The Government will recommend eight additional judges for appointment by the President in the coming weeks. Provision was made in the recent Civil Liability and Courts Bill and is intended to help the courts deal with an ever-increasing workload, writes Carol Coulter, Legal Affairs Correspondent
The appointments will be scrutinised carefully, in the context of the continuing controversy over the appointment of Judge Brian Curtin, facing the threat of impeachment after being charged with the possession of child pornography.
He was appointed by the Government although his name was already with the Garda as a suspected recipient of child pornography, as the Minister for Justice pointed out in his Dáil statement setting up a committee to examine his conduct.
Both the Government and the Judicial Appointments Advisory Board have been criticised as a result. However, given the manner in which the JAAB has been set up, it is difficult to see what it could have done.
Under the legislation, the board was set up to identify suitable people for appointment to the different levels of the judiciary, and to inform the Government of their suitability. It advertises vacant positions, processes applications and then forwards seven names to the Government.
It does not interview, although it has said it intends to do so in the future. It is a condition of applying that applicants provide a tax clearance certificate.
There are a number of flaws with this system, of which the main one is that the JAAB must submit at least seven names to the government, from which the latter then selects one for the vacant position. The fact that seven names go forward means that there is a statistical likelihood that at least half those named will have a political sympathy with the government of the day.
Not all judicial appointments are made on the basis of political affiliation, but most are. While it is generally acknowledged that those appointed do usually prove to be competent judges, it is still true that the existing system does not offer a level playing field. The screening process provided by the JAAB only ensures that those blatantly unqualified do not go forward.
The composition of the JAAB is another problem. It is overwhelmingly legal, consisting of the Attorney General, the Presidents of the Supreme, High, Circuit and District Courts, along with nominees of the Law Society and the Bar Council, and a representative of the Courts Service, himself a barrister, who acts as secretary.
It includes three lay people, nominated by the Minister for Justice, but they are inevitably overwhelmed by the legal weight on the board.
The fact that there are a lot of lawyers on it should mean candidates are known to members of the board. If a candidate presents himself or herself and has failed to impress as a solicitor or barrister, this would, it is argued, generally be known.
However, this is most likely where the applicant has practised in Dublin, and in the higher courts. If a solicitor has practised mainly in District Courts in a couple of provincial towns and is applying to become a district justice, the chances that the members of the JAAB are familiar with his or her work are slim. This is even true of a barrister working mainly on circuit.
The assumption of familiarity was clearly of no help in dealing with the candidacy of Judge Curtin. The fact that a Garda investigation was going on could not have been revealed by gardaí without them jeopardising the investigation. He had not been charged, let alone convicted, of any offence.
However, rumours concerning his personal life were around at the time and, according to evidence which came to light in the course of the trial, he was suffering from health problems, which were exacerbated by the trial. None of this appeared to have come to the attention of the JAAB. His name went forward as one of seven, and his political affiliations put him at some, if not an overwhelming, advantage.
The JAAB did recommend in its 2002 annual report that anyone about to be appointed undergo a medical examination, and this is reiterated in its 2003 report.
It does not have to be like this. The Scottish Judicial Appointments Board is evenly divided between lawyers and non-lawyers, and has strict criteria concerning non-discrimination on the grounds of gender, ethnic background, marital status, sexual orientation, political affiliation, religion and disability.
In Northern Ireland, the judicial appointments body about to be set up under the Belfast Agreement will be tasked to make a single recommendation to the First Minister, following a selection process. He can refuse to accept their recommendation, but they can send it back.
Both systems provide for more objectivity and transparency.