The business of judging: Chief Justice on striking barristers, judge conduct and right-sizing the judiciary

Chief Justice Donal O’Donnell is not pleased about next week’s unprecedented strike by criminal barristers over the Government’s failure to reverse recession-era cuts to criminal legal aid fees.

“It’s very disappointing that it has come to this,” he says.

A functioning criminal legal aid system is “a key part of a functioning system of administration of justice”, it has “worked admirably in Ireland” and “deserves to be supported”, he says.

O’Donnell says he understands the concerns of lawyers as they prepare to strike next Tuesday, October 3rd.

“You’re talking about the non-restoration of fee levels to pre-financial crash levels; that is only nominal, nobody pays the same today for anything they got in 2008, 2009 or 2010,” he says.

“The idea there would be reluctance to restore those levels is disappointing, and what is also disappointing is there doesn’t seem to be a degree of engagement or explanation of why that position is taken.”

Expressing hope for “productive” engagement, he says what is required is “to work out the best answer for the State and the system”.

Personally, I think it’s really important that there is a judicial conduct regime. It is something judges voted for and they have adopted the judicial conduct guidelines

—  Chief Justice Donal O’Donnell

In his first newspaper interview, the Chief Justice spoke to The Irish Times in his chambers in the Four Courts in Dublin. His office is accessed by a corridor lined with framed photographs of judges, predominantly male until more recent years. A photograph featuring the women judges of the present Supreme Court stands out because it is so unusual.

Misconduct complaints

An open window means that every sound in the judge’s yard outside, where lawyers gather when the courts resume, can be heard. A smiling O’Donnell says he tries not to listen because that could mean hearing nothing good. The interview is held at a small round table where the Supreme Court of old used to consider its decisions before the judging moved to a more spacious conference room next door.

An acknowledged constitutional law expert, Belfast-born O’Donnell, who turns 66 next month, was appointed directly to the Supreme Court in 2010. He became Chief Justice in October 2021.

The first formal judicial misconduct complaints regime became operational the same month but, of 34 complaints received by the Judicial Council by the end of 2022, none were admissible.

The council’s registrar, who filters complaints for admissibility, has said complaints must allege judicial misconduct but complainants appeared unhappy with the outcome of their cases.

O’Donnell says he cannot discuss the Golfgate controversy, which predated the new complaints regime and featured, among others, the attendance by then newly appointed Supreme Court judge Séamus Woulfe at an Oireachtas golf society dinner in August 2020 during the Covid-19 pandemic.

Instead, the Chief Justice offers some general views on judicial conduct.

“Personally, I think it’s really important that there is a judicial conduct regime. It is something judges voted for and they have adopted the judicial conduct guidelines,” he says.

He is not surprised about the first tranche of complaints being deemed inadmissible and disagrees that might suggest a problem with the process.

‘Disappointed litigants’

An independent person decides on admissibility, their decision can be reviewed by a council body and this happens under a statutory regime which means decisions are judicially reviewable, he says.

Court hearings are digitally recorded, avoiding disputes about what happened, and the council itself can advance a complaint against a judge if an issue arises, he adds.

“It is early days, and I would be very disappointed if you were to witness disputes in court. You expect judges to behave better than perhaps people who have got the wrong end of the stick or who get very annoyed or frustrated,” he says.

“I used to get – and still get – letters from disappointed litigants and, if that is representative of the complaints, then it’s not surprising to me that a lot of complaints simply are inadmissible.”

It is “very important”, he stresses, that judges “hold ourselves to the standard that we believe is appropriate for judges” and the public understand complaints will be adjudicated and determined under a process that is “very clear, simple and cheap”.

A core part of O’Donnell’s work involves implementing the recommendations of the Judicial Planning Working Group, including strategic reform and modernisation of court systems aimed at making the administration of justice more efficient.

The Government has approved the group’s recommendations for appointment of 24 additional judges this year, with another 20 conditional on implementing reforms.

Ireland historically had the lowest number of judges per capita in Europe and the group concluded the 172 judges who were sitting at the time of its report was between 60 and 108 short of what was required over the next five years, he notes.

Under-resourcing

That level of under-resourcing is replicated in every other part of the system, says O’Donnell.

“The biggest problem will be providing proper and adequate resources to allow all the judges to perform to a 21st century standard,” he says.

Five more judges have yet to be appointed to the High Court, and two more to the Circuit Court, creating a problem for scheduling cases this term, he notes.

He shares the desire among lawyers to have the new family court complex at Hammond Lane in Dublin operational as soon as possible and says it is anticipated the complex will open in 2028. The Office of Public Works is managing the planning process and the Courts Service “cannot move any faster than the OPW does”.

‘It’s important that it be demonstrated the courts system is open to and treats everyone equally, no matter what they believe or don’t believe’

—  Chief Justice Donal O’Donnell

O’Donnell is continuing the work of the Chief Justice’s access to justice working group, established by his predecessor Frank Clarke. It held a conference earlier this year concerning reform of the civil legal aid scheme, currently the focus of a Government-established review.

