With the new legal year about to open, Mr Justice David Barniville is looking forward to people returning to courtrooms across the State, and an end to the often eerie silences in court buildings during the Covid-19 pandemic.
“We’re emerging from a Covid environment; I don’t think we can say confidently it’s business as absolutely usual as it was before Covid. My main priority is to try to get things back up and running as normally as possible and as soon as possible,” says the newly appointed president of the High Court.
As public health conditions “seem right”, he favours more in-person and hybrid (combined physical and remote) hearings. “Having people remaining at home doing most or all of their work from home is not good for the system, for people, it’s probably not good for litigants who are the most important people to think about in this. It’s good to have life around the courts, to have people come in and watch justice working.”
Remote hearings will stay in several areas of court work, including case management, call over lists and some motions. Medical and other professional witnesses will continue to have the option of giving evidence remotely.
The advantage of remote hearings during Covid was that some cases went ahead and “massive” backlogs were not created across all court lists, he says. The disadvantages included that trials were difficult to run well remotely unless very good platforms and software packages were used. He is particularly aware of the difficulties the pandemic meant for those who began their legal careers in the past two years. “They have not seen how cases work and are managed, barristers have not had a chance to stand up in court, it’s critical for all to see how a case works through all its different stages.”
In future, there will be more hybrid hearings, especially those dealing with the High Court wardship list. Much work has gone into equipping courtrooms with the necessary technology, but the final decision on how cases are heard will, he stresses, be for the Courts Service, as well as judges.
Backlogs remain across several court lists. The criminal courts, which already had a backlog, are badly affected. An accused person on bail had to wait 12 months for a trial in the Central Criminal Court (CCC) before Covid. Now, it is 22 months.
For accused persons in custody, the pre-Covid 12-month wait for trial in the CCC is now 14 months. The wait remains at 12 months in the Special Criminal Court.
A 30 per cent increase in new cases and offences in the CCC in the first half of 2022, compared to the first six months of 2019, further underlines the need for more judges and more courtrooms which, Barniville says, would address the delays.
He is warm in his praise for his predecessor, Mary Irvine, both for her submission to the Judicial Resources Working Group seeking more judges, and the work she did to steer the courts through the pandemic. She was “a brilliant president, liked and respected by all the High Court judges she worked with,” he says.
The working group, comprising public servants, is expected to report in coming months and Barniville is hoping it will lead to the Government approving about 20 extra High Court judges, including four more in crime and one more to assist the sole judge dealing with an “immense” extradition list.
Two more judges are sought for the commercial planning/strategic infrastructure list which currently occupies two judges full time. Having planning and housing judicial reviews decided quickly is a priority for Government but these are “exceptionally complex” cases. Noting the Government plan for a new environmental/planning court, Barniville says it will have to be properly resourced if it is to do what is intended. The judges dealing with the planning/strategic infrastructure list are effectively running a planning and environmental court now, so he does not think the new court will herald “a big change”.
The commercial court needs two more judges as the volume and complexity of cases is increasing, but the recent Ireland for Law initiative in New York to promote the country as a forum for major commercial cases, which he and Minister for Justice Helen McEntee attended, showed that the Irish courts are viewed as “extremely efficient.”
More judges are also sought for the personal injuries list, the non-jury and standard judicial review list, the asylum judicial review list and in family law.
A former chair of the Bar Council, Barniville “strongly supports” calls from the criminal Bar and others for the unwinding of cuts of between 30-70 per cent made to criminal legal aid fees during the 2008-11 financial crisis.
“People who do criminal work, whether they are defending or prosecuting, should be paid properly for what they do. I would have thought that is something that is vital in any democracy operating on the basis of the rule of law.”
Many public servants who had their pay cut have had it restored, but criminal legal aid barristers are still paid at 2002 rates “which I think is wrong”. Some do District Court work for a fee of €25 per appearance, which might be the only fee some get for a day, he notes. This situation has lead to many barristers not pursing criminal work at all and a “very high” drop off rate among those who do, with two thirds of them leaving within six years. “That is going to have big knock-on effects down the line. We need the best people to prosecute cases if we want to run an effective criminal justice system and we need very good people defending so accused persons get the best possible representation. This is something we should all be interested in.”
He regards as “a good sign” that Minister for Public Expenditure and Reform Michael McGrath met the Bar Council in August about the situation. “Hopefully it will lead to a resolution, but it ought to have been resolved before now.”
This came as a bit of a surprise to me; I have never been referred to a Wikipedia article by counsel
Asked about academic research which suggested that online encyclopedia Wikipedia influences the reasoning of some High Court judgments, Barniville says he was “very surprised” at the message conveyed by the research paper and its conclusions.
