Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

In the past year, the Minister of State has brought forward several items of legislation, much of it to do with issues where we have a gun to our heads, such as, for example, where fines are likely to be imposed or where we have not done things in a timely way. To the Minister of State's credit, he has been trying to clear the backlog. This also falls into that category in that there is outside pressure to deal with a matter we should be dealing with ourselves, and it goes back a long time.

This should be an initiative of last resort. It is about the failures of justice in our system. If there is a raft of claims, it will be viewed as a continuing failure of the system. Is it getting to the core of the problem? Real success in this would be if we did not have a raft of claims. That is how this should be judged. Is such a system used in other jurisdictions? Has any modelling been done on how such a system has worked in other jurisdictions? I would like to see the evidence. What budget will compensation claims be paid from? Consequences change behaviour, but if it does not have an impact in the right place, the remedy will be in theory but not in practice and the public purse will become a bottomless pit. I have concerns about there being a consequence in the place the delay is happening. If a delay is due to such issues as a lack of resourcing then it is correct that it should fall on the Department of Justice. What assessment has been done of the delays in the justice system and where are they occurring? If such an assessment has been done, is there a plan to remedy the shortcomings? The Minister of State probably has a wallchart relating to some of the legislation he previously brought forward to clear the backlog. Is there also a wallchart to show where the issues are arising?

Our population has grown from 3.6 million to well over 5 million in the past 25 years, but our systems and services have not grown at the same pace. Many of the services are stretched and our society has also changed considerably in that time. The Court Proceedings (Delays) Bill 2023 proposes to increase the number of sitting judges in the Court of Appeal, the High Court, the Circuit Court and the District Court. This did not happen because we did an assessment of how things were going. It followed criticism, including from outside sources, in the context of why this Bill is being brought forward. As recently as March, the Office of the Director of Public Prosecutions warned that its current level of funding is not sufficient for it to effectively deliver a modern prosecution service. As a result of the lack of funding, it says there is a risk to its reputation and a significant risk that criminal cases may not be prosecuted effectively. That is what I mean when I say we must look for the root cause of the problem and why there might be delays.

The helpful digest on this Bill has the following striking quote:

On the concept of delay in court proceedings, the Supreme Court in the recent case O’Callaghan v Ireland concluded that: “Delay can deny even a just judgment of its value. There is a societal interest involved. If people believe that courts cannot vindicate their rights, then they will come to distrust the law itself, and the system within which the rule of law operates [...] What is in issue is not simply an aspirational precept: it is a fundamental principle necessary for the upholding of the letter and the spirit of the Constitution.”

It has been known that we have had a problem for a long time because we get routine updates on how long it is taking for particular court cases to happen. I will quote the Bill digest again as follows:

It is well-established in Irish law that a person whose constitutional rights have been infringed can, in principle, sue for breach of those rights and obtain damages, including damages for breach of the constitutional right to a speedy trial. However [and there is usually a "however" in a system that does not function as it should], in practice such an award has rarely been granted in the context of undue delay (see the comments of Judge O’Leary in Keaney v Ireland discussed below, where the ECHR noted that the “scope of a damages action, the circumstances in which a complainant is likely to recover damages following delay and questions of quantum all remain unclearand in need of development through practice and case-law.”)

That mentions case law but we have not chosen the route of going through the courts; we have chosen a different model, which I will come to shortly.

Those who face a criminal trial in this country are presumed innocent until they are found guilty. In the case of murder and rape, two of the most serious offences, it is taking more than two years to bring cases to court and that might not even be to prosecute the case; it might just be to decide on the timelines for it. Increasing the number of judges by 24 this year and by a further 20 next year will hopefully reduce some of those delays. As a young adult, I recall a situation of someone being murdered and there was consternation and shock about it and there was talk about it for about a week. Now you would struggle, even within the last month, to know how many people have been murdered. There is a big difference and we need to get to a situation where we address why our society is becoming so violent because that is part of this process.

