The Role of the Supreme Court

The jurisdiction of Ireland’s Supreme Court is wide. Far from being limited to deciding whether a law or a type of conduct is unconstitutional, its remit extends to all legal matters, whether civil or criminal, public or private. There has never been a serious debate in Ireland as to whether there should be a separate apex court dealing only with constitutional matters, so to that extent the country falls into the same category as most other common law legal systems, such as Australia, Canada, India, New Zealand, the United Kingdom and the USA.¹ On the other hand, civil law countries, such as Germany and Spain, and some mixed legal systems, such as South Africa, maintain both a Constitutional Court and a Supreme Court. There are merits and demerits to both approaches but the consensus amongst common law countries seems to be that avoidance of demarcation disputes between two apex courts is a compelling argument for having just one of them.

Within the common law family of legal systems a further distinction can be drawn between those which are federal systems and those which are not. In the former systems the country’s top court has the additional role of deciding whether the federal and state or provincial authorities are performing their duties and exercising their powers in a constitutional manner. Since Ireland is not a federal system the role of its Supreme Court is more akin to that of the top courts in the United Kingdom, where a Supreme Court replaced the Appellate Committee of the House of Lords in 2009, and New Zealand, where a Supreme Court took over the role previously played by the Judicial Committee of the Privy Council in 2004.

This chapter considers how the jurisdiction of the Irish Supreme Court has come to be as it is today and explains how recent reforms to its jurisdiction are likely to enhance the efficiency of the Court.²

Ireland’s Final Court of Appeal

Prior to the creation of the Irish Free State in 1922 the final court of appeal for legal disputes arising in any part of Ireland was the House of Lords in London. The Supreme Court of Judicature Act (Ireland) 1877, like the equivalent legislation for England and Wales in 1873, created a new High Court of Justice in Ireland and a new Court of Appeal in Ireland.³ Together they were described as two divisions of the Supreme Court of Judicature in Ireland.⁴ The Lord Chancellor of Ireland, the Lord Chief Justice of Ireland, the Master of Page Id: 45ReferencesSupreme Court of Judicature Act (Ireland) (United Kingdom [gb]) 1877 c.57 (40 & 41 Vict)Supreme Court of Judicature Act (United Kingdom [gb]) 1873 c.66 (36 & 37 Vict)s.5s.6s.10s.21s.23s.34s.56s.86(p. 46) the Rolls of Ireland, the Lord Chief Justice of the Irish Common Pleas⁵ and the Lord Chief Baron of the Irish Exchequer⁶ were entitled in sit in both divisions, with two ‘ordinary judges’ appointed to sit only as Lords Justices of Appeal in the Court of Appeal. The 1877 Act confirmed that all decisions of the Court of Appeal in Ireland were subject to appeal to the House of Lords in London, under the same conditions as had previously applied to appeals from the Court of Appeal in Chancery in Ireland or the Court of Exchequer Chamber in Ireland to the House of Lords or to the Privy Council.⁷

As mentioned in Chapter 2, under the Government of Ireland Act 1920 a new Court of Appeal in Southern Ireland was created to take over the work in that part of the island of the Court of Appeal in Ireland and to be the equivalent of the Court of Appeal in Northern Ireland.⁸ As regards further appeals, the 1920 Act created a new tier of appeal court with jurisdiction throughout the whole of Ireland—the High Court of Appeal for Ireland.⁹ This court could hear appeals from any decision of the two regional Courts of Appeal¹⁰ and could sit in whichever part of the island the appeal came from.¹¹ It was composed of the Lord Chancellor of Ireland, the Lord Chief Justice of Northern Ireland and the Lord Chief Justice of Southern Ireland, with other judges nominated from the two parts of Ireland if necessary.¹² The High Court of Appeal first sat on 15 December 1921 and continued in place for less than a year, sitting for the final time on 5 December 1922.¹³ The Irish Reports for 1922 and 1923 include nine decisions by the Court, all in civil cases.¹⁴ In the first of these cases the claimant challenged the jurisdiction of the new Court, pointing to legislation which said that the decision of the Court of Appeal in a case begun in a county court was ‘final and conclusive’,¹⁵ but the High Court of Appeal rejected this argument by holding that the point of setting up the High Court of Appeal was to ensure uniformity of the law throughout Ireland.¹⁶

The Government of Ireland Act 1920 preserved the same right to appeal from the High Court of Appeal for Ireland to the House of Lords as had existed for the Court of Appeal.¹⁷ In addition it permitted appeals to the House of Lords in any case where a person was aggrieved by any decision of the High Court of Appeal for Ireland in proceedings taken by way of certiorari, mandamus, quo warranto or prohibition¹⁸ and also in any case where a decision of the High Court of Appeal concerned the validity of any law made by or having the effect of an Act of the Parliament of Southern Ireland or Northern Ireland and the Page Id: 46ReferencesBoggan v Motor Union Insurance Company, [1923] 2 IR 136, 1923, Ireland; Supreme CourtCooper v General Accident Assurance Corporation, [1922] 2 IR 38, 1922, IrelandCounty Court Appeals (Ireland) Act (United Kingdom [gb]) 52 & 53 Vict c.48s.8Government of Ireland Act (United Kingdom [gb]) 1920 c.67 (10 & 11 Geo 5)Provisions as to Courts of Law and Judges, s.38Provisions as to Courts of Law and Judges, s.39(1)Provisions as to Courts of Law and Judges, s.43Provisions as to Courts of Law and Judges, s.43(1)Provisions as to Courts of Law and Judges, s.43(2)Provisions as to Courts of Law and Judges, s.49Hughes v McNaull, [1923] 1 IR 78, 1923, IrelandJackson v Stopford, [1923] 2 IR 1, 1923, Ireland; Court of Chancery (historical)James Crean & Son Limited v J Steen McMillan, [1922] 2 IR 105, 1922, IrelandLeyburn v Armagh County Council, [1922] 2 IR 58, 1922, IrelandMary Keane, Re, [1922] 2 IR 221, 1922, IrelandMcKnight v Armagh County Council, [1922] 2 IR 137, 1922, IrelandWycherly v Flynn, [1922] 2 IR 169, 1922, Ireland(p. 47) decision was not otherwise subject to appeal. Existing provisions as to the need to seek leave to appeal were preserved too.¹⁹ Incredibly, at least two of the nine decisions of the High Court of Appeal referred to above were further appealed to the House of Lords, thereby providing a fourth appeal for the initially disappointed litigant.²⁰ In the second of the two cases (Boggan) the House of Lords overturned the decision of the High Court of Appeal and in the process followed its own decision in the first of the two cases (Cooper).

