Radical overhaul of judiciary announced as report recommends up to 108 extra judges

The Government plans to appoint 24 additional judges this year but has linked any further extra appointments to a radical overhaul of how the judiciary and the courts work.

Minister for Justice Simon Harris announced the move as his department published two top-level reports suggesting Ireland may need up to 108 extra judges over the next five years. The exact number will not be clear until a major reform programme has been progressed.

The Judicial Planning Working Group, comprising senior public servants, was established by Minister Helen McEntee in 2021 to carry out the first in-depth assessment here of judicial requirements over the next five years and into the longer term.

Its report makes more than 50 recommendations for change in court and judicial work practices, including five-day weeks across all jurisdictions, longer courtroom sittings, shorter vacations, better case management and the urgent introduction of a modern IT system.

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An independent parallel study commissioned by the Department of Justice from the Organisation for Economic Co-operation and Development (OECD) described the experience of court users as “poor, due to costly, complex and often delayed services, cases and processes” and proposed a wide range of measures to address this.

The current information communications technology architecture is “not fit for purpose, putting day-to-day court business at risk, limiting access to data and reducing governance and management effectiveness”, the OECD said. “Operations are dated, complex and inefficient.”

The reports come as the courts continue to battle with case backlogs exacerbated by the Covid-19 pandemic.

Persons in custody awaiting trial before the Central Criminal Court on rape and murder charges face an average wait of 12 months for a trial date and those on bail can wait up to two years. In Dublin Circuit Criminal Court, those on bail awaiting trial face a wait of up to 27 months compared to a 12/15 month wait pre-Covid. Those in custody, or priority cases, can expect a trial date within six months.

Substantial backlogs

Both reports, and the Government’s commitment of more judges and resources to advance the Courts Service modernisation programme, were welcomed in separate statements issued on behalf of the judiciary, the Courts Service, the Law Society and the Bar of Ireland. Bar Council chair Sara Phelan said some recommendations will have to be closely examined in light of access to justice and other issues.

The Government response “is a real and tangible recognition of the fact that a functioning justice system is not a luxury but is a critical component of a modern liberal democratic society which is founded on the rule of law”, the Chief Justice Donal O’Donnell, and the presidents of the Court of Appeal, High, Circuit and District Courts said in a statement.

Mr Harris, announcing the appointment of 24 additional judges in 2023, and possibly 20 more next year, said the implementation of those and other recommendations of the Judicial Planning Working Group (JPWG) will be the “most significant reform” of the courts in the last century, appropriately marking the centenary next year of the Courts of Justice Act 1924.

The appointments are aimed at helping the courts reduce substantial backlogs, particularly affecting criminal and family law lists, and to further the Government’s prioritisation of a new environmental and planning court and specialist family courts.

Of the 24 additional judges, the Court of Appeal will get two and the High Court six. The District and Circuit Courts will each get eight.

In line with the JPWG recommendations and subject to review, another 20 additional judges may be appointed, which would increase the total number of judges from 173 to 217, the Minister said.

An estimated 255 Courts Service staff, including some 100 court registrars, currently support the judiciary.

[ ‘Large-scale change’ needed in court, judicial workings to achieve efficient system - report ]

Speaking at a conference on Friday hosted by a working group of the Chief Justice concerning access to justice and the review of the civil legal aid scheme, Mr Harris noted the JPWG report, and the OECD study, make clear that a substantial programme of change and improvement initiatives is needed alongside additional judges.

“I understand conversations have started in this regard, which is welcome, and an action plan will be published later this year.” Reforms indicated in the JPWG report included tackling the high cost of litigation and extended timeframes invoked in legal cases, he noted.

“It is vital that fair and equal access to justice is a reality for everyone – not just those with the privilege of means or education.”

The JPWG report says that appointing a significant number of additional judges up to 2028 would require more support staff and services, meaning substantial funding implications, for which the Courts Service should be adequately resourced.

Five-day weeks across all court jurisdictions; longer daily court sittings to maximise use of limited courtroom resources; shorter court vacations; more use of quasi-judicial and non-judicial officers and alternative dispute resolution mechanisms; and better case management, IT and data collection and management systems could all contribute to achieving the “large-scale” change required, it says.

Noting the Courts Service has embarked on a modernisation programme, incorporating a three-year digital strategy, the JPWG says the use of IT to underpin case management reforms is “vital”.