I could say the same about rape; there is a huge under-reporting of this serious offence. I mention the Central Statistics Office's sexual violence survey and some of its key findings include that four times more women than men reported experiencing non-consensual sexual intercourse over their lifetimes. It is even disproportionate in who reports, therefore. The lack of statistics available to the courts is a real problem as well, and this is part of the problem with how our system is working. We have two significant gaps in information that demonstrate a prevalence of sexual violence versus the under-reporting.

I will quote from an article in the Irish Examineras follows:

Dr Siobhán O’Higgins, of University of Galway’s School of Psychology, said victims may not want to go through the reporting process and be retraumatised.

People may be hesitant to report incidents due to lack of knowledge of reporting structures, handling the incident informally or not thinking they will be believed, she said...

People are very wary of engaging in legal services and things like that and it’s fearful. Why would you want to do that if you’re getting the support to deal with the trauma you’re suffering and working through that yourself, which is a huge process?”

Imagine reporting that and then ending up waiting two years for a case to even come up for a date. You cannot get on with your life if that is the case. The length of time these cases are taking is problematic, and these are some of the most serious cases.

An action plan was provided following the efforts of the European Court of Human Rights and this Bill is part of that action plan. However, it most definitely does not substitute for a properly functioning justice system. We know the McFarlane v.Ireland judgment in 2010 related to a kidnapping offence in 1983. The origin of the delay in this case was due to the loss of fingerprint evidence. Mr. McFarlane was acquitted of the offences in 2006 and he argued that the time delay violated the reasonable time requirement. The European Court of Human Rights found that those were violations of the European Convention on Human Rights under Article 13, the right to an effective remedy, and Article 6, the right to a fair trial within a reasonable time. Mr. McFarlane was awarded damages and costs totalling €15,500.

In 2020, the Committee of Ministers called on Ireland to provide an updated plan setting out the proposed remedies and relevant timeframes for their implementation. In September 2022 the committee noted that it remains a matter of "profound concern" that the remedy had not yet been established. The McFarlane case has been pending before the committee for 12 years and almost 19 years have passed since this problem was first identified by the court. Previous legislative initiatives have failed and the authorities must act diligently and continue to give the necessary priority to the legislative process to ensure that an effective remedy is established and accessible without any further delay. It is another example of us not being good Europeans and it is an example of having to be told from the outside that there is a significant failure.

At this time the Committee of Ministers invited Ireland to again provide updated information on the issue and in March 2023 Ireland submitted a revised action plan outlining the progress that had been made thus far and the proposed remedies, with particular emphasis placed on the provisions of this Bill. My concern is that this Bill is part of a tick-box exercise, rather than a detailed consideration of where the system is failing and how that should be addressed, including resourcing where shortcomings are found. We have made an industry out of causing problems, not just in the criminal justice area but as a country, and then resolving those problems without having a plan of action to deal with structural and resourcing weaknesses to avoid causing a crisis in the first place. We pay for it anyway. In some cases we pay a financial cost and a reputational cost and the intangible cost that goes with undermining our justice system, as in this case, is yet another price that is paid. Then there are the individual prices that are paid by people who are not being prosecuted in a timely way and by people who are victims of crime.

I am also not sure how this Bill deals with the victims of crime, who are equally failed by the system. We are told that the action plan which was provided to the Committee of Ministers was detailed and that this legislation was part of that plan. We cannot all be members of every Oireachtas committee and I do not know how much of that information has been shared with the justice committee or if that detailed information is available but I would find it useful to see what the shortcomings are and what remedies the Government has for dealing with some of those shortcomings. We know it included increasing the number of judges but what else did it include? What research was done into the causes of the delays? Are there shortcomings in how we capture information? I mention one of the things I quoted earlier about rape. I asked a parliamentary question and I got a response that:

At this time, the system in use by the Courts Service in the Circuit Courts [and Central Criminal Court where these cases would be heard] is ("ICMS") a Lotus Notes database and cannot produce reports for specific offences.