From December 1922 until June 1924 the highest court in the Irish Free State was the Court of Appeal, although as we have seen in Chapter 3 an appeal could be taken in some instances to the Judicial Committee of the Privy Council in London. The Supreme Court took over the role of top court in Ireland in June 1924 and, because of a transitory provision,²¹ continued in being even after the 1937 Constitution made provision for a new Supreme Court.²² The new Supreme Court was not formally established until 29 September 1961, the commencement date for the Courts (Establishment and Constitution) Act 1961.²³ By the Courts (Supplemental Provisions) Act 1961 the Supreme Court was declared to be ‘a superior court of record with such appellate and other jurisdiction as is prescribed by the Constitution’,²⁴ and it went on to specifically confer on the new Court (a) all jurisdiction which was previously vested in the Court of Appeal in Southern Ireland before 1924 and which had later been vested in the existing Supreme Court and (b) all other jurisdiction which was exercisable by the existing Supreme Court.²⁵

The Court of Criminal Appeal

Article 66 of the 1922 Constitution said that the Supreme Court ‘shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court’. Article 34.4.3 of the 1937 Constitution was worded in essentially the same way but added that the Supreme Court ‘shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law’. Notwithstanding these provisions, from the very start of the Supreme Court’s existence there was a major exception, or qualification, to the Supreme Court’s jurisdiction in criminal cases. Decisions taken in such cases by the High Court (when it was to be referred to, for no obvious reason, as the Central Criminal Court²⁶) could be appealed instead to the Court of Criminal Appeal, although there was still the possibility of a further appeal from the Court of Criminal Appeal to the Supreme Court.

The Court of Criminal Appeal, while not foreseen in the 1922 Constitution, was created at the same time as the High Court and Supreme Court. Its establishment is a consequence of the view that criminal cases deserve to be treated differently for at least three reasons. First, criminal cases are extremely numerous in lower courts and if appeals against their decisions could too easily be brought to the Supreme Court it might be overwhelmed. Second, Page Id: 47ReferencesConstitution of Ireland: December 29, 1937 (Ireland [ie])Transitory Provisions, Art.58Constitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34(2) OCWMain Text, The Courts, Art.34(4)(1) OCWMain Text, The Courts, Art.34(4)(3) OCWConstitution of the Irish Free State (Saorstát Eireann) Act (Ireland [ie]) No 1 of 1922Courts (Establishment and Constitution) Act (Ireland [ie]) No 38 of 1961s.1(1)Courts (Supplemental Provisions) Act (Ireland [ie]) No 39 of 1961Pt.II Supreme Court, High Court, Chief Justice, President of the High Court, Central Criminal Court and Court of Criminal Appeal, s.7(1)Pt.II Supreme Court, High Court, Chief Justice, President of the High Court, Central Criminal Court and Court of Criminal Appeal, s.7(2)Pt.II Supreme Court, High Court, Chief Justice, President of the High Court, Central Criminal Court and Court of Criminal Appeal, s.11Pt.V Miscelleanous Provisions, s.48(p. 48) criminal appeals often turn on disputes about facts, the credibility of witnesses, or the appropriate sentence to impose on a person who has been convicted, all of which are matters which do not usually entail the application of great legal acuity and are inappropriate for detailed consideration by the sharpest judicial minds in the country. Third, criminal convictions can have huge consequences for accused persons and it is therefore sensible to make available more than just one opportunity to appeal against those convictions.

The Courts of Justice Act 1924, in section 8, provided that the Chief Justice could, from time to time, request any two ordinary judges of the High Court to sit with him- or herself, or with another judge of the Supreme Court, as the Court of Criminal Appeal of the Irish Free State. Any other available judge of the High Court or Supreme Court could, at the request of the Chief Justice, attend as members of the Court of Criminal Appeal for the occasion in question. The Court was formally re-established some 24 years after the 1937 Constitution (where again it was not mentioned), but its jurisdiction remained unaltered.²⁷ It still had to be comprised of at least three judges: one had to be the Chief Justice or an ordinary judge of the Supreme Court nominated by the Chief Justice, while the other two had to be the President of the High Court and another judge from the High Court nominated by the Chief Justice.²⁸ In addition, any other available judge of the Supreme Court or High Court could attend at the request of the Chief Justice.²⁹

The Court of Criminal Appeal was always a bit of an anomaly in the Irish legal system. It may in part have been established because a court with the same name had been created in England and Wales by the Criminal Appeal Act 1907 and seemed to be working well. But the latter could hear appeals on points of law, points of fact, and sentencing,³⁰ while in Ireland the Court of Criminal Appeal was limited to hearing appeals on points of law and sentencing. In neither court could there be an appeal by the prosecution against a defendant’s acquittal.³¹ In Ireland appeals could be brought not only from the High Court but also from the Circuit Court. A peculiarity of both Courts of Criminal Appeal was that from their inception the judgment of the court had to be pronounced by the judge presiding in the court or such other member of the court as that judge directed, with no other member of the court being permitted to issue a separate judgment, whether concurring or dissenting.³² Presumably this was intended to increase the likelihood that the law stated by the court would be clear and certain.

In People (AG) v Conmey³³ a challenge was raised in the Supreme Court against the constitutionality of the appeal path created to the Court of Criminal Appeal, on the basis that it violated the constitutional right to appeal to the Supreme Court.³⁴ The challenge was unsuccessful because O’Higgins CJ, for the Supreme Court, pointed out that there was nothing in either the 1922 or 1937 Constitutions to prevent the Oireachtas from establishing new courts to hear appeals and that the Courts of Justice Act 1924 expressly allowed for an appeal from the Court of Criminal Appeal to the Supreme Court. According to section 29 of that Act, while a decision by the Court of Criminal Appeal was final, an appeal could lie to the Supreme Court if the Court of Criminal Appeal or the Attorney General certified Page Id: 48ReferencesConstitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34(4)(3) OCWConstitution of the Irish Free State (Saorstát Eireann) Act (Ireland [ie]) No 1 of 1922Sch.1 Constitution of the Irish Free State (Saorstát Eireann), Art.66Courts (Establishment and Constitution) Act (Ireland [ie]) No 38 of 1961s.3(1)s.3(2)Courts of Justice Act (Ireland [ie]) No 10 of 1924Pt.I The High Court and the Supreme Court, s.8Pt.I The High Court and the Supreme Court, s.28Pt.I The High Court and the Supreme Court, s.29Criminal Appeal Act (United Kingdom [gb])s.1(5)s.3People (Attorney General) v Conmey, [1975] 1 IR 341, 1975, Ireland; Supreme Court(p. 49) that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.³⁵ In 2006 the certifying power was extended to the Director of Public Prosecutions.³⁶

