Status of judges is being denigrated – and it will not end well

The practicing barrister and former minister for justice, Michael McDowell, has suggested that the reduction in judge’s pay is inhibiting the best candidates from becoming judges.

Moreover, he says that a tipping point has been reached and that the quality of the bench is actually suffering. A recent article in this paper (peppered with colourful – but anonymous – quotes from barristers) provided some support for that view. Such off the record comments must be viewed with caution, not least because some critics may be harbouring a sense of grievance that their own munificence has not been adequately recognised.

There have always been rude and bad-tempered judges full of prejudice who do not make any real effort to engage with the cases before them. So too, perfectly pleasant judges who are incompetent. The saver is, the incidence of such has always been low. The Government could appoint people who mirror even more closely their own mindset. But a homogeneous bench where individuality and personality is stifled is unhealthy too.

The selection process, which is steeped in political patronage, is an embarrassing anachronism and must be overhauled. But some worry that an independent appointments board would quickly metamorphose into something, which was never intended. Others believe that the informality of the present system allows for heading off candidates unsuited to the task in a way a formal appointment scheme would not.

Irish America is facing an unnecessary death

---

‘The Disappeared’: search for closure goes on

---

Egypt: Islamic State fans flame of sectarianism

---

Noel Dorr: Arguments for Ireland leaving EU do not add up

---

A person of McDowell’s experience and stature would not say what he said lightly. It is still hard to gauge accuracy of his remarks. There is for instance no time and motion study available to measure output or the quality of decisions handed down. And, the empirical evidence is equivocal.

Strong bench

For instance, many of the 24 High Court positions filled since 2013 have been drawn from the ranks of the criminal bar. Feedback has been almost universally positive. The pool of judges that operate in the Courts of Criminal Justice, at Circuit Court and Central Criminal Court level – where I work – are very effective. There is no sense that standards have fallen. If anything, there is a particularly strong bench at present.

Practitioners at the top of the profession can earn more at the bar but many still relish the prospect of a new challenge, a last opportunity to re-invent oneself, and a chance to put something back in. The allurement of being able to write seminal judgments on important issues and leave the sort of indelible mark that will outlast anything they have done in practice is also strong.

A judge must listen carefully to arguments, have empathy and be able to contextualise information and, most importantly, reach a decision. Many lawyers can comfortably argue the respective merits of a case but are hopelessly indecisive when it comes to deciding what is actually correct. Some of the most rounded judges did not have large practices. Quantifying the effects of the so-called “brain drain” is difficult.

The workload of a judge has increased dramatically. There is a huge body of new law, much of it imposed by virtue of our EU membership. Life is more complex and we live in a rights-based society. A judge dealing with such cases will need to write a judgment usually outside court hours. But in the meantime he or she will continue to hear more and more cases. A person who demonstrates a penchant for this work is often rewarded with more of it.

At present a High Court judge earns approximately €200,000 per annum, about €115,000 after tax

A senior judge who was a prolific writer of judgments involving complex issues was once asked on the opening day of term how he was doing on reserved judgments. He replied that he had 25 outstanding in the immigration area. The surprising aspect was that he was not renowned for hearing cases in that area.

Some High Court judges opt to do criminal cases. Here a judge is confined to legal rulings on the admissibility of evidence and charging the jury on the law. Most days one can finish at five. The most difficult part of the case – the decision – is actually vested in juries. The downside is that there is a daily diet of murder rape and child sexual abuse.

Judicial salaries received a shot in the arm during benchmarking. Those gains were largely reversed during austerity, which precipitated a referendum, which allowed the Government to reduce a judge’s salary.

Assaulted

At present a High Court judge earns approximately €200,000 per annum, about €115,000 after tax. Mortgage, health insurance, school, or college fees, car loan, groceries and a couple of well-earned holidays will make inroads. It’s significantly less than a busy practitioner earns in private practice.

It is premature to talk about crisis but there are signs of tangible damage. Personal litigants have become more aggressive. Last year a judge in a family law case was assaulted by a man against whom she was asked to make a barring order. A recent round table discussion at the law reform commission on contempt of court was packed with judges who expressed concerns about their personal safety.

The article in this newspaper highlighted how certain judges who wanted to use a clothes allowance to buy a laptop were not allowed. Some judges are anxious to be “on the DAR” (the digital audio recording system) for 11.00 sharp, conscious that start times are being monitored by Court Services. I have heard more recent entrants (who have less attractive conditions) referred to as “yellow pack”.

All of this would have been unthinkable a few years ago. There is a real sense that the status of a judge is being denigrated. It will not end happily.

Michael O’Higgins is a senior counsel