chief Justice are ex officio additional judges of the High Court.

Normally the High Court sits in Dublin to hear original actions (cases that begin in the High Court rather than appeals from a lower court), but it also sits in the other counties during the year.

The jurisdiction of the High Court extends to all matters whether of law or fact, civil or criminal. It also has jurisdiction to hear constitutional challenges (usually by citizens) to statutes (with the Court of Appeal and the Supreme Court (in more limited cases now) having appellate jurisdiction in these matters).

The High Court can award unlimited damages.

When the High Court hears a criminal case, it sits as the Central Criminal Court and only tries serious offences such as murder or rape. It also tries cases which have been transferred from the Circuit Court to avoid trial before a local jury.

Finally, the High Court possesses supervisory jurisdiction over the inferior courts, state bodies and individuals. The High Court has the power to issue an order of:

 

  1. a) prohibition, to prevent a person or body from exercising a power it does not legally have;
  2. b) mandamus, to compel a person or body to carry out a legal duty;
  3. c) certiorari, to investigate or challenge a person or body who has exceeded their legal powers;
  4. d) habeas corpus, to require the person in custody and the detainer to come before the High Court to explain the circumstances of, and justification for, the detention.

 

The High Court acts as an appeal court from the Circuit Court in civil matters. The High Court has power to review the decisions of all inferior courts by judicial review. The High Court may give rulings on a question of law submitted by the District Court and may hear appeals in certain other circumstances provided by statute, i.e. in regard to decisions of the District Court on applications for bail. The High Court can review decisions of certain Tribunals of Inquiry.

 

The Court of Appeal

The Thirty-third Amendment of the Constitution established a Court of Appeal to sit between the existing High and Supreme Courts, and take over the existing appellate jurisdiction of the Supreme Court. The amendment was effected by the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013, which was approved by the People in a referendum on 4 October 2013, and then signed into law by the President of Ireland, Michael D. Higgins on 1 November 2013.

The Court of Appeal was established on 28th October 2014 by the Court of Appeal Act 2014. The court is composed of a President and nine ordinary judges. The Chief Justice and the President of the High Court are ex officio judges of the Court of Appeal. The Court may sit in divisions of three judges. Some interlocutory and procedural applications may be heard by the President alone or by another judge nominated by the President.

The primary reason for the creation of this court was the large number of outstanding civil & constitutional law appeals from the High Court dating back in some cases to 2008. It was hoped that the new court would eliminate these court delays.

The Court of Appeal will deal with civil appeals from the High Court. It will be possible for the Supreme Court to hear appeals from the Court of Appeal where the issue involved concerns a matter of general public importance or where it is in the interests of justice that the appeal be heard by the Supreme Court. It will also be possible in exceptional circumstances for the Supreme Court to hear appeals directly from the High Court where this is in the public interest or the interest of justice.

The Court of Appeal will deal with criminal cases which were due to be heard by the Court of Criminal Appeal (now abolished). It will hear appeals against conviction and/or sentence from the Central Criminal Court, the Special Criminal Court and the Circuit Court. The appeal is not a rehearing of the case but is based on the transcript of the evidence given at the trial and is usually confined to points of law, or alternatively that the verdict was contrary to the weight of the evidence. On hearing the evidence, the Court of Appeal may exercise a number of options including allowing the appeal and acquitting the defendant or dismissing the appeal.

 

The Supreme Court

Article 34 of Bunreacht na hÉireann (the Irish Constitution) states that the courts system in Ireland will include a Court of Final Appeal. This Court of Final Appeal is known in Ireland as the ‘Supreme Court’. The Supreme Court consists of the Chief Justice and seven ordinary judges. In addition, the President of the High Court is ex officio a member of the Supreme Court. This court is located in Dublin.

The Supreme Court has the power to hear appeals from all decisions of the Court of Appeal, and it may hear an appeal from the Court of Criminal Appeal if that court or the Attorney General certifies that the decision involves a legal point of exceptional public interest. The Supreme Court may also give a ruling on a question of law submitted to it by the Circuit Court.

The Constitution provides that the President of Ireland may refer any Bill (or any provision(s) of a Bill) for adjudication to the Supreme Court, in other words the Supreme Court will decide whether that proposed law is in agreement with, or repugnant to, the Constitution. For this type of case a quorum of five judges will sit, but there will be a single (unanimous) judgment. Once the Supreme Court declares a Bill as being constitutional, that is the end of the matter, and the constitutionality of that Bill can never be challenged again. If the Court declares the Bill unconstitutional, that Bill will have to go back to the Oireachtas to repair the problems that were raised by the Supreme Court.

If a question of the permanent incapacity of the President arises, this is decided by the Supreme Court, again by five judges.

This court is known as the Supreme Court for the simple reason that it is at the top of the hierarchy of courts. It is the court of ‘final resort’.

 

 

Officers of the courts

 

Appointment of Judges and the Independence of the Judiciary

Article 35.1 of the Constitution says that Judges must be appointed by the President. In practice, the President appoints judges on the advice of government, who in turn are guided by the recommendations of the Judicial Appointments Advisory Board.