In People v Lynch, the Supreme Court asserted that any legal prescriptions depriving the Supreme Court of its appellate jurisdiction needed to be ‘clear and unambiguous’,³⁷ but it did not cast any doubt on the interpretation of the provision in the Courts of Justice Act 1924 adopted in People (AG) v Conmey. Research conducted for a later Working Group found a lack of uniformity of practice within the Court of Criminal Appeal and Supreme Court as regards whether to hold an oral hearing to deal with applications for leave to appeal and whether to give reasons for granting or refusing leave, but such inconsistency was also apparent in other common law jurisdictions.³⁸

Given that a Supreme Court judge was involved in every decision made by the Court of Criminal Appeal during its 90-year history, a case could be made for including the output of that Court within this book’s consideration of the Supreme Court’s law-making. But as all of the Court of Criminal Appeal’s decisions consisted of just one judgment it is impossible to be specific as to which Supreme Court judges were responsible for particular views expressed in those judgments. The Court remains a largely under-researched institution and unfortunately there is no space to say more about it here. As we shall see, the Court of Criminal Appeal was eventually abolished in 2014, almost 50 years after the same step had been taken in England and Wales.³⁹ It was replaced by a Court of Appeal empowered to deal with both civil and criminal appeals. The creation of the Court of Appeal was the final chapter in the development of appeal routes to the highest courts in Ireland. To aid clarity the stages in that development are set out diagrammatically in Figure 4.1 below.

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Fig. 4.1  The history of appeal routes in Ireland, 1877–2018

The Growing Caseload of the Supreme Court

The Jurisdiction of the Supreme Court Today

Following the people’s approval of the creation of a Court of Appeal in a referendum held on 4 October 2013,⁹³ Ireland’s Constitution was duly amended.⁹⁴ Article 34 now provides that ‘[j]ustice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution’⁹⁵ and those courts shall comprise (i) courts of first instance, (ii) a Court of Appeal and (iii) a Court of Final Appeal.⁹⁶ It is not until three sections further on that we are told that ‘[t]he Court of Final Appeal shall be called the Supreme Court’.⁹⁷ The Court of Appeal came into existence on 28 October 2014.

Article 34.4 sets out the jurisdiction of the Court of Appeal and in doing so removes a large chunk from the Supreme Court’s previous jurisdiction. It confers on the Court of Appeal—subject to exceptions⁹⁸—all of the jurisdiction previously vested in the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court. A new Article 34.5.3 of the Constitution (replacing the former Article 34.4.3) sets out what the new jurisdiction of the Supreme Court is to be:

So it is now necessary for only one of the two pre-2014 conditions to be satisfied before an appeal can be heard by the Supreme Court in a criminal case, and the term ‘general Page Id: 59ReferencesConstitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34 OCWMain Text, The Courts, Art.34(1) OCWMain Text, The Courts, Art.34(2) OCWMain Text, The Courts, Art.34(4)(3) OCWMain Text, The Courts, Art.34(5)(1) OCWMain Text, The Courts, Art.34(5)(3) OCWCourt of Appeal Act (Ireland [ie]) No 18 of 2014Pt.4 Miscellaneous, s.78(1)(p. 60) public importance’ has replaced ‘exceptional public importance’, but in truth it is difficult to envisage any situation where those changes will make an appeal more likely to occur in a criminal case today than it would have done previously. Moreover, the slightly new wording suggests that the Supreme Court will maintain its earlier position whereby a certificate granting permission to appeal in a criminal case will not be awarded where, even if the appeal were to turn out to be successful, it would not benefit the appellant in any way.⁹⁹

Nevertheless, the introduction of these ‘leave’, or permission, requirements for appeals to the Supreme Court is perhaps the single most significant procedural reform to have occurred in the whole history of the Court to date. The solicitors’ firm Arthur Cox has called the institutional changes ‘the most important reform to the organisation and structure of the Irish court system since the foundation of the State’.¹⁰⁰ The consequence is that to a much greater extent than in the past the Supreme Court is now in control of its own ‘docket’, that is, the list of appeals it is due to hear, whether civil or criminal. It is no longer obliged to deal with appeals that are of relatively minor legal interest, leaving it a lot more time to consider matters of real legal significance. The Supreme Court will have to develop criteria regarding what qualifies as ‘a matter of general public importance’ and what is ‘in the interests of justice’, as an appeal can be heard only if the issues raised fall within at least one of those categories. But if it follows the model of top courts in other countries it will not undertake this task systematically. The UK Supreme Court, for example, gives no specific reasons for granting or rejecting permission to appeal: it simply repeats the statutory test and states whether or not it has been satisfied. The Supreme Courts of Canada and the USA, and the High Court of Australia, behave in a similar fashion. Even the European Court of Human Rights, when deciding whether to allow a decision by a Chamber of the Court to be reviewed by the Grand Chamber, does not express the reasons for its decision; nor does it see the refusal to give reasons at the national level as a violation of a state’s duty under Article 6 of the ECHR to provide litigants with a fair trial. The extra time available to Supreme Court Justices to write their judgments might lead to an enhanced quality of law-making, since there will be greater opportunity to locate the issues in a comparative setting and to take into account the views of third party interveners. It should also lead to reserved judgments being issued more quickly than in the past.

Leapfrog Appeals to the Supreme Court

Notwithstanding the constitutional right to appeal from the High Court to the Court of Appeal conferred by Article 34.4.1 of the 1937 Constitution, Article 34.5.4 goes on to say that the Supreme Court, subject to such regulations as may be prescribed by law, still has appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, given that the decision involves a matter of general public importance or that a direct appeal would be in the interests of justice. A power has been conferred on the Court of Appeal to stay an appeal before it from a decision of the High Court in order to enable the applicant to apply to the Supreme Court for leave to make one of these direct appeals.¹⁰¹

