James Lawless (Kildare North, Fianna Fail) | Oireachtas source

The phrase, "justice delayed is justice denied", is often said. I think I heard it in this and in previous debates on the Bill. This arises from the McFarlane decision, which I think dates back to 2010, although the decision was also perhaps spoken about in previous rounds of appeals. On the positive, before getting into the legislation and the new scheme the Minister is bringing forward, which I welcome, it should be recognised that the McFarlane decision does not sit in a vacuum and has not been ignored. It creates a common law precedent which is in practice and followed before the courts and has been for more than a decade. The duty on the prosecution to seek out or preserve evidence is recognised and enshrined in the McFarlane decision. A situation should never again arise in which evidence is gathered in the course of an investigation and detection, be that a vehicle, fingerprints, CCTV footage, a still, a piece of real evidence such as a handwriting sample or a DNA sample, that is then not available to either the defence to vindicate the innocence of the accused or to the prosecution to put beyond doubt in the mind of a judge and-or a jury that the person is guilty of the crime charged. It concerns a piece of evidence so critical and important it could decide the case and is allowed to be lost, destroyed or taken away from the system that appears to be an egregious breach of fair procedures on every side, not least for the accused but also, in some cases, for the prosecution and in the interest of justice, which is what we are all supposed to serve when considering these matters. That is already being practised before the courts and has been for many years because it had an immediate effect when that ruling came into play.

The civil system is somewhat different, as previous speakers spoke said. In a civil system, a party makes a conscious decision to initiate litigation if they are the plaintiff or, on the other side, they are the defendant if they are being sued. If private parties meet in court or across a court, they control the narrative and pace to an extent. If one party chooses, neglects or fails to prosecute their case with sufficient vigour and speed, it is open at all times to the other party to make an application to dismiss on grounds of a delay, whether that is to strike out for want of prosecution or dismiss or strike out a defence for failure to issue or simply because the delay, in the famous phrase, was "inexcusable and inordinate", the balance of justice supports that it be struck out and there is no case remaining to be answered, often because the wrong complained of has been left to linger for so long it can no longer be considered as grievous a wrong as it was first supposed. No party can sleep on their rights, as is sometimes said. It exists in the private law context and is applied regularly; those tests exist and those motions are brought. It is part and parcel of the bread and butter of the courts system on a daily basis. I think Deputy Jim O'Callaghan said, which I endorse, that it is not always the fault of the courts, the Judiciary or the courts system. It can be the fault of the parties. Those parties could include the State or private parties but very often the courts manage and administer the system but are at the mercy of the parties engaged in the litigation.

When the party is the State, there is a higher bar and it is more difficult. It is very difficult to contest the State in any matter in any sphere. One reason for the high bar for criminal prosecution is it is acknowledged in the balancing act that justice must strike that the State, as a party, as a prosecutor has overwhelming resources available to it, as opposed to the individual defendant.

This is one of the reasons we have rules such as the presumption of innocence and that proof must be established not on the balance of probabilities but beyond reasonable doubt. It is also one of the reasons that the prosecutor in a case is not a partisan player who must get a conviction at all costs but instead has an overwhelming duty to the court and to the defence team to put all the facts before the court and to allow it to reach an objective decision based on the best information put before it. The system is built this way to give every chance to those accused to defend themselves and prove their innocence. One of the reasons for this is because of the grievous wrong that would be seen were an innocent person to be found guilty. I think it is the Blackstone's ratio that refers to it being better that 99 guilty parties go free than that one man be condemned. In any event, the golden thread of the criminal law says this and has done so for many centuries for very good reason.

Deputy Connolly mentioned Article 6 of the European Convention on Human Rights, ECHR, which is addressed in this legislation, and the decision that led to this invoked Articles 6 and 13. Our Constitution, of course, as solid and robust as it has proven over the years and as far-sighted as it was when it was enacted, has been followed through and elaborated on since. Article 38.1 includes the doctrine of fair procedures. These include the right to a fair trial and this includes the right to trial with due expedition in the courts of law without delays. All these things are fundamental tenets of the justice system, and especially the criminal justice system, but they are not always followed. When the State is a party to proceedings, it is all the more difficult to challenge it in return, unlike a private situation where parties meet on equal terms.

I welcome the implementation of the scheme. The Minister of State has talked through the details of what is being proposed. These seem eminently sensible and pretty much in line with our obligations. It should remedy the possibility of those issues I spoke of occurring in future. A sensible belt-and-braces approach is being used in how this will be applied. The assessor will consider the claim and within six months, which again seems very fair. An investigation into a delay should not itself be delayed. Many of these aspects appear to be self-evident, but I commend the Minister of State on bringing this legislation forward to give them practical effect.

