Tuesday 20 November 2018

Chief Justice courts controversy by intervening in appeals referendum

Mrs Justice Susan Denham at Limerick Circuit Court yesterday.
Mrs Justice Susan Denham at Limerick Circuit Court yesterday.

Shane Phelan Public Affairs Editor

THE Chief Justice has intervened in the Court of Appeal referendum, describing the current system as "indefensible and unsustainable".

In a speech, Mrs Justice Susan Denham said the poll was an invitation for citizens to enable the superior courts to work better and help get rid of the current four-and-a-half-year backlog in cases being heard by the Supreme Court.

Some observers said it was unusual for a speech of this kind to be made so close to polling day, while a prominent opponent of the referendum said the Chief Justice had "stepped across the line" into the political debate.

The referendum takes place next Friday on the same day that voters will decide on the future of the Seanad.

It proposes the creation of a new Court of Appeal, which would greatly lessen the caseload of the Supreme Court and allow it to concentrate more on cases of national importance.

Mrs Justice Denham did not consult the Referendum Commission before drafting the speech, which was delivered at the opening of new court offices in Limerick yesterday.

She said it was not her intention to intervene in how people will vote, given the separation of powers between the judiciary and the legislature.

However, it was incumbent on her to "set out the context" within which people will make their decision.


She said the Supreme Court was one of the busiest of its kind in the world and that if its workload remained as heavy as it is there would be untold costs for society and the economy.

"Many cases heard by the Supreme Court at present, while of importance to the individual litigants, do not raise important questions of law and constitutional law, nor do they involve a matter of general public importance," she said.

"If we have a Court of Appeal, it would hear the routine appeal cases and the Supreme Court could focus exclusively on cases which raise matters of general public importance or where it is in the interests of justice to be heard by the Supreme Court."

However, the timing of the comments was criticised by one of the most prominent opponents of the referendum, retired solicitor and author Michael Williams.

"I'm very sorry this has happened, because I respect our Chief Justice and think well of her," he said. "She says she is not going to advocate any position, but as I read her speech its overall effect does just that. It seems to me that she has stepped into the political debate."

Mr Williams, author of 'Serving The People? The Need For Reform in the Irish Legal System', added: "If the referendum is lost, all that is damaged is her standing. If it is carried and somebody wants to challenge it, I think they could make the case that the result was affected by improper influence by the Chief Justice."

Mr Williams has argued that more wide-ranging reform, rather than a new layer of judges, is needed.


A week out from polling, the referendum is expected to easily pass, with Fianna Fail leader Micheal Martin saying yesterday that politicians detected no resistance to it on the doorsteps.

In her speech yesterday the Chief Justice said that in 2012 there was a 21pc increase in the number of appeals filed in the Supreme Court, with 605 new cases. Already this year, there have been over 400 cases appealed to the Supreme Court.

"Such numbers have caused delays in the Supreme Court of a magnitude which are a real difficulty at present, with cases waiting four-and-a-half years for a hearing," she said.

Judge Denham quoted from new research which indicates the Supreme Court is now 10 times busier than in 1937 when the Constitution was drawn up.

The Court of Criminal Appeal is seven times busier.

Mrs Justice Denham added: "This is an indefensible and unsustainable situation. Times have changed radically since 1937. Behind all of the statistics there are human stories of people with real legal difficulties waiting to be resolved."

Irish Independent

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