This alternative route to the Supreme Court is comparable to the so-called ‘leapfrog’ appeal in England and Wales (and Northern Ireland), where an appeal from the High Court Page Id: 60ReferencesAdministration of Justice Act (as amended) (United Kingdom [gb]) 1969 c.58Pt.II Appeal from High Court to Supreme Court, s.12Pt.II Appeal from High Court to Supreme Court, s.12(3)Pt.II Appeal from High Court to Supreme Court, s.12(3A)Constitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34(4)(1) OCWMain Text, The Courts, Art.34(5)(4) OCWConvention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No 15 (Council of Europe) 213 UNTS 222, ETS No 5, UNTS Reg No I-2889Section I Rights and Freedoms, Art.6Court of Appeal Act (Ireland [ie]) No 18 of 2014Pt.2 Court of Appeal, Ch.1 Establishment of Court of Appeal, s.9Courts (Supplemental Provisions) Act (Ireland [ie]) No 39 of 1961Pt.II Supreme Court, High Court, Chief Justice, President of the High Court, Central Criminal Court and Court of Criminal Appeal, s.7B(1)(p. 61) can bypass the Court of Appeal and go directly to the Supreme Court if the High Court (or a Divisional Court within the High Court) grants a certificate allowing it and the Supreme Court grants permission to appeal applying its usual criteria.¹⁰² The certificate can be granted by the lower court only if there is a point of law of general public importance involved in the case and (a) it relates mainly to the construction of legislation, (b) it is one in respect of which the judge is bound by a previous decision of the Court of Appeal or Supreme Court, (c) it relates to a matter of national importance, (d) it is so significant that a hearing by the Supreme Court is justified, or (e) the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.¹⁰³

Leapfrog appeals are rare in England and Wales (and Northern Ireland), with perhaps two or three a year at most, so it will be interesting to see if the Supreme Court of Ireland will be equally selective in accepting direct appeals under Article 34.5.4. In general it is likely to be keen to deflect appellants to the Court of Appeal, from which, as we have seen, there can in any event be a further appeal to the Supreme Court, but in situations where such a further appeal is almost inevitable, given the controversial nature of the issues at stake, the Supreme Court may think that it would be more efficient in terms of time and costs to allow the appeal to go directly to it from the High Court. The downside would be that the Supreme Court would be deprived of the detailed legal analysis of a group of Court of Appeal judges. Even if Irish law does not specify in as much detail as English law the circumstances in which a direct appeal to the top court would be appropriate, it is clear from the use of the adjective ‘exceptional’ in Article 34.5.4 that it ought to be a rare occurrence.

It should be noted that because the Constitution allows the Supreme Court to consider the constitutionality of legislation only when it is exercising its appellate jurisdiction, if such an issue arises during an appeal from the High Court but has not previously been considered by the High Court it has to be remitted to that Court before the Supreme Court can deal with it. This occurred in Dunnes Stores Ireland Co v Ryan, where Murray J, with whom Denham and Murphy JJ concurred, expressed the view (endorsing a suggestion made in 1967¹⁰⁴) that where a constitutional issue concerning the validity of a provision in an Act arises in proceedings and no decision on any disputed question of fact is required in order to deal with it, the Supreme Court should be given the power, at least with the parties’ consent, to determine the issue.¹⁰⁵ To date, however, such a reform has not occurred.

Referrals to the Supreme Court

To deal with situations where an accused person is acquitted but there is some unease that the state of the current law has permitted such an acquittal, a mechanism was introduced in 1967 whereby the Attorney General could refer a question of law arising from the trial for determination by the Supreme Court.¹⁰⁶ As in the context of certificates permitting an appeal from the Court of Criminal Appeal, this provision was re-worded in 2006 to allow the Director of Public Prosecutions to make the referral if he or she was the prosecuting authority in the trial.¹⁰⁷ At the same time the opportunity was taken to confirm that the Page Id: 61ReferencesConstitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34(5)(4) OCWCriminal Appeal (Northern Ireland) Act (Northern Ireland)Part I Appeal to Court of Appeal from Crown Court, Reference of point of law, s.15Part II Appeal to House of Lords from Court of Appeal, Reference of point of law, s.34Criminal Justice Act (Ireland [ie]) No 26 of 2006Pt.4 Appeals in certain criminal proceedings, s.21Criminal Justice Act (United Kingdom [gb]) 1972 c.71Pt.III Miscellaneous Provisions, s.36Criminal Procedure Act (Ireland [ie]) No 12 of 1967Pt.IV Miscellaneous, s.34Criminal Procedure Act (Ireland [ie]) No 27 of 2010Pt.4 Appeals and Matters Relating to Appeals, Ch.1 With prejudice prosecution appealsDunnes Stores Ireland Company and ors v Ryan and ors, [2002] IESC 7, [2002] 2 IR 60, 1st February 2002, Ireland; Supreme Court(p. 62) mechanism is available even for trials in the Special Criminal Court and to specify that when dealing with referrals the Supreme Court must do all that is reasonably practicable to withhold the identity of the acquitted person unless he or she agrees that it can be revealed. ‘With prejudice’ appeals against an acquittal (ie, appeals which may overturn the acquittal) were not permitted in Ireland until the enactment of the Criminal Procedure Act 2010.¹⁰⁸

When the Court of Appeal was established in 2014 the 1967 Act was further amended to provide for referrals to be made to that Court in all criminal cases. The option of directing referrals to the Supreme Court was retained only for cases where the accused has been tried on indictment in the Central Criminal Court.¹⁰⁹ The Supreme Court can accept the reference if it is satisfied that there are exceptional circumstances warranting it and that the decision in question involves a matter of general public importance and/or accepting the reference would be in the interests of justice.¹¹⁰

If the referral is dealt with by the Court of Appeal there can be an appeal against that Court’s decision to the Supreme Court because, as mentioned above, Article 34.5.3 of the Constitution confers appellate jurisdiction on the Supreme Court from any decision of the Court of Appeal as long as the Supreme Court is satisfied that a matter of general public importance is involved or that an appeal is necessary in the interests of justice.

Cases Stated and Original Jurisdiction

The Supreme Court can also deal with appeals that come to it via the ‘case stated’ procedure, but with the creation of the Court of Appeal in 2014 this is likely to be extremely rare. A ‘case stated’ is where a lower court poses specific legal questions to a higher court, either during the course of the lower court’s hearing (when the process is called a consultative case stated) or after the lower court has already reached its decision in the proceedings.¹¹¹ District Courts and Circuit Courts can state cases to the High Court and until 2014 there could have been an appeal against the High Court’s ruling direct to the Supreme Court. This needed the permission of the High Court only where the case stated was a consultative one¹¹² and at no point was the permission of the Supreme Court required. Similarly, under the Courts of Justice Act 1936¹¹³ a judge of the High Court, when hearing an appeal from the Circuit Court, could state a case on a point of law to the Supreme Court and under Article 40.4.3 of the Constitution cases could also be stated to the Supreme Court whenever a detained person made an application for habeas corpus to the High Court and the High Court was satisfied that he or she was being detained under a law which was unconstitutional.

