Peter Fitzpatrick (Louth, Fine Gael) | Oireachtas source

The Thirty-third Amendment of the Constitution (Court of Appeal) Bill provides for the establishment of a new court of appeal, for which a referendum is required. If the proposal is accepted by the people, the new court will hear appeals from the High Court, while the Supreme Court will hear cases, on appeal, from the court of appeal and, in exceptional circumstances from the High Court. The Bill does not specify the number of judges who will sit on the new court, their remuneration, age of retirement or pension provision. These matters will be set out in subsequent legislation.

The superior courts in this country currently comprise the High Court, the Court of Criminal Appeal and the Supreme Court. The High Court is the superior court of first instance and is invested, under the Constitution, with full original jurisdiction in and power to determine all matters and questions, whether of law or facts, civil or criminal. The original jurisdiction of a court is the right to hear a case for the first time. Appellate jurisdiction, on the other hand, refers to the right of a court to review the decisions of a lower-level court. The Court of Criminal Appeal is not mentioned in the Constitution and was instead established by way of statute. It is the only intermediate appellate court in the State. The Supreme Court is the court of final appeal. It operates mainly as an appellate court and its original jurisdiction in respect of cases not heard before another court is extremely limited.

Under the Constitution there are three fundamental organs of the State, namely, the Legislature, the Executive and the courts. The role of the latter is to administer justice. Factors affecting the operation of the courts include population growth in the State and the nature of modern litigation, including an increase in the number and complexity of cases. Ireland is currently out of line with other common law countries in so far as all appeals from the High Court are heard by the Supreme Court. Other countries, including the United Kingdom, Australia, New Zealand and Canada, have a court of appeal which hears appeals from the equivalent of the High Court, with only the more important cases, including those relating to the development of law, being heard by the equivalent of the Supreme Court.

This means that in countries far larger than Ireland, such as the United Kingdom and the United States, the supreme courts deal with proportionately far fewer cases than does our Supreme Court. Over the past 40 years there has been a sixfold increase in the number of High Court judges, but the membership of the Supreme Court has merely doubled. As a result, a rising number of increasingly complex cases are being appealed into the bottleneck that the Supreme Court has become. There is now a four-year backlog of cases before the court. This prompted the Chief Justice to announce earlier this year that the court could not admit any new cases to its priority list.

On the day the court of appeal is established, the Supreme Court will retain within its jurisdiction all appeals lodged prior to that date. A new Article 64 is being inserted into the Constitution setting out how this caseload will be dealt with. This article will appear in texts of the Constitution published one year after the establishment of the new court. Cases that have been part heard or fully heard by the Supreme Court will be determined by that court. The Chief Justice may, with the agreement of her colleagues, transfer classes of cases to the court of appeal for hearing and determination by that court. In addition, parties to an appeal may apply to the Supreme Court to have their case transferred to the new court. Appeals from the Court of Criminal Appeal will be dealt with by the Supreme Court in accordance with the rules applying to such appeals before the court of appeals is established.

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