Michael Healy-Rae (Kerry, Independent) | Oireachtas source

I am grateful for the opportunity to speak on this very important matter.

In 2010 the European Court of Human Rights held in McFarlane v. Ireland that the State was in breach of Articles 6 and 13 of the European Convention on Human Rights as there was no effective remedy for a breach of the constitutional right to reasonable expedition. Article 6 guarantees that hearings must be provided "within a reasonable time", and Article 13 provides for the right to an effective remedy. This Bill provides for the appointment of a delayed proceedings compensation assessor. The assessor must be a former judge, and his or her primary function will be to assess the applications made to him or her and to determine in each case whether there has been a breach of the applicant's rights under Article 6.1 of the convention on the grounds that the proceedings to which the application relates had not been determined within a reasonable time, which brings me to the old saying, "Justice delayed is justice denied." If there has been a breach, compensation will be awarded. Any liability for the breach will attach to the State and not to any judge or court.

The background to the origins of this Bill comes as legal cases are extensively delayed before being heard in a court in Ireland. The Government has recently found itself in extremely hot water in Europe over delays to court trials and has been forced to introduce this legislation and compensation mechanism to crack down on the massive delays in court proceedings. We see this happening every day when an event happens and it takes literally years and years for the situation to come before a court. The Council of Europe is monitoring the Government as to how the problem is being dealt with, and Ireland is now required to submit an action plan and to take measures to resolve breaches identified by the European Court of Human Rights. The situation of delayed cases is now so bad here that in some cases people due to face criminal trial in Irish courts, some of whom could possibly be not guilty of the offences with which they are charged, have been waiting 24 months for an opening date. I ask the House to think about that. It is one thing if a person is guilty, but what if a person is innocent and is waiting and waiting and waiting?

It affects their lives and those of their families and friends, causing upset and trauma. They may be found innocent after all the time waiting. They are being robbed of all the months and years. I have referred over and over to the choice between money and time. Money is something that people can have or not have but time is not a luxury. We are allotted only so much of it. It is concerning to think that people are being robbed of their time by being denied the right to get into a court and have their cases heard, regardless of the outcome. It is particularly on behalf of those who could be found innocent that I am most anxious to state justice delayed is definitely justice denied.

The current waiting time for some murder and rape cases is up to 24 months. The Minister for Justice, Deputy Harris, recently announced, to much fanfare, that 24 new judges are to be appointed this year, with a further 20 likely to follow in 2024, which numbers combined would increase the total number of judges in Ireland from 173 to 217. That is to be very warmly welcomed because the Judiciary is so understaffed that it is causing a breakdown in the whole system. The sooner the increase is made, the better. I look forward to an announcement in the coming weeks in this regard.

Alongside increasing the number of judges, and very much under the radar or at least with much less fanfare, the Cabinet approved the Court Proceedings (Delays) Bill, which will legislate to allow compensation in cases where people experience undue delays in the justice system. This new compensation scheme, which could cost the ordinary taxpayer millions of euro, is being set up due to outright Government failure. It is yet another example of this Government's glaring incompetence around everything it is supposed to be doing. If it were more inclined to do what it is supposed to do and not what it is not supposed to do, we would have a better country today.

We understand that, on 2 March, the Irish Government submitted its latest action plan on how it is handling delays in both civil and criminal proceedings before the domestic courts, including in respect of how the State plans to legislate to provide more rights for defendants who experience undue delay in accessing justice. In the submission of 2 March, and as reported in thejournal.ie, the Government acknowledged how, at the most recent Council of Ministers meeting, in September 2022, the Council reiterated its concern that the authorities, namely the Irish Government, had not yet established an effective remedy in this regard, although it also noted measures taken by Ireland to tackle the issue of delays to date.

Consider the delays in the new Court Proceedings (Delays) Bill, which was initiated as a direct response to the 2010 judgment in the McFarlane v. Ireland case. In that case, the State alleged that Brendan "Bik" McFarlane was involved in an IRA kidnapping in 1983. He did not go on trial for that alleged crime until 2008. In taking his case to the European Court of Human Rights, McFarlane alleged there were unjustified delays in the criminal proceedings brought against him. He argued that the delay of between ten and 22 years, depending on the account of the Irish authorities, violated the reasonable-time requirement. The European court found there had been violations of Article 13, on the right to an effective remedy, and of Article 6, on the right to a fair trial within a reasonable time, of the European Convention on Human Rights. Mr. McFarlane was awarded €5,500 in damages and €10,000 in costs and expenses. He had been acquitted of the charges in 2006.

The Council of Europe monitors compliance with European Court of Human Rights judgments, and while the issue is not seen as an EU infringement matter, in 2017 the Council transferred the McFarlane case such that it became an "enhanced procedure", meaning the Government is now in the embarrassing position of having to be supervised by the Committee of Ministers in its efforts to find a solution. In other words, it is being babysat.

The Court Proceedings (Delays) Bill creates a statutory right to a conclusion of proceedings within a reasonable time. It also provides for the establishment of an independent assessment process, under the aegis of the Department of Justice, to assess claims on the breach of the right to justice within a reasonable timeframe. A defendant involved in a criminal case can make an application for an assessment in respect to proceedings that have not yet concluded or that have been concluded within the previous six months. In other court cases, the plaintiff, defendant, applicant or respondent may also make an application. Under this Bill, successful applicants could be entitled to a declaration that their rights have been breached. They may also be awarded financial compensation for the delay in justice they have experienced.

We understand that any award of damages will be limited to the maximum awarded by the Strasbourg court, rather than having the Minister for Justice set limits on damages. In determining whether there has been a breach of rights, a number of factors will be taken into account, such as the duration of the delay; the complexity of the relevant proceedings; the issues at stake for each of the parties and the likely effect on the parties of the delay in the conclusion of the proceedings; the conduct of the applicant and any other party throughout the proceedings; the steps previously taken, if any, by the applicant to expedite the proceedings; the principles and practices laid down by the European Court of Human Rights and any relevant decisions of the Supreme Court, High Court or Court of Appeal; and any other matter which in the view of the assessor is relevant to the claim.

In its submission to the EU on this matter earlier this year, the Government drew the committee's attention to the judgment of the Court of Appeal in O'Callaghan v. Ireland and the Attorney General in 2020, stating it has demonstrated that, in some cases, compensation for delayed trials is already being paid out.

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