Now that there is a Court of Appeal in place for both civil and criminal appeals, rulings by the High Court on cases stated from lower courts, and cases stated by the High Court itself, are to be dealt with by the Court of Appeal rather than the Supreme Court. In theory there could be a further appeal to the Supreme Court against the Court of Appeal’s ruling but again any such further appeal is subject to the fulfilment of one of the two conditions set out in Article 34.5.3 of the Constitution, cited above. This further strengthens the Supreme Page Id: 62ReferencesConstitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34(5)(3) OCWMain Text, The Courts, Art.34(5)(4) OCWMain Text, Fundamental Rights, Personal Rights., Art.40(4)(3) OCWCourt of Appeal Act (Ireland [ie]) No 18 of 2014Pt.3 Amendments of other Acts, s.47Courts (Supplemental Provisions) Act (Ireland [ie]) No 39 of 1961Pt.V Miscelleanous Provisions, s.52Courts of Justice Act (Ireland [ie]) No 48 of 1936Pt.IV Appeals from the Circuit Court, s.38(3)(p. 63) Court’s control over its own docket and brings the Court into closer alignment with apex courts in most other common law jurisdictions.

In addition to its appellate jurisdiction the Supreme Court has ‘original’ jurisdiction in two situations. The first is under Article 12.3.1 of the Constitution, which gives the Court a role to play in determining whether the country’s President should be removed from office on account of permanent incapacity, an issue which has not arisen to date. The second is under Article 26 of the Constitution, which allows the country’s President to refer a Bill or part of a Bill to the Supreme Court for an assessment as to its constitutionality. To date Article 26 has been invoked by the President on 15 occasions and the way the Supreme Court has responded to these references is explored in detail in Chapter 6 of this book.

The Impact of the New Court of Appeal

Section 1A(4) of the Courts (Establishment and Constitution) Act 1961, inserted by section 6 of the Court of Appeal Act 2014, provides that the President of the Court of Appeal (the first person appointed to that role was Mr Justice Seán Ryan, but he retired in 2018 and was replaced by Mr Justice George Birmingham) shall be ex officio an additional judge of the Supreme Court (and of the High Court), which brings the total number of judges eligible to sit in the Supreme Court to 12.¹¹⁴ But the Supreme Court is still not required to sit en banc in any case. Likewise, under section 1A(5) of the 1961 Act the Chief Justice, at the request of the President of the Court of Appeal, may request any ordinary judge of the Supreme Court, to sit in the Court of Appeal as an additional judge thereof, and every such judge must then sit as requested. To date it does not seem that either of these situations has arisen, certainly not frequently. This may be a function of the fact that the Court of Appeal has been extremely busy since it was established and the Chief Justice has been content to let it get on with its task alone. On his first day in office Mr Justice Birmingham regrettably had to announce the cancellation of some hearings because his court did not have enough judges available to deal with them. He warned that waiting times of at least 20 months for appeal hearings will get worse unless new judges are appointed quickly to replace those who have retired or moved to other positions.¹¹⁵ In 2017 the number of new appeals lodged in the Court of Appeal (611) far exceeded the number of new appeals disposed of (470); in addition, of the 1,355 appeals transferred from the Supreme Court to the Court of Appeal in 2014, 706 were still pending before the Court of Appeal by the end of 2017.¹¹⁶

According to the Courts Service’s Annual Reports, the Supreme Court significantly reduced its backlog of ‘legacy’ appeals during 2015 and 2016, disposing of 447 and 189 such appeals respectively. By the beginning of 2017 the vast majority of legacy appeals had been disposed of, although the average length of the legacy proceedings disposed of in that year was just short of six years (2,175 days). It achieved this by allocating the task to a separate panel of the Court. Meanwhile it has made a fairly good start on the ‘new’ system of appeals: in 2016 these were being disposed of on average within 38 weeks of being lodged, but in 2017 this period had crept up to 54 weeks. In 2017 there was a 16 per cent increase in new appeals as well as a doubling of new appeals resolved. Applications for leave to appeal are flowing in too, but not at the rate of appeals lodged prior to the creation of the Court of Appeal. In the years 2015, 2016 and 2017 the Supreme Court received, respectively, 96, 152 and 176 Page Id: 63ReferencesConstitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The President, Art.12(3)(1) OCWMain Text, The National Parliament, Reference of Bills to the Supreme Court., Art.26 OCWCourts (Establishment and Constitution) Act (Ireland [ie]) No 38 of 1961s.1A(4)s.1A(5)(p. 64) applications for leave to appeal, which can now be submitted on-line. The percentage of applications granted in 2015 and 2016 was, respectively, 30 per cent and 38 per cent; the figure for 2017 is not clear from the Courts Service’s Annual Report.¹¹⁷ Interestingly, there are still a relatively high number of applications for leave to appeal directly from the High Court to the Supreme Court—22 in 2015, 28 in 2016 and as many as 61 in 2017 (this last figure represents 35 per cent of all leave applications received by the Supreme Court that year). The Chief Justice allocates leave applications to panels of three judges and, as with actual appeals, applications for leave are subjected to new case management procedures conducted by individual judges to ensure that they are disposed of both justly and efficiently. In 2015 the average waiting time for an application for leave to be decided after the papers for it were complete was 28 days; in 2016 it was just 20 days but in 2017 it doubled to 41 days.¹¹⁸

The Presumed Continuance of Pre-1922 Laws

Unlike on some other occasions when parts of the British Empire broke away and became self-governing,¹¹⁹ the Irish Free State decided to retain many of the laws which had applied in Ireland prior to partition of the island. In this regard the Canadian model was once again followed, for when the union was first formed there in 1867 the founding Act provided that ‘[e]xcept as otherwise provided by this Act, all laws in force in Canada, Nova Scotia, or New Brunswick at the union … shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the union had not been made’, subject to their being repealed or altered by the Parliament of Canada or by the legislature of the respective province.¹²⁰ A similar provision had been included in the Act which guaranteed independence to South Africa.¹²¹ According to Article 73 of the 1922 Constitution of the Irish Free State the laws already in force for the territory to be known as the Irish Free State ‘shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas’. The use of the words ‘repealed or amended’ suggests that Article 73 was intended to apply only to pre-1922 legislation, but in fact the courts of the Irish Free State treated the pre-1922 common law as also continuing in force. That is why in 1936 a majority in the Supreme Court (2 v 1) was able to treat the right of a suspect not to incriminate him- or herself as a well-established common law right but not a constitutional right.¹²² The willingness to treat decisions by pre-1922 courts as evidence of the exiting state of the law did not, however, mean that any of those decisions, even if taken by the House of Lords, had to be treated as binding on the courts of the new state. This was made clear by McCarthy J in 1983, when the Supreme Court considered a previous decision by the House of Lords but did not say that they had to follow it.¹²³ McCarthy J stressed that: ‘In no sense are our courts a continuation of or successors to the British courts.’¹²⁴

