The Government is to rush through the appointment of four new judges after the president of the High Court said she has “no option” but to cancel a “substantial amount” of trials and hearings, including potentially rape and murder cases.
Speaking in court on Friday, Ms Justice Mary Irvine said the judges, whose nomination was agreed by the Cabinet on September 15th, would have been unable to sit before November because they have not yet got their warrants of appointment.
The trials affected include all asylum cases listed up to October 29th, some personal injuries trials listed for hearing in Limerick, planning cases and, possibly, some lengthy rape and murder trials.
Ms Justice Irvine said the consequence of the criminal division of the High Court being short two judges for October will be the “probable postponement” of a number of lengthy criminal trials, “most likely murder or rape trials”.
She said she fully understood the hardship, upset and distress this will cause to all those affected, litigants, their lawyers, victims and accused persons, but she had “no option”. She was “acutely aware” of the distress the cancellation of criminal trials will have on the victims of crime impacted by the decision and on the accused, particularly those in custody who are presumed to be innocent.
She could do no more than assure all those affected she would do everything she can to have the cases relisted as soon as possible in 2022. “For now, regrettably, the court’s diary is full well into the new year.”
Speaking in court on Friday, she said the Government had last April made a “welcome” announcement of its intention to legislate to provide five additional judges for the High Court.
It was reasonable to assume those five would be in place for the start of the new legal year on Monday, October 4th, and it was also reasonable to assume a number of other judges who had retired or been promoted in the intervening period would be replaced, she said.
“Unfortunately, these assumptions have proven to be misplaced.” In fact, she said, the High Court will now start the new legal year with seven judges short of the complement it was assured it would have last April.
The latest information from the Department of Justice lead her to believe it will very likely be November before the new judges will have received their warrants and be in a position to sit, with the “slight possibility” two of them may be available to sit in the last week in October.
In the circumstances, having delayed her decision as long as possible, she had no option but to cancel a substantial amount of work scheduled for October, almost all of which was to be dealt with by the additional judges.
A spokesman for the Department of Justice said the Government agreed last month to nominate five High Court judges for appointment by President Michael D Higgins.
“The Department of Justice, as is standard practice, is working with the other State actors involved to ensure the nominees can be formally appointed as quickly as possible,” he said.
On Friday night, Government sources were tightlipped about the reasons for the delay in scheduling the appointments, but Áras an Uachtaráin moved quickly following the airing of the concerns by Ms Justice Irvine.
Following a flurry of contacts between Government and the President’s office, arrangements were made to make the formal appointments of four High Court judges next Tuesday, and other judges in the following week.
In a statement, the President’s spokesman said: “Following recently received requests, arrangements have been made, as is normally the case, for President Higgins to appoint a number of Judges to the High Court on Tuesday 5 October, to appoint Mr Justice O’Donnell as Chief Justice on Monday 11 October, and to appoint Justice Hogan to the Supreme Court on either 15 or 18 October.”
Ms Justice Irvine said the case of Addie & Sweetman v An Bord Pleanála in the planning list was cancelled and further cancellations in that list will be announced on October 14th.
All asylum cases between now and October 29th are cancelled and an announcement regarding any further cancellations will be made on October 21st.
Because only one judge, instead of two, can be allocated to hear 120 personal injuries actions listed for hearing in Limerick between October 18th and 29th, all actions not commenced or otherwise dealt with on the second day of their listings will be cancelled and rescheduled for hearing in the next law term opening in January 2022.
An announcement concerning cancellation of cases between October 11th-29th in the chancery and non-jury lists will be made on October 7th.
In relation to criminal cases, the judge said bail applications cannot be cancelled due to the constitutional rights of those concerned and extradition cases must proceed in line with European law obligations and because many affected are in custody.
The effect of the criminal division being short two judges in October will mean the probable postponement of lengthy criminal trials, most likely murder or rape trials, she said. The court would concentrate on keeping most of the shorter trials in place, subject to affording priority to particularly sensitive trials involving sexual offences involving juveniles and young vulnerable witnesses.
Because a trial may collapse or there may be a last-minute guilty plea, criminal trials will not be cancelled immediately but will be cancelled on a day-to-day basis as and when that need arises, she said. This was the best decision that could be made “ in the present unprecedented circumstances”.
Notices will appear in the courts' legal diary and on the Courts Service website over the coming weeks concerning the cancellations.