Published in July by US and Irish-based academics, the paper said the research found Irish Supreme Court decisions were 20 per cent more likely to be cited as precedents in court rulings if they were the subject of a Wikipedia article. The researchers concluded that Wikipedia — an online source which may be edited by anyone — was influencing the legal reasoning of judges and the language in judgments and this was most common in the High Court where the workload is heavier than in the appellate courts.
“This came as a bit of a surprise to me; I have never been referred to a Wikipedia article by counsel,” says Barniville. “Maybe solicitors and counsel go to Wikipedia and use that as the basis of their written submissions but I have never been referred to a Wikipedia article.”
He regards Wikipedia as a “very useful tool” in some matters “but not for writing judgments”. When preparing judgments, judges consider what the parties submit, he says. “It’s not part of our tradition to ferret around for other cases, and certainly not to go to Wikipedia. I think that’s the position adopted by our judicial assistants as well.”
He is “slow to say too much about it” because a response is being prepared by “at least one member of the judiciary” who is seeking the data underlying the research paper.
“I wouldn’t imagine there is any difficulty providing the data if you have an open transparent response to these things. In due course, we will see a considered article that responds in detail to it.”
The human rights concerns and the Dubai commercial court appointments are, he believes, ‘two different things’
Criticism of the decision of two retired Irish judges, former Chief Justice Frank Clarke and former High Court president Peter Kelly, to accept appointments to the Dubai International Financial Centre (DIFC) court was “ill-informed” and “a bit unfair”, Barniville believes. Both retired judges resigned less than a week after their appointments in late July amid publicly voiced concerns, including about the Dubai administration’s poor human rights record. A retired New Zealand judge resigned later.
Critics noted Sheikh Mohammed bin Rashid Al Maktoum, ruler of Dubai and prime minister of the United Arab Emirates, is president of the DIFC court and was subject of adverse findings by the English courts concerning his treatment of one of his former wives and a daughter.
Barniville says retired common law judges sit on international commercial courts across the world, including in the Gulf states. Those courts have “excellent” reputations internationally and are members, alongside major international commercial courts including Ireland, the US and UK, of the Standing International Forum of Commercial Courts.
An Irish judge has never been appointed to any of these courts and it was “a great tribute” to the international reputation of the retired Irish judges to be appointed to the Dubai commercial court.
Both men are private citizens, having had to retire as judges when they reached 70, after “incredible public service” to the State as judges.
Asked about the human rights concerns, he says Dubai is a “hugely important market for Ireland” and there is much Irish business and government contact with people in UAE state.
“You don’t always have to approve of a regime to work as part of it.”
“Obviously, Sheikh Al Maktoum is somebody who has been found responsible for pretty appalling things by an English court and there’s no getting away from that.”
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The human rights concerns and the DIFC appointments are, he believes, “two different things”. The DIFC is a separate court, separate from the Dubai domestic court system [where sharia law operates], and is staffed by “respected judges”.
Some critics made a “completely misplaced” and unfair comparison between the Liv Golf tour in Saudi Arabia and the DIFC court. “I can fully understand why, faced with the sort of public criticism that came out at the time, that both Peter Kelly and Frank Clarke decided they did not wish to remain on the court.” That was “a terrible pity, and awful for them”.
“I’m very happy to say I think very, very highly of both of them and I don’t think any less of them as a result of this at all. I can understand why they resigned but I do think a lot of the criticism didn’t really understand what was involved.”
He disagrees the appointments risked a perception of monetising of the judicial office and says his understanding was the DIFC positions are “not terribly well paid” and both retired judges “have a strong interest in keeping some element of judging as part of their lives”.
Kelly “spends most of his time doing voluntary and charity work, this was probably something that interests him. It was a horrible thing to happen to both of them”.
The retirement age of 70 for judges here is low by international standards and the Association of Judges of Ireland has pressed for judges to have the option to work on until aged 72, he adds. He sees no distinction between retired judges doing work on behalf of the State, such as tribunals of inquiry, and private work such as mediations, and no need for a code of conduct for retired judges, reiterating they are private citizens.
I expect there will be complaints. I imagine most will be without merit but, who knows, judges are human too
It will take time, Barniville believes, for the judiciary to reflect the growing diversity of the Irish population. “Diversity is not the only thing, obviously you want to get the best people to do the job.”
The current crop of High Court judges are “absolutely brilliant”. Of some 12 new appointees in the past two years, all are “quite young”, about half are women and come from both branches of the legal profession. His personal view is there is “no major difficulty” with the current system of judicial appointments but says any change to that is a political decision.
On the expected introduction shortly of the first ever judicial misconduct complaints procedure, he says judges have undergone “very good training” in advance of that, much of it directed towards ethics and conduct. The Judicial Council wants proper resources to deal with complaints, he adds.
“Judges have had plenty of notice of it, their antennae will be up, I expect there will be complaints. I imagine most will be without merit but, who knows, judges are human too.”