Page Id: 64ReferencesCommonwealth of Australia Constitution Act: July 9, 1900 (as Amended to October 31, 1986) (United Kingdom [gb]) 1900 c.12 (63 & 64 Vict)Main Text, Ch.V The States, s.108 Saving of State laws OCWConstitution of Canada: The Constitution Acts 1867 to 1982 (Unofficial consolidation)(as amended to December 16, 2011) (United Kingdom [gb]) 1867 c.3 (30 & 31 Victoria), 1982 c.11, Schedule BThe Constitution Act, 1867 (1867 c.3, 30 & 31 Victoria), IX Miscellaneous Provisions, General, s.129 Continuance of existing Laws, Courts, Officers, etc. OCWConstitution of the Irish Free State (Saorstát Eireann) Act (Ireland [ie]) No 1 of 1922Sch.1 Constitution of the Irish Free State (Saorstát Eireann), Transitory provisions, Art.73Irish Shell Limited v Elm Motors Limited, [1984] IR 200, 1984, Ireland; Supreme CourtMcCarthy v Lennon, [1936] IR 485, 1936, Ireland; Supreme Court of the Irish Free State (historical)South Africa Act (United Kingdom [gb]) 1909 c.9 (9 Edw VII) Pt.VIII General, s.135(p. 65) Pre-1922 legislation was deemed to be binding unless changed by the Irish Free State, but the Court of Appeal of Ireland, which ceased to function when the Supreme Court began operating in 1924, held that such a change did not have to be made expressly: it was enough if the change could be inferred from the new legislation, provided only that the new legislation was otherwise consistent with the terms of the Anglo-Irish Treaty of 1921.¹²⁵ In the case in question the result of the Court of Appeal’s conclusion was that the Indemnity Act 1923 was allowed to trump the 1922 Constitution: the latter had suggested that military courts could sit only when there was a state of war or armed rebellion (as defined in Article 6 of the Constitution) but the former provided that the decisions of military courts were valid even if the definition in Article 6 was not complied with. The Supreme Court did not disassociate itself from this imaginative approach to law-making, one that was out of step with that of other common law systems operating under a written constitution. The clearest example of the Supreme Court’s apostasy is its infamous split decision in The State (Ryan) v Lennon in December 1934,¹²⁶ which was discussed in Chapter 3 above.¹²⁷

In the context of the Supreme Court’s jurisdiction this rather carefree attitude to constitutionalism might have meant that the Supreme Court would arrogate to itself judicial powers which had not been explicitly conferred upon it by the Constitution. In fact the judges have consistently maintained a more literal and rigorous approach to their own powers, mainly because the 1937 Constitution has a lot more to say about the topic than its 1922 predecessor. It is worth noting, however, that Article 50.1 of the 1937 Constitution mirrors Article 73 of the 1922 Constitution in that it provides that the laws in force immediately prior to the 1937 Constitution coming into operation ‘shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas’. This extends to pre-1922 laws which were continued in force by the 1922 Constitution. A few years later a similar provision was to be inserted in the Constitution of India 1949, stating that ‘all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority’.¹²⁸

The Meaning of ‘Limited Functions and Powers of a Judicial Nature’

It is one thing to know which courts are to administer justice under the Constitution, but it is a different thing to know what ‘the administration of justice’ means in this context. The question is important because Article 34.1 of the Irish Constitution appears to ascribe to the lawfully established courts the exclusive competence to perform that function. Within the Constitution Articles 34 to 37 are located in a group of articles headed ‘The Courts’; earlier groups of articles are headed ‘The National Parliament’ (Articles 15 to 27) and ‘The Government’ (Article 28). Without expressly stating it,¹²⁹ the Constitution is making the point that Ireland is a nation organised in accordance with the rule of law, which is the Page Id: 65ReferencesArticles of Agreement for a Treaty between Great Britain and Ireland 26 LNTS 9, [1924] LNTSer 95Constitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The National Parliament, Constitution and Powers., Art.15 OCWMain Text, The Government, Art.28 OCWMain Text, The Courts, Art.34 OCWMain Text, The Courts, Art.34(1) OCWMain Text, The Courts, Art.37(1) OCWMain Text, Repeal of Constitution of SaorstáT Éireann and Continuance of Laws, Art.50(1) OCWConstitution of the Irish Free State (Saorstát Eireann) Act (Ireland [ie]) No 1 of 1922Sch.1 Constitution of the Irish Free State (Saorstát Eireann), Art.6Sch.1 Constitution of the Irish Free State (Saorstát Eireann), Transitory provisions, Art.73Constitution of the Republic of India: January 26, 1950 (as Amended to December 9, 2020) (India [in])Main Text, Part XXI [Temporary, Transitional and Special Provisions], Art.372 Continuance in force of existing laws and their adaptation, (1) OCWConstitutional Reform Act (United Kingdom [gb]) 2005 c.4Main Text, Part 1 The Rule Of Law, s.1 The rule of law OCWEuropean Union (Withdrawal) Act (United Kingdom [gb]) 2018 c.16s.2Indemnity Act (Ireland [ie]) No 31 of 1923McCarthy v Lennon, [1936] IR 485, 1936, Ireland; Supreme Court of the Irish Free State (historical)R (Cooney) v Clinton, [1935] IR 245, 1935, Ireland(p. 66) traditional way of describing a country where those in power are nevertheless subject to the law of the land and where the law of the land has to be applied by individuals who are entirely separate from the Parliament and the government. But Article 37.1 of the Constitution concedes that in some situations persons other than judges sitting in courts can administer justice. It reads:

One can immediately see that the creation of this exception to Article 34.1 raises two important questions: what amounts to functions and powers ‘of a judicial nature’ and when are those functions and powers ‘limited’?

The Supreme Court has had to grapple with these two questions on several occasions.¹³⁰ In doing so it has developed an approach to the judicial function which provides an insight into how the Supreme Court perceives its own role within the Irish legal system. Many of the cases have required it to rule on whether a body set up by statute and given power to take decisions affecting individuals should be allowed to continue to do so or whether the arrangements should be deemed unconstitutional and replaced. By and large the Supreme Court has been generous in allowing such bodies to continue exercising their powers because it has categorised them as being either non-judicial or judicial but limited.