A qualified barrister or solicitor who has practised as such for not less than ten years is qualified to be appointed as a Judge of the District Court and Circuit Court. As to the appointment to the High Court and Supreme Court, a judge of the Circuit Court of four years standing is qualified for appointment as a judge of the High Court or the Supreme Court.

A judge must be free of any political influence, particularly from the government of the day. Article 34.5.1 of the Constitution sets out the sworn oath to be taken by judges, and includes the well known line “without fear or favour, affection or ill-will”, and this underlines the importance of an independent judiciary. Two further practical elements in the independence of the judges of the High Court and the Supreme Court are the extreme difficulty in removing a judge from office (Article 35.4.1), and the guarantee that their salary cannot be reduced (Article 35.5), which both ensure that judges do not feel in any way obliged to the government of the day.

As long as a judge’s performance in court is bona fide (in good faith), he or she cannot be sued for negligence or defamation. This ensures that a judge will act without fear or favour, and is an important common law principle, which has consistently been upheld by our courts.

 

Barristers

The barrister’s profession is regulated by the Bar Council. The barrister is essentially a courtroom specialist, skilled in the art of advocacy and argument. In addition a barrister is often instructed by a solicitor (“briefed”) to draft pleadings and other complex legal documents. In a big case, a solicitor may gather the evidence, but will brief a barrister to draft the pleadings, give an advice on proofs (i.e. advise on the prospects of success in light of the available evidence) and present the case in court.

 

Solicitors

The solicitor’s profession is regulated by the Law Society of Ireland, which controls entry to the profession, disciplines its members where necessary, and protects the public from unqualified persons.

Solicitors often do legal work not involving litigation or dispute, for example drafting a will or a contract, or conveyancing immovable property. Where there is litigation, the solicitor often does the ground work: research, correspondence, preparation of documentation and collection of evidence, and attends preliminary hearings. Since 1971 a solicitor may appear alone as an advocate in any court in Ireland. However, in practice, the solicitor tends to restrict appearance to the lower courts and employs a barrister to conduct matters in the superior courts and at trials.

 

The Director of Public Prosecutions (“the DPP”)

This office was established by the Prosecution of Offences Act 1974. Although the DPP is a public servant, he or she should be independent of the government of the day in the carrying out of the functions of the office. The role of the DPP is to prosecute serious crimes in the name of the people, which essentially amounts to deciding whether to charge a person or not and if so, with what crime to charge that person.

All decisions to prosecute or not are final once made, and the reasons for the decision are not published (although this has changed to a very limited extent and might be further changed in the future). 

 

The Attorney General (“the AG”)

The office of the AG was created in 1924, and has been preserved by Article 30 of the Constitution. The AG is appointed by the President on the nomination of the Taoiseach, and is linked to that office, to the extent that the AG will resign if the Taoiseach resigns.

The AG is a legal adviser to the government and institutes and defends proceedings to which the State is a party.

 

Useful websites:

 

  1. The Supreme Court (supremecourt.ie)
  2. Courts Service of Ireland (courts.ie)
  3. Office of the Attorney-General (attorneygeneral.ie)
  4. Office of the Director of Public Prosecutions (dppireland.ie/)
  5. The Bar Council of Ireland (barcouncil.ie)
  6. The Law Society of Ireland (lawsociety.ie).

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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9 Responses to How do our courts work?

  1. Gail says:

    Awesome writing – such a readable style to read.

  2. Shane Kennedy says:

    Does justice and “the public interest” come into it ? Almost all of what I have seen in our courts is the misuse of the law, using part of it while ignoring a higher law. In my own case which I brought to the Supreme Court, on my own, and won, the judges refused to answer “what public interest is being served by the County Council’s action”.

    • Hi Shane
      The term “public interest” is perhaps the most abused term in legal history, Ireland being no exception. Public officials often pursue their own agenda whilst claiming to represent the electorate and usually describe these self-rewarding activities as “acting in the public interest”. What is the citation of your case? I would love to read it and continue this conversation.

  3. Pingback: How do our courts work? | ajmarciniak

  4. Puzzled Electron says:

    Would it be worth mentioning the commercial court and its raison d’etre? It would also be good to expand on proceeding categories, which are categorised on the High Court search engine as:
    CA – Circuit court appeals
    CAT – CA transfer from circuit
    CIR – EC Corp insolvency regs
    CLA – Common law application
    COS – Companies act matters
    EEO – European enforcement order
    EXT – Extradition
    FJ – Foreign judgements
    FTE – Foreign tribunal evidence
    IA – Intended action
    JR – Judicial review
    JRP – Prisoner judicial review
    MCA – Miscellaneous common law
    P – Plenary
    PAP – Patents act petition
    PEP – Parliamentary election petition
    PIR – Personal injuries assessment board ruling
    SA – Solicitors matters
    SC – Supreme court appeals
    SSP – Prisoner habeus corpus

  5. Colin Mc Donnell says:

    The language is very accessible and the concepts clearly explained.

    Best of luck with the book

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