“Everyone thinks the system needs to be reformed and improved,” he says. The Legal Aid Board does “admirable work” but “will be the first to say it needs more resources and the system needs to be addressed”.

The administration of justice “has to be looked at as a societal good, like the provision of health services, like education”, he says.

Litigation can be costly but that is not unique to Ireland and lessons can be learned from other jurisdictions, he says.

Whether a lawyer has charged too much is decided under the cost adjudication system, he notes.

Streamlining procedures

A “different and more difficult” question, more directly relevant to courts, is whether the litigation process itself can be made less costly.

Some issues can only be resolved at a policy level and could require legislation, but within the courts system a “simple object” is to ensure litigation is only undertaken and pursued “as a last resort” and, once commenced, is “processed as efficiently and effectively as possible”.

This inevitably involves a shift towards greater involvement by courts and judges at each stage of the litigation “which also drives the need for greater judicial resources”.

The type of steps include streamlining procedures, case management and encouraging or directing mediation or alternative dispute resolution methods before a case goes to court.

In certain types of public-interest litigation, adverse cost awards are not made by the courts, he notes. The Supreme Court has established a panel of lawyers willing to act pro bono in certain appeals by unrepresented litigants and various other groups provide legal assistance.

The establishment of the Court of Appeal in 2014 means the Supreme Court now deals only with appeals raising important legal issues, prompting some to wonder whether the court still requires nine judges. There are 10 currently but Ms Justice Marie Baker, who heads the Electoral Commission, retires in April.

O’Donnell says that, given the workload, the possibility of conflicts, other commitments and health issues that arise from time to time, nine is “about right”.

The court has between 60 and 80 appeals for hearing and some 240 applications for leave to appeal are being processed, he says. It has to decide not just who wins or loses cases of significance, it takes a lot of time to “focus on the why” because that may impact on a whole stream of cases and have implications for the law going forward.

Secular ceremony

O’Donnell counts 37 tasks the Chief Justice is required to do and says, on top of hearing and deciding cases, the burden is “not realistic”. Sharing some of the leadership responsibility among his Supreme Court colleagues and other judges would, he believes, benefit the system.

It was O’Donnell’s idea to have a new secular ceremony in the Four Courts to open the legal year next week.

Separate Church of Ireland and Roman Catholic services are incorrectly perceived as opening the new legal year when they are, in fact, held in conjunction with the opening, he says.

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A church service opens the legal year in the UK because there is still an official State church there but that is not the situation here, he notes.

Consultations were held, there was no opposition to the new ceremony and the religious services will be held before it, he says.

His aim was “a focal point that was secular and consistent with a republican constitution.”

“It’s important that it be demonstrated the courts system is open to and treats everyone equally, no matter what they believe or don’t believe.”

The fact the only events that occurred when the legal year opened were religious could give the wrong impression of the relationship between church and State in Ireland, he says.

‘A revolutionary thing’

While acknowledging the history of the church-State relationship here may be critically examined, he says it is important neither the 1922 or 1937 Constitutions provided for a State religion.

“That republican system of Government is based on the concept of equality before the law,” he says.

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With Ireland approaching the centenary of an independent courts system in 2024, he lists several events planned next year to celebrate the anniversary, including conferences and lectures.

The fact an entire court system was established in 1924 is of great importance, says O’Donnell.

The establishment of the District Court in place of the magistrates court, “which was seen as local landlords”, was “a revolutionary thing in 1924″.

The important thing in the Irish system is the obligation to hold everyone equal before the law, he stresses.

“Everyone coming into an Irish court should be treated equally and listened to and their arguments given the same consideration, thought, weight,” he says.

Diversity within the judiciary is a consideration for the new Judicial Appointments Commission and much has been achieved, he says. About 46 per cent of judges are women and the modern judge tends to be younger, enthusiastic and committed to administering justice fairly, he says.

Broader diversity

Achieving broader diversity cannot be solved at the point of appointment because then you are looking at the cohort of people who can be appointed and it must be tackled at every level, including through education and access to the professions, he says.

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Looking at what has happened within the judiciary here in the past few years, there is a willingness to have as diverse an appointment process as possible, he says.

At the end of the day, judges are asked to do a “very specific” task, he says. “I’m not entitled to ask for a judge that looks like me; I’m entitled to have a judiciary that is aware and conscious of all the different backgrounds of people.”

Being a judge, O’Donnell strongly believes, is “a public service”. When judges are appointed, they are not “barrister judges” or “solicitor judges” who advocate for that profession, he says.

“The important thing is they believe strongly in the importance of doing the job.”

Judges in our system are citizens, “ordinary people asked to do a particular job”, which comes with duties and restrictions, on behalf of their fellow citizens.

Expressing scepticism about any notion of leaving a “legacy” as Chief Justice, he says: “My only ambition is to try to leave the system better than I found it, to try to improve it as I go along.”