The Supreme Court’s decisions based on the Free State Constitution of 1922 are not wholly germane to the position today because the provision on judicial power in that Constitution was more restrictively worded than in the 1937 Constitution. Article 64 provided that: ‘The judicial power of the Irish Free State (Saorstát Éireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided …’. In one early case, Lynham v Butler (No 2) the Supreme Court gave a comprehensive definition of ‘judicial power’, stressing that it can be exercised either in criminal cases or civil cases. Kennedy CJ summed up the position thus:

Notwithstanding this definition, the Supreme Court held just a few years later, in In re Article 26 and the Offences Against the State (Amendment) Bill 1940, that a Minister’s power to order the detention of people without trial was not an exercise of the power to administer justice and so was not repugnant to the Constitution.¹³² This was a most unfortunate, indeed almost incredible, conclusion to reach. It is explicable only in terms of the perception of the existential threat to the State which prevailed at the time.

In the Supreme Court’s leading decision on the 1937 provision, McDonald v Bord na gCon (No 2),¹³³ the issue was whether the Bord na gCon (the Greyhound Board) was exercising a limited judicial power when it exercised its statutory power¹³⁴ to discipline a Page Id: 66ReferencesConstitution of the Irish Free State (Saorstát Eireann) Act (Ireland [ie]) No 1 of 1922Sch.1 Constitution of the Irish Free State (Saorstát Eireann), Art.64Greyhound Industry Act (Ireland [ie]) No 12 of 1958Lynham v Butler (No 2), Lynham v Butler, [1933] IR 74, 1933, Ireland; Supreme CourtMcDonald v Bord na gCon (No 2), McDonald v Bord na gCon, [1965] IR 217, Ireland(p. 67) greyhound trainer by excluding him from racing tracks and greyhound sales. In holding that the Board was not exercising a judicial power, the Supreme Court explained that the consequences of the exclusion order in question did not prevent Mr McDonald from continuing to exercise his greyhound business, not least because owners of racing tracks or organisers of greyhound sales did not have to implement the exclusion order if they did not wish to. The Supreme Court suggested that there are five ‘characteristic features’ of the administration of justice, namely:

• •  a dispute as to the existence of legal rights or a violation of the law

• •  ascertainment of the rights of parties, imposition of liabilities or infliction of a penalty

• •  final determination (subject to appeal) of legal rights, liabilities or penalties

• •  enforcement of those rights, liabilities or penalties and

• •  the making of an order ‘which as a matter of history is an order characteristic of courts in this country’.

In subsequent cases the Supreme Court has held that Bord na Móna (the Turf Development Board) was not acting judicially when deciding whether to purchase land compulsorily,¹³⁵ that tribunals of inquiry set up under the Tribunals of Inquiry (Evidence) Acts 1921 and 1979 are not acting judicially,¹³⁶ that the Minister for Justice is not acting judicially when reducing fines imposed by a District Court judge,¹³⁷ and that the Institute of Chartered Accountants is not acting judicially when it disciplines its members by expelling them from the Institute.¹³⁸ But in none of these cases did the Court come up with a clearer set of criteria to characterise judicial power. The saving grace, perhaps, is that the heightened standards for what is now required in terms of fair procedures whenever bodies are exercising administrative power have diminished the consequences of holding that that power isnot judicial in nature.¹³⁹

In at least two cases the Supreme Court has held that a body wasindeed exercising judicial power and that this was not a limited power, the result being that the power was being exercised in violation of the Constitution. This occurred first in Re the Solicitors Act 1954,¹⁴⁰ where the Law Society’s power to strike a solicitor off the roll was invalidated. Legislation was subsequently enacted to ensure that members of professions could be prevented from working as such only if the High Court ordered this.¹⁴¹ It occurred again in The State (Clarke) v Roche,¹⁴² when the Supreme Court declared unconstitutional the practice whereby District Court Clerks decided if District Court summonses were properly drawn up. This was remedied by removing that power from the Clerks and transferring it to the District Judges.¹⁴³ Interestingly, no further action was taken to retrospectively validate the thousands of court summonses which had been issued prior to the Clarke case in an unconstitutional manner and no further litigation seems to have ensued on that point. By way of contrast, when it was suggested by lawyers in one case¹⁴⁴ that An Bord Uchtála (the Adoption Board) might be exercising judicial powers without express authorisation, the government of the day held a referendum to amend the Constitution to put beyond doubt Page Id: 67ReferencesBrennan v Minister for Justice, [1995] 1 IR 612, 1995, IrelandClarke v Roche, [1986] IR 619, 20th March 1986, Ireland; High CourtConstitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.37(2) OCWCourts (No 3) Act (Ireland [ie]) No 33 of 1986Dentists Act (Ireland [ie]) No 9 of 1985Pt.V Fitness to Practise, s.38Geoghegan v Institute of Chartered Accountants in Ireland, [1995] 3 IR 86, 1995, IrelandGoodman International v Hamilton, [1992] 2 IR 542, 1992, Ireland; Supreme CourtM v An Bord Uchtála, [1977] IR 287, 1977, Ireland; Supreme CourtMedical Practitioners Act (Ireland [ie]) No 25 of 2007Pt.9 Imposition of sanctions on registered medical practitioners following reports of Fitness to Practise Committee, s.74O’Brien v Bord na Móna, [1983] IR 277, 1983, IrelandSixth Amendment of the Constitution (Adoption) Act (Ireland [ie])Solicitors (Amendment) Act (Ireland [ie]) No 37 of 1960Pt.II Disciplinary Provisions in Relation to Solicitors, s.8Solicitors' Act 1954, Re, [1960] IR 239, 1960, Ireland; Supreme Court(p. 68) that no adoption made since the 1937 Constitution had come into effect was invalid merely because it did not result from an order made by a judge or a court.¹⁴⁵