That tells me something about how we are capturing information. If we do not capture information in a way that is usable, then we are not going to be able to put the appropriate resources where those resources are required. I have serious concerns about inadequacy, even in terms of how we are capturing information. What else did this detailed plan provide? The Minister of State might address what research was done into the cause of delays and how extensive that research was.

We know that in the McFarlane case, the origin of the problem was the loss of fingerprint evidence. Is the Minister of State satisfied about the arrangements that are now in place to secure fingerprint and DNA evidence? I know there have been some improvements, but are we satisfied that that is sufficient? Was there a review done following the McFarlane case about the shortcomings? What do we do in situations when there are shortcomings?

As Deputies, we get constituents coming to us about all sorts of things. I want to use two cases as examples, both of which relate to traffic offences - one in Dublin and one in Kildare. The first one relates to an individual who was happy to accept the offence was committed and to accept the sanction of the court. This individual had the benefit of being granted legal aid, but turned up to court on six or seven different occasions without the case being heard. It was rescheduled for another date. The second case involved two parties, both of whom were willing to settle, but the Office of the Director of Public Prosecutions, DPP, was not ready and there was a delay in the Garda giving the DPP some information. One of the individuals had taken eight days' annual leave, so there was a kind of a double sanction, as it were. We have to ask if that is a good use of the court's time. Both individuals I talked to are stressed about the issue. It seems to me that it shows a failing in how the court's time is managed. That may well be to do with inadequate court staffing levels, but it is also wasteful of the time of those involved, for example, in the legal aid system, which we know is under pressure. All of that needs to be part of this.

This Bill relates to civil as well as criminal trials. Indeed, if we look as civil issues such as breaches of planning law, which are very often serious breaches, local authorities may be considering if they can afford the staff time involved in taking cases, even after they have issued enforcement proceedings. I believe many breaches go unpunished for this reason, and it completely undermines the statutory role of our planning authorities. The more non-compliant breaches go unpunished, the more our system of planning is undermined. The courts themselves have a reduced tolerance for plaintiffs who delay progressing their claims. Pentony and Edward Murray considered this in an article in 2022, stating: "There is a recent trend in some types of litigation (including civil and commercial litigation) in which the courts are becoming less tolerant of plaintiffs who fail and/or delay in progressing their claims. Multiple cases from 2021 indicate that, if a plaintiff engages in delay and/or does not progress their claim for two years or more, the courts are amenable to dismissing the proceedings on grounds of such delay." The Supreme Court established a three-step test in 1996. First, the court should consider whether the delay in question is inordinate. If the delay is inordinate, then the court should consider whether the inordinate delay is inexcusable. If the delay is both inordinate and inexcusable, the court should then consider whether the balance of justice favours the dismissal of the proceedings. I refer to the article because we can see the courts themselves have concerns with delays. We can see that a clear test has been established for civil and commercial cases.

This Bill proposes an independent assessor model for deciding claims relating to excessive delays in court proceedings, as opposed to the court making that decision. Deputy Costello made this point. This was decided following a regulatory impact analysis that favoured the assessor model. Will the Minister of State outline how such a model will work in practice? Will a permanent office be set up? Has the regulatory impact assessment been published? Is this something that we are going to be outsourcing? Is it going to be a permanent office? It is very difficult to know. I would like to be satisfied about why the decision was made.

It seems to me that we are often obliged to pay for failure because we have not planned, or we have not resourced systems to run smoothly. Just this week, we heard the Garda Commissioner say that he had sufficient resources. What else would he say? On the other side, we heard from the representative from the Association of Garda Sergeants and Inspectors about the inadequacy of training and resources, particularly where there is a conflict on both sides of a protest, which is closer to what the man and woman in the street believe to be the case. It is really important that we look at this in its totality, and not see this Bill as the solution on its own. There is a myriad of other things that need to be done. I would like to hear about the range and detail of the analysis.

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