The Courts of Ireland – take 2

judge asleep

Many thanks indeed for the loads of helpful comments and suggestions to the first draft of a chapter I am writing which seeks to introduce the Irish legal system to people who know little or nothing about Irish law.

I have done my best to implement most of the suggestions. Some of the suggestions asking for more detail on particular topics could not be fully accommodated as this is simply an introductory chapter. It would not do if the chapter was two hundred pages and took up half the book!

I enclose the second draft. Again, comments and suggestions would be most welcome.

 

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, the word ‘hierarchy’ means 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.

This hierarchy is very important to understand when you are comparing judgments of two different courts and they disagree with each other. The position of the court on the “pecking order” will usually determine which judgment you must follow.

There is a more detailed diagram later on in this chapter but the basic hierarchy of Irish courts from top to bottom is: Supreme Court – Court of Appeal –  High Court – Circuit Court – District Court.

 

Precedents

Previous decisions (judgments) of the superior courts (High Court; Court of Appeal; Supreme Court) 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. This is a crucial concept in our system of law, which is a common law system where our law comes from many different sources, as opposed to a codified system where everything must be written down before it becomes law.

 

Bind a court

Where a court must follow a previous decision or precedent, even if it does not agree with that decision. Lower courts are therefore ‘bound’ by the decisions of superior courts. Sometimes judges in lower courts might have a little grouse when they have to follow a judgment they do not like, but follow it they must.

 

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”. This is very important, as there are no “draws”: if the party bearing the burden of proof fails to win their case, they must lose.

Again this is an important concept to understand, and one that can cause confusion. Very often people cannot understand how they lost because their case seemed no worse than their opponent’s case. That is the whole point: if you bring a case to court, your case must be better than your opponent’s, or else you will lose. The same is not good enough.

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. These are found mostly in Europe, France being a well-known example.

 

 Pleadings

Formal written or printed statements delivered by litigating parties to each other, stating the allegations of fact (and sometimes their legal arguments as well) 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 have had time to prepare a reply.

This notion of not being allowed to catch your opponent by surprise is more important in an adversarial system, where the court is not investigating, but only officiating (“refereeing”), and finally declaring a winner.

 

 Injunction

An order of the court directing a party to an action to do something (mandatory injunction) or refrain from doing something (prohibitory injunction). So for example you might get a mandatory injunction against your neighbour to replace soil he has removed along your boundary, causing it to collapse. On the other hand, you might get a prohibitory injunction against your neighbour if he tries to build something which juts onto your land. Hopefully neither of these are good examples, as you should always get on with your neighbour!

 

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.

As mentioned above, in an adversarial system where there has to be a winner and a loser, the burden of proof will determine the winner when the two sides seem to be evenly matched.

 

Indictable

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

We do not have plea bargaining in Ireland but it might happen that a person can agree to plead guilty to a summary offence with a lighter sentence as this saves the State the time and expense of a jury trial.

 

 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, Gilligan v. Ireland [2013] 2 IR 745 involves the famous case of John Gilligan against Ireland. The State was represented by the Attorney General, the Minister for Justice, Equality and Defence and the Governor of Portlaoise Prison. The citation tells you that you can find the case on page 745 of the second volume of the 2013 Irish Law Reports (I.R.), as opposed to the Irish Law Reports Monthly (I.L.R.M.). You could also find this case on the internet using its electronic citation: [2013] IESC 45 (which stands for Irish Electronic Supreme Court).

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, and perhaps the name of the judge.

 

Bar

In systems that distinguish between barristers and solicitors, the Bar generally refers to the professional collection of barristers. Many countries use the expression “Side-Bar” to refer to the professional collection of solicitors, but this does not seem to be the case in Ireland.

 

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. This is called “territorial jurisdiction”, and it is this type of jurisdiction that most people know.

