Michael McDowell (Dublin South East, Progressive Democrats)

As I said, that is the case for geographical transfers. If it were a case of "out of the frying pan into the fire" with, for example, a case going from a court with no delay to one with a substantial delay, the first court should make the inquiry as to whether it is in the interests of justice and whether an early trial is likely to occur if the decision is made. The court would ask the parties to the case whether they are satisfied that if the case were transferred it would result in an earlier trial or whatever the point at issue might be. When given this function of not making an order unless it is in the interests of justice to do so, the members of the Judiciary would make precisely this kind of inquiry of the person requesting the change. Presumably in an adversarial system such as ours, if the Director of Public Prosecutions requested a transfer, the accused person could point to the likelihood of only getting a trial in six months' time instead of the following week. If the court asked counsel for the Director of Public Prosecutions and was advised this would be so, in all probability it would not be in the interests of justice to transfer it to the second court unless some radically different supervening reason could justify such a delay.

This provision is not unconventional. Where we provide for a transfer of a case from one court to another, the application and all the interests of justice issues are addressed in the first court and the second court is presumed to pay respect to the decision of the first court. If the decision were made improperly as a matter of law, while judicial review would be an option, an internal mechanism of appeal as of right is not provided in these cases as some certainty is needed. We cannot have cases lodged in some form of hyperspace between two courts.

See this speech in context