I suggest a couple of other practical measures that could be weighed in the round along with this endeavour. We have already heard the number of judges spoken about. One of the reasons why court lists are busy in nearly every courtroom in the country is simply because there is not the capacity or enough hours in the day for the sitting judge or judges to process the sheer volume of cases coming before the courts. The programme for Government and recent announcements have stated we are to gain 24 new High Court judges, I think it is, in 2023 and 20 more than in 2024. These might be extra members of the Judiciary across all courts, but certainly a total of 44 new judges has been committed to by the Government. I welcome this development. It is badly needed. As cathaoirleach of the Joint Committee on Justice, one observation I make consistently is that almost every report that has come before our committee on a variety of topics, from data protection to gender-based violence to the family law courts and through to the coronial system, one of the recommendations made is that more judges are needed in the system, full stop. This is because any matter requiring a judicial determination must get to court and get there soon and we must have judges available to do this.

As an aside, I refer to the volume of work being pushed back towards the District Court level, even though in some cases this does make sense. The context of the new personal injuries guidelines, for example, will see many cases that would have traditionally been heard in the Circuit Court now being heard in the District Court. An amendment was also passed recently in respect of the new data protection legislation that allows cases in this regard to be heard in the District Court. Additionally, the defamation review coming before us shortly will probably envisage these types of cases potentially being brought in the District Court as well.

The new family law legislation is considering aspects such as divorces and significant family law determinations being remitted to the District Court too. I have concerns and questions about this in respect of something as significant as a divorce, which may perhaps end a marriage of many years, in the context of which many assets could be in play, including the family home as well other elements such as making proper provision for the parties involved over many years, as children mature. I am not certain the District Court level is cut out for these types of cases now. This is a significant area that I think should remain in the remit of the Circuit Court. As envisaged now, though, the family law legislation would suggest that these types of cases would be heard in the District Court. I am not sure whether this is appropriate.

Whether it is or not, the volume of those additional cases, including those in the realms of personal injuries, data protection and others, if they were all to travel en masseto the District Court, would mean that level of the courts system would be more overwhelmed than it is already. I ask the Minister of State to consider this aspect. I know he is very much aware of these situations and learned in the matter, but this is something he might take back and consider. I say this because I am concerned about how the District Court level would cope with this volume of litigation coming before it.

Regarding the appointment of judges, I am not sure of the breakdown of that figure of 44 new judges. I think the courts of first instance probably will have first call on them and the greatest need of them. The appellate courts are always important to determine a question of law, but it is the courts of first instance, the District Court, the Circuit Court and the High Court, where a matter is tried for the first time and where findings of fact are made and where the parties come before a court, give evidence and have a decision made, that are in the most dire need of intervention and additional resources.

I mention the District Courts being under pressure. If I can use an example from my area of Naas, this matter came up when the Joint Committee on Justice undertook the review of courts and courthouses. To call it the Naas district is a bit of a misnomer, because it actually includes County Kildare and west Wicklow. It is the most significant district in the court. It is the fourth busiest in respect of the volume of cases coming before it, and yet it has a single judge. Judge Zaidan heroically presides over that court daily and does his level best to manage the volumes of cases brought before him. The Cork district, though, which would be comparable, has three judges I think, while the Limerick district has two judges, if not three, and the Dublin metropolitan district has more than a dozen judges, if not closer to 20 or more, hearing cases. The Naas district is overpopulated in its caseload and understaffed with judges.

I have long said in this House and elsewhere that the district needs a second judge, which would help to manage the load. What happens now, unfortunately, is that justice is being delayed and denied because we see a block adjournment on many afternoons. Despite his very best efforts, the judge cannot get through 300 or 400 cases before him in one day. A block adjournment results. Defendants and plaintiffs, accused people and victims of crimes see their cases being postponed again and again with block adjournments. This situation cannot be sustainable for much longer. I ask the Minister of State to examine this issue. A commitment was given previously that a second judge for the district would be considered. I ask the Minister of State to look at this again and to respond in this regard.

I will mention another factor that exacerbates the delays we see in the system, again in the courts of first instance. We have recently seen industrial action taken by junior barrister members of the Bar, primarily by criminal barristers. They make a very good case. I have met with representatives of the Bar Council of Ireland and its criminal practice committee. They pointed out to me the context in this regard in respect of the unwinding of the financial emergency measures in the public interest, FEMPI, legislation. We are already aware of the situation that has pertained over the last ten to 15 years where several professions and public servants and others had their rates of pay and fees cut considerably during the crash. We understand how and why this happened.