There are however other types of jurisdiction. Substantive jurisdiction refers to the particular types of case that a court is entitled to deal with. 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. There are also specialised courts within these civil and criminal jurisdictions. For example, the Commercial Court is really a division of the High Court, but deals with the following types of cases:

  • Disputes of a commercial nature between commercial bodies where the value of the claim is at least €1 million;
  • Proceedings under the Arbitration Act 2010 with a value of at least €1 million;
  • Disputes concerning intellectual property;
  • Appeals from or applications for judicial review of regulatory decisions;
  • Proceedings in connection with any function of the Registrar under the Cape Town Convention or the Aircraft Protocol as defined in the International Interests in Mobile Equipment (Cape Town Convention) Act 2005;
  • Other cases a judge of the Commercial Court considers appropriate (which have included judicial review of planning permission decisions, for example).

There is also a type of jurisdiction that can best be described as “quantum jurisdiction” and this is where certain civil courts are limited from hearing cases above a certain money value and certain criminal courts from hearing certain cases or from sentencing above a certain number of years and/or the amount of a fine.

For example, the different civil courts can hear cases for compensation of certain amounts. These are:

  • in the District Court claims up to €15,000;
  • in the Circuit Court claims between €15,000 and €75,000;
  • in the High Court claims above €75,000.

Similarly, in our criminal law, for example, the following types and categories of offences must be heard by the Central Criminal Court (which is the High Court with its criminal law hat on) sitting with a judge and jury:

  • Treason;
  • encouragement or concealing knowledge of treason;
  • offences relating to the obstruction of government and obstruction of the President;
  • murder, attempted murder, conspiracy to murder;
  • piracy (the fellow with the peg leg and the parrot on his shoulder, as opposed to illegally downloading movies);
  • offences under the Genocide Act, 1973;
  • rape, aggravated sexual assault and attempted aggravated sexual assault under the Criminal Law (Rape) (Amendment) Act, 1990.

 

A court of law must be distinguished from other tribunals

Article 34.1 of the Constitution provides that “justice” cannot be administered in any place other than a court which has been established in accordance with the Constitution, presided over by a properly appointed judge. However, Article 37.1 also authorises persons other than judges or courts to exercise “limited” functions and powers of a judicial nature, except in criminal matters.

It is therefore very important to determine what is meant by Article 34.1 read with Article 37.1. So where a person or tribunal other than a duly appointed judge engages in the administration of justice, does that person or tribunal act in violation of the Constitution, and are their decisions invalid? The quick answer is yes they will be, unless these powers and decisions are “limited” in the sense envisaged by Article 37.1. In other words, are those powers being exercised contrary to Article 34.1, and if so, are they saved by Article 37.1?

The question is also important because it determines what issues are capable of being dealt with by the courts, what are called justiciable matters, and those which are not, which can be described as non-justiciable matters.

This is a tricky question which is difficult to answer conclusively as each case will need to be looked at on its own before deciding. However, in the case of McDonald v Bord na gCon (No 2) [1965] IR 217, the following five characteristics of an administration of justice within the meaning of Article 34.1 were listed:

  1. A dispute or controversy as to the existence of legal rights or a violation of the law.
  2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty.
  3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties.
  4. The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgement.
  5. The making of an order by the court which as a matter of history is an order characteristic of the courts in this country.

This list is a useful, although not definitive, guide as to what constitutes a justiciable dispute or what constitutes an exercise of judicial power, as opposed to a purely administrative power.

 

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 a defendant (“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.

 

The Organisation of the Courts

courts 

 From: The Irish Courts System – courtesy of the The Courts Service

 

The District Court

The District Court consists of a President and sixty three ordinary judges. For legal purposes Ireland is divided into twenty four districts with one or more judges permanently assigned to each district and the Dublin Metropolitan District. In criminal law the venue of a District Court case usually depends on where an offence was committed or where the defendant was arrested. In civil law the venue will depend on things like where the contract was created or where the defendant resides or carries on business.

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. It is also restricted to hearing cases where the damages or compensation sought do not exceed a certain amount (at the moment up to €15,000), 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 (between €15,000 – €75,000 at the moment).

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:

a) prohibition, to prevent a person or body from exercising a power it does not legally have;

b) mandamus, to compel a person or body to carry out a legal duty;

c) certiorari, to investigate or challenge a person or body who has exceeded their legal powers;

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’.

 

Referral to the European Court of Justice (ECJ)

All domestic courts, from the lowest to the highest, are empowered by the EU treaties to refer points of EU law to the ECJ. A referral means that the court is asking for advice which it is not obliged to follow, but usually does as long as it does not offend our own Constitution. All Irish courts except the Special Criminal Court have referred matters to the ECJ. The majority of cases referred to the ECJ are civil claims originating in the High Court.