Once sufficient judges are in place to enable it, all courts should move to scheduling trials over a longer working year, with any period of court closure limited to some days in December and a “short period” in summer. Scarce courtroom resources could be maximised through longer daily court sittings, perhaps with one judge sitting from 9am to 1pm and a second judge sitting from 2pm up to 6pm in the same courtroom, it says.

“Additional judicial resources are required but, unless all of the inter-linked structural issues are addressed, adding more judicial resources to an overburdened system will not provide an effective and efficient court system,” it notes.

There should be a further review in early 2025 of judicial resource requirements up to 2028, the report recommends.

Subject to review and resources, further assessment of need and changes in work practices, Ireland may need the phased appointment of between 60-108 extra judges by the end of 2028, the report says. The cost of appointing 24 this year, including salaries, allowances, support staff and chambers, was estimated at €18 million a year, and an additional 20 will cost a further €15.3 million a year.

Shortfall of judges

The total cost over five years of an additional High Court judge was estimated at €5.3 million, comprising €2.6 million for the judge, €687,767 for a registrar, €287,164 for judicial assistance and €1.7 million “other” costs. The figures include pay and projected pension costs but exclude capital expenditure or additional accommodation costs.

The total central fund allocation in respect of the judiciary in 2021 was €30.8 million.

The OECD concluded Ireland has a shortfall of judges and suggested a likely need for an extra 36-108 judges as well as more support staff for judges and court operations, more streamlined court operations and a long-term strategy for the judiciary at every level. It particularly stressed an “imminent” need for a strategy to handle backlogged cases.

The Irish judicial system continues to be seen as costly and many cases still take a long time to be decided by the courts, the OECD said.

Procedural, operational and organisational improvements and investment to modernise case management and IT infrastructure could make the courts more efficient and thus reduce the number of extra judges required, it said.

Both the JPWG and OECD reported their work was hampered by limited court systems for the collection and use of data and cautioned the data deficits may affect their conclusions.

The reports come after the European Commission for the Efficiency of Justice, part of the Council of Europe, reported last year that Ireland has the lowest number of judges, 3.27 per 100,000 population, in Europe. The mean number was 17.6. Ireland’s spending per inhabitant on courts was €31.10, below the European median of €43.53.

The courts’ workload will be substantially increased by some legislative developments, including the Assisted Decision-Making Capacity Act and the establishment of the new planning court and specialist family courts. Government departments should assess the potential impact on the courts of legislative developments, the JPWG said.

Other recommendations of the JPWG include a possible reconfiguration of court districts, steps towards making the judiciary more diverse, and the introduction of human resources management and support functions for judges and holders of quasi-judicial offices.

While the judiciary had sought to have the retirement age of 70 extended, the JPWG said 70 is in line with the position elsewhere in the public service and recommended no change.

Latest figures show the number of family law cases in the Circuit Court has risen well above pre-pandemic levels, with incoming applications in 2021 some 20 per cent higher than in 2019.

Waiting times marginally increased across Circuit Court family law and civil cases in the nine months to June 2022. There was considerable variation in waiting times for contested family law cases across different circuit courts in 2021, ranging from the next court sitting day in Carlow to 26 weeks in Portlaoise.

Waiting times in the District Court for domestic violence applications ranged in 2021 from a same day hearing in Dublin or the next sitting day in several counties up to 26 weeks in Nenagh. Applications for guardianship/maintenance faced waiting times in 2021 ranging from the next sitting days in Sligo and Carrick-on-Shannon to four weeks in several counties and up to 32 weeks in Naas.

At the end of September 2022, there were 408 civil and 371 criminal appeals pending before the Court of Appeal, with an average waiting time of 24/25 weeks.

The JPWG report noted litigation in the High Court has become more complex for reasons including EU membership. There is a general increase in waiting times across all High Court lists but most cases deemed urgent are speedily dealt with.

Urgent family law cases are quickly dealt with but the average time from starting family law proceedings to a hearing extends from three months to three years. Current waiting times for a hearing of planning/environmental cases range from four to eight months from when the case is deemed ready for trial.

Ordinary personal injury cases are heard within nine weeks of being deemed ready for trial and specially fixed cases within eight months. The waiting time for commercial cases deemed ready for trial is seven months but procedural issues can take four to 20 months to address prior to that.