Almost all professions and occupations, however, have had what was lost under these cuts at least restored to the pre-cut levels, if not bettered. These junior barristers are probably one of the only, if not the only, cohort left that has not had their pay restored. I have heard it said that all these people are doing fine and scoffed at as all being fat cats, swilling champagne and whatever else. They are not. Junior barristers are lucky to get €25.20 for a day's work in court in some instances. The system is not fit for purpose. I refer to what happens when a legal aid defendant comes before the District Court on a criminal charge. A fee of €50.40 is payable to the lawyer, in a general sense, who takes on this case. That lawyer may be a solicitor who may delegate this work to a barrister, who goes in to do it instead. There will be a split fee arrangement. The €50.40 is split into €25.20 each.

The barrister must go home, fill in a form, fill in a report, file a return, file a fee note and process the administration for a bill of €25.20, which then gets submitted. If he or she is lucky, that sum may be paid some years later, or it may not. It is not a situation then of all these people doing fine and well for themselves. Many of these professionals, and they are professionals who have studied and worked hard and made many sacrifices to get to this level so they can go into court and work on cases of this nature, where ultimately someone's innocence is at stake, find themselves unable to make ends meet. It is beginning to manifest in even further delays. This is again about delays and cases being cancelled. In a recent case, no senior counsel could be found to prosecute a case. It is, therefore, happening on the defence side of things and on the prosecution side of cases.

Apart from the pittance these junior barristers get paid, if they get paid, indeed, one of the other issues is the way the system operates. In many cases, these practitioners are dependent on the goodwill and trust of the solicitor to see them right when the solicitor claims the €50.40 to pay on the €25.20 to the barrister at a later stage. It would make far more sense if a system was enacted in the District Court, as already applies in the Circuit Court, where the barrister walking into the courtroom fills out the form, the pink slip as it is sometimes called, in the context of a direct payment model being in place. It would cut out all this messing and all this uncertainty and risk involved for all concerned and provide a direct income to those professionals working in the courts at District Court level.

Another element is also overdue for re-examination.

The concept of the legal aid scheme and how it is applied in the District Court was introduced many decades ago, at a time when solicitors did the bulk of the work in District Courts. That probably made sense in the main. However, the system did not envisage a scenario whereby there would be something like the Criminal Courts of Justice and people travelling. There could be multiple cases on a list, straddling everywhere from Swords to Balbriggan, Tallaght, the city centre and out to Castleknock and beyond. When multiple solicitors are travelling an hour in and out of town for the sake of one case, it of course makes sense that they would delegate that work to legal professionals already in court for the date. The model of having a barrister taking on those cases is reasonable and can be more effective in some cases but the direct payment model has to be examined. It would make a lot more sense to consider doing it that way and give the respect to those professionals that they deserve.

The District Court is the workhorse of the courts. It is a volumes game. It is where the rubber hits the road every single day throughout the year, including during vacation and outside of term time when other courts have risen. A District Court judge has to preside over a huge volume of cases, including deciding cases, hearing evidence, applying the rules and doing all the things they have to do. They have to administer their own lists. The Circuit Court system has a county registrar, who put manners on the lists, organises them and decides which cases go into which week and which case is not ready to go forward and needs to be put back. There is merit to a county registrar-style system to deal with all of that administration for the District Court. In effect, a senior Courts Service official could be delegated and appointed to manage and administrate the lists and take that work away from sitting judges in order that they do not have to be bogged down in administration and can get on with judging which is what, ultimately, they are there to do.

There are many reforms we could look at but I hope my contribution provides some ideas for the Minister of State. I commend him on what he is doing in general. This measure will bring us in line with European directives. We are addressing the McFarlane decision and attempting to remove delays. There are many more delays beyond this, unfortunately. While I welcome the Bill, there is a lot more to be done.

Efficiencies can be driven and we saw during the time of Covid how the courts reformed and progressed. Suddenly, rather than people waiting an entire day for a case to be called there were time managed lists and people could log in remotely. There are many innovations, which were very welcome and sensible. We could probably embrace them in this House as well, in terms of remote working and participation in committees etc. There seemed to be a reluctance at the time to do that. I am a little bit dubious as to why that was. Privilege could well have existed outside of this Chamber. The Constitution talks about the Oireachtas meeting in Dublin or áit eile. That could well have been an Internet chamber and a broadband cable. If there was a will, there was a way. For whatever reason, we did not do that. We could perhaps look at that another day. It is probably for another debate. There is an opening for modernisation in the House when it comes to efficiencies and how we manage our business. I commend the Minister of State.

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