In terms of EU law, there are also instances when an Irish court must refer a matter to the ECJ. This is when a court or tribunal can make a decision ‘against which there is no judicial remedy under national law’. In other words, that decision cannot be challenged in terms of Irish law, but can be challenged under EU law. In this situation the Irish court must refer a point of EU law that is raised by the case before them to the ECJ.

The ECJ has made it clear that this does not just mean the Supreme Court (against which there is no appeal as it is at the top if the hierarchy) but any court or tribunal whose decision cannot be appealed.

It is important to realise that a judgment of the ECJ is not binding on our domestic courts, although they might follow it (it is persuasive). Rather, a judgment of the ECJ is binding on the Republic of Ireland as an EU Member State, and therefore the government of the day must take steps to ensure that a judgment of the ECJ is implemented and followed. This is usually done through legislation.

 

Judicial review

Judicial review should be distinguished from an appeal. An appeal on a point of law concerns the issue involved in the lower court’s decision, which lawyers describe as “the merits”. In other words you can appeal a decision that you think is wrong.

Judicial review, on the other hand, is concerned with the authority of the lower court or tribunal to enter into an adjudication in the first place (its jurisdiction) or the procedures followed by it in the course of the adjudication.

Put simply, judicial review involves determining whether the court or tribunal acted intra vires (within its powers) or ultra vires (in excess of, or outside, its powers) and whether it complied with the basic rules of natural justice and fair procedures. In particular it must be unbiased (nemo judex in causa sua – nobody may be a judge in his own court) and give all sides involved in the matter the chance to properly prepare their case and to be afforded an even-handed hearing allowing them to properly present their case (audi alteram partem – let the other side be heard).

In essence therefore where an appeal is looking at the substance of a decision and deciding on the merits whether that decision is right or wrong, a review is more interested in how that decision was reached.

The application for judicial review is in two stages. The first stage involves an ex parte application (where the applicant is on their own, their opponent is not notified) to a High Court judge for leave to proceed. Here the applicant is only allowed to set out the grounds on which relief is being sought. This application is granted if the judge considers that the case discloses some ground for claiming relief, although no decision on the merits will be made at that stage. The applicant must then serve notice on the other party, the respondent. The respondent now has an opportunity to challenge the applicant’s case.

The second stage is the application for judicial review itself, where the court determines whether the order sought by the applicant should be granted. The court may grant other remedies, such as an award of damages.

In particular, a reviewing court can grant what are known as prerogative writs, which consist of the orders of Mandamus, prohibition and certiorari. A writ of Mandamus orders a particular person or a  court to carry out a specific function. Prohibition is the reverse of that where a particular person or court is prohibited from carrying out a specific function. Certiorari is an order that requires an issue to be transferred to the court for an order to be reviewed by that court and if necessary to be quashed if, for example, the order was made ultra vires the powers of that court.

The other order which is generally described as a prerogative writ (although in Ireland it is specifically mentioned and guaranteed in the Constitution and therefore has a unique quality) is the writ of habeus corpus (“present the body” or “deliver the body”) which if granted will secure the release of a person who is wrongfully detained.

 

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.

It is possible for barristers or solicitors to be appointed directly to the High Court and even the Supreme Court. So for example, a barrister or solicitor of not less than twelve years’ standing who has practised for a continuous period of not less than two years before such appointment can be appointed directly to the Supreme Court.

The whole basis of any democratic system is that the courts must be able to stop the government from breaking the law or undermining the Constitution.  What this means is that a judge must be free of any political influence or duress, 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, and do not need to fear for their jobs if they oppose the government.

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.
This entry was posted in Academic Research; Peer-Review Process; Medical Journals, EirGrid; Insurance; Law; Cancer; EMF, High Court; Judge Caroline Costello; John Callaghan; Leave to Appeal, High Court; Judicial Review; Appeal on the merits; judicial discretion, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Law; High Court; Leave To Appeal; Environment, Legal Costs; Access to Justice; Courts, Peremptory law; Directory Law; Planning and Devlopment Act of 2000 and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s