Ex-judge's concept of court `informality' criticised

The informality described by Mr Hugh O'Flaherty in his dealings with legal procedure is not the norm, according to senior legal…

The informality described by Mr Hugh O'Flaherty in his dealings with legal procedure is not the norm, according to senior legal figures.

Mr P.J. Fitzpatrick, chief executive of the Courts Service, stressed that the practices and procedures followed in the Court of Criminal Appeal were not informal, and that applications were processed in line with court rules.

"The Courts Service is responsible for the processing of applications. The way in which they are progressed through the system is very much for the rules of court.

"In the Court of Criminal Appeal, to which Mr O'Flaherty referred, a notice of application for leave to appeal is lodged within 21 days of the order. If it is not lodged in time the applicant may seek an extension, and files notice of appeal.

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"The office will notify the prison, the gardai and the Chief State Solicitor. It will then assemble transcripts, and when all the documents are assembled it is listed before the judges of the Court of Criminal Appeal. This is the first time it goes before them, and they allocate dates. That list is dealt with by the judges.

"If the appeal is against conviction, more time will be allocated than if it is against sentence. They sit every Monday, and there is a call-over on Friday to confirm that cases are going ahead on Monday.

"If there is any application - like having the case dealt with quickly - it is listed for mention on Monday, both parties are informed and it is in the Legal Diary. Any application is heard by the judges in open court."

Neither the Law Society nor the Bar Council was prepared to make a statement on the latest developments. Nor were members of the judiciary, including the former and present Chief Justices, Mr Liam Hamilton and Mr Justice Keane, prepared to comment on how what Mr O'Flaherty described compared with normal court practice.

But various senior legal figures, who spoke off the record, said that, while Mr O'Flaherty was known for his own accessibility and for his pragmatic approach, other judges were not similarly accessible.

If asked for their advice on a legal matter, they would generally advise the person to speak to a solicitor. At the most they might indicate which solicitors specialised in certain areas.

Mr O'Flaherty said he did not believe judges should live in "an ivory tower", and there is ample testimony to his accessibility. But access to justice is not the same thing as access to judges, and requires transparent rules which apply to everyone.

"Both as a barrister and as a judge he was forever talking to people and assisting them," said one barrister who knew him. "He was the sort of person to whom people had recourse. He would often ring up a solicitor. People would turn up to his chambers and he would see them. Most people would not have a chance of getting near a judge.

"He always took an easygoing attitude, even to the principles of the law and their application," said another senior counsel. "He had a huge desire to do the right thing, but he took the practical way out, which could be intellectually sloppy."

But neither he nor any of his colleagues contacted by The Irish Times felt any other judge had a similarly informal attitude, nor was an "ad-hoc" approach to listing acceptable. "I don't think it's possible for judges to go around fixing things on the lists. I don't think any of his brother judges did it," said another senior counsel.

"As barristers, we would not be aware of any system of going to have a chat with a judge and things would be fixed up. You do your case in open court and in public and that's the way it always has been." It is true, according to a leading criminal lawyer, that there was a degree of informality about seeking early dates. "I would just go in to the judge and ask could the case be listed for the next day, and the other side notified, and it would be," he said.

However, this would be done by him, as counsel in such a case, in open court and all concerned would be notified and free to object. There is a major difference between this and a Supreme Court judge uninvolved in the case getting a case re-listed in informal conversation with a court official.