Non-justiciable Questions

Just as Article 34.1 of the 1937 Constitution states that justice shall be administered by judges, and impliedly not by others, so it implies that judges must not get involved in matters others than those to do with the administration of justice. In other words, the Irish Constitution seems to suggest that some issues are non-justiciable and are better left to either the Oireachtas or the government to deal with. Liberal democracies around the world face the same problem: to what extent should they juridify their polity? Surprisingly, perhaps the most juridified state is that of Israel, where the Supreme Court will even adjudicate upon decisions taken by army generals during war time.¹⁴⁶ South Africa, too, requires its Constitutional Court to express opinions on matters which in most other countries would be regarded as beyond the competence of judges to deal with.¹⁴⁷ In the United Kingdom there is no body of settled case law, let alone any statutory provision, outlining what issues are non-justiciable, but there are countless examples of the House of Lords and Supreme Court declining to express a view on a matter because it is deemed to be the responsibility of Parliament or government.¹⁴⁸ In the USA, by way of contrast, there is a clearly articulated doctrine whereby ‘political questions’ cannot be dealt with by the courts, even by the Supreme Court—though that did not prevent the Supreme Court from issuing crucially important judgments on the constitutionality of President Franklin D Roosevelt’s New Deal legislation in the 1930s,¹⁴⁹ on whether President Nixon’s secret tape-recordings of conversations in the White House should be disclosed¹⁵⁰ and on whether the way votes were counted in Florida during the presidential election of 2000 was legal (giving victory to George W Bush rather than to Al Gore).¹⁵¹

In Ireland the Supreme Court has tended to behave in a way similar to the top court in the United Kingdom. It has been prepared to interpret the meaning of legislation even though the consequences of adopting a particular interpretation might have significant social, economic or political consequences, but it has stopped short of issuing direct orders to the Oireachtas or government to behave in particular ways in those fields unless there is clear legal backing for such an order. So, just as the UK Supreme Court was prepared to consider whether Members of the House of Commons could rely upon the Bill of Rights of 1689 to avoid being prosecuted for alleged false accounting in relation to their expenses claims,¹⁵² so the Irish Supreme Court was prepared in Maguire v Ardagh¹⁵³ to rule that, although committees of the Oireachtas could of course hold inquiries, they had no power to conduct an inquiry which could lead ‘to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of an individual not a member of Page Id: 68ReferencesALA Schechter Poultry Corporation v United States, 295 US 495 (1935), 27th May 1935, United States; Supreme Court [US]Abbeylara case, Maguire v Ardagh, [2002] IESC 21, [2002] 1 IR 385, 11th April 2002, Ireland; Supreme CourtBelmarsh Case, A and ors v Secretary of State for the Home Department, [2004] UKHL 56, [2005] 2 AC 68, [2005] 2 WLR 87, [2005] 3 All ER 169, 17 BHRC 456, 16th December 2004, United Kingdom; House of Lords [UKHL]Bill of Rights (Act) 1689 (England) 1688 c.2 (1 Will and Mar Sess 2)Main Text, Cl.9 OCWBush II, Bush v Gore, Docket No 00-949, 531 US 98 (2000), 121 S Ct 525, 148 L Ed 2d 388, 12th December 2000, United States; Supreme Court [US]Constitution of Ireland: December 29, 1937 (as Amended to September 18, 2018) (Ireland [ie])Main Text, The Courts, Art.34(1) OCWR. v Chaytor and ors, [2010] UKSC 52, 2010] 3 WLR 1707, [2011] 1 AC 684, [2011] 1 Cr App R 22, [2011] 1 All ER 805, 1st December 2010, United Kingdom; Supreme Court [UKSC]Thirtieth Amendment of the Constitution Bill (Ireland [ie]) Bill 47 of 2011United States v Nixon, Docket No 73-1766, 418 US 683 (1974), 94 S Ct 3090 (1974), 41 L Ed 2d 1039 (1974), 24th July 1974, United States; Supreme Court [US](p. 69) the Oireachtas so as to impugn their good name’.¹⁵⁴ This decision is sometimes referred to as the Abbeylara case since it involved the investigation of a fatal police shooting of Mr John Carthy in the town of Abbeylara in County Longford in 2000. Referred to by John O’Dowd as ‘one of the most controversial that the court has given in the last forty years’,¹⁵⁵ the ruling seemed to fundamentally undermine previous understandings of how Ireland was governed. Nevertheless, it chimed with the views of the majority of the population as, nine years later, in a referendum to amend the Constitution to confer greater inquiry powers on the Oireachtas, the people voted by 53 per cent to 47 per cent to reject the amendment.¹⁵⁶ An academic report which later analysed voter behaviour in the referendum concluded that the proposed change was perceived to be too great a step to take and that a widespread distrust of politicians made the people reluctant to grant them greater powers.¹⁵⁷

In recent times the Irish Supreme Court has also shown itself to be particularly unwilling to command the Oireachtas or government to adopt particular social policies. Contrary to its activism in the 1960s, which is discussed in more detail in Chapter 6, it has adopted a more conservative stance in the past 25 years. Thus, in TD v Minister for Education¹⁵⁸ the Supreme Court, by four judges to one, upbraided a High Court judge for ordering a government Minister to provide resources for secure care facilities for troubled young people. The dissenter, it is worth noting, was Denham J, who later became the country’s Chief Justice. For the majority the strongest judgment was issued by Hardiman J, who in his extra-judicial writings made no secret of his antipathy to judicial interference in what are essentially political matters.¹⁵⁹ The degree to which the Supreme Court has developed its willingness to protect social and economic rights is explored further in Chapter 6 below.

Conclusion

It is clear that for most of its history the Supreme Court of Ireland has been dogged by the handicap that it could not choose for itself which cases to hear. From 1924 to 2014 it could be accessed as of right by all manner of appellants, the result being that its workload eventually became unbearable and the time available for the production of detailed and well-crafted judgments on important legal issues insufficient. As it dealt with so few appeals in criminal cases its jurisprudence in that field suffered drastically. It also sheltered behind constitutional provisions which allowed it to presume that the common law position prevailing before partition could remain unaltered. It did not construct for itself the role which a dedicated Constitutional Court might have assumed, being too willing to confirm the Anglo-Saxon principle of parliamentary sovereignty and too timid to express opinions on questions which it deemed political. The problems became particularly apparent at the dawn of the twenty-first century, when the backlog of cases began to grow disproportionately. That the required reforms took so long to introduce is both sad and hard to explain, given that many other aspects of Irish society were radically altered during that period.

It is strongly to be hoped that the 2014 reforms will allow the Supreme Court to have a more impressive future. The new Court seems to have started well, having almost entirely disposed of the legacy appeals it inherited and being efficient in applying new case management procedures. The new Chief Justice, Frank Clarke, seems just as keen as his Page Id: 69ReferencesTD v Minister for Education, [2001] 4 IR 259, 2001, Ireland; Supreme Court(p. 70) distinguished predecessor, Susan Denham, to make the Irish court system in general and the Supreme Court in particular one of the most respected in the common law world. It may be that some of the problems which previously beset it have merely been transferred to the new Court of Appeal,¹⁶⁰ but if so there is no reason to believe that they cannot be dealt with effectively at that level too, provided the Court of Appeal is supplied with adequate resources.