Enhancing Our Justice System

Abstract

Enhancing Our Justice System1 Richard Humphreys The need for court hearings within a reasonable time I am glad to have the opportunity to make some purely personal remarks as an individual ordinary judge of the High Court on how justice in our country can be improved. Ireland takes great pride in being a founder member of the Council of Europe and a leading supporter of its international standards. The first sentence of Article 6 of the European Convention on Human Rights provides that: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. There are a great many concepts compressed into that one sentence but I want to focus on just one, the right to a hearing ‘within a reasonable time’. As the adage has it, justice delayed is justice denied. But a hearing within a reasonable time is only possible if there are enough judges, relative to the amount of litigation being undertaken, to allow capacity in the system to deal with all cases and appeals promptly. While the temptation may sometimes be to blame judges and lawyers for all delays in the system, there needs to be a raised awareness of the fact that any given judge or court can only do so much. There is a wider systemic issue: the need for the Oireachtas to provide adequate staffing levels for the court system, both in terms of judicial posts and in terms of support staff. Article 36 of the Constitution provides that the number of judges is set by the Oireachtas and not by the judges themselves. One has to respectfully ask whether Ireland is living up to the requirement of having enough judges to allow all hearings to take place within a reasonable time? Unfortunately I have to suggest not.2 How does Ireland compare internationally? There are at present 163 judges to cover a population of 4.8 million people, or only thirty-four judges per million people. That puts Ireland firmly in the bottom layer of the international league table and rock bottom of the Studies • volume 107 • number 425 52 European league table. We do somewhat better than Ethiopia or Zimbabwe and marginally better than Saudi Arabia, but we are massively behind the developed world. The excellent EU Justice Scoreboard published by the European Commission in April 20173 makes for some thoughtful reading. Ireland does well on some scores, such as the extent to which judgments are published online.4 Our scores are generally poor in terms of the imbalance between incoming new cases and those processed in the course of a calendar year, suggestive of increasing backlogs.5 In terms of first-instance processing of cases, that aspect is a cause for concern insofar as it relates to public law litigation, but in the private law area the issue might require further study as, given that we have a party-led system of civil litigation rather than a judge-led system, it may be that a considerable number of those backlogged cases are being resolved or are withering on the vine without ever coming back to court to be recorded as such. Ireland is unfortunately not represented in other statistical tables seeking to measure length of proceedings, on the grounds that no data was provided. Exact comparisons with civil law systems may be difficult to draw in any event due to the tradition of oral evidence and oral advocacy which contrasts with the more paper-based systems in some continental countries. On the crucial issue of the number of judges per head of population,6 Ireland is not just at the bottom of the league (apart from the UK), but massively so, by some multiples of other EU countries. The European Commission’s laconic comment on their statistical table is that ‘Adequate human resources are essential for the quality of a justice system’.7 The UK is a special case, because ninety per cent of criminal business takes place in the magistrates’ courts,8 which are generally populated by lay persons. In Ireland that...