Shatter arguments for Court of Appeal ’incoherent’, says law lecturer

The Government’s arguments for creating a Court of Appeal are “somewhere between incoherent and incomprehensible”, a constitutional lawyer has said.

Seth Barrett Tillman, a lecturer in law at NUI Maynooth, said it was not clear why the taxpayer should pay for a new court given that Minister for Justice Alan Shatter had failed to outline any history of attempts to reduce the four-year backlog in the Supreme Court.

He was referring to an article in The Irish Times last week, in which Mr Shatter called for a Yes vote in the referendum on October 4th.

“The question of whether a Court of Appeal is meritorious has to presuppose that the judges you have right now are stepping up to the plate and trying actively to clear the backlog. Where is the evidence of it?” Mr Tillman asked.

The Supreme Court has in recent years put in place a management system aimed at reducing the duration of each hearing. Lawyers appearing before the court are also now required to summarise their arguments in written submissions lodged before the hearing. However, Mr Tillman said hearings were needlessly long and many cases could be decided on the basis of submissions alone. He pointed out that the United States Supreme Court permits 15 minutes of oral argument for each side.

“I say nothing to demean the Supreme Court of Ireland, but I don’t know that the complexity of the cases here are systematically that much harder than those in the US Supreme Court,” he said.

"The cases that come before the Supreme Court of Ireland have already mostly been adjudicated in a full trial in front of a High Court judge.

“There are narrow points of law to be asked and answered. That could all be done on paper. They don’t need most of their sittings.”

Mr Tillman said it was an “open secret” that many lawyers exceeded the 25-page limit for written submissions. He also queried the volume of judgments from the Supreme Court, saying that in April this year, just one judgment was issued by the court. He said Mr Shatter’s article did not refer to any previous attempts to ease the backlog. “There is not one institutional reform mentioned in this article except ‘we need more judges’. That makes no sense,” he said.

If passed by referendum, the new court will sit in civil and criminal divisions. It will take over the role of the Court of Criminal Appeal, which sits on an ad hoc basis and also has a backlog of cases.

Mr Tillman was critical of Mr Shatter’s observation that the Court of Criminal Appeal “lacks a clear constitutional basis”. “If the Court of Criminal Appeal is constitutionally sound, it was extremely disingenuous for him to suggest otherwise in order to make the case for the Court of Appeal.

“If he is saying this court is not 100 per cent sound, then we have a much greater emergency than a backlog of civil cases . . . We have hundreds of people in jail who don’t belong there.”

Mr Tillman said he was not commenting on the merits of the proposed court itself, but that Mr Shatter’s arguments were “somewhere between incoherent and incomprehensible. It is up to him to make the affirmative case that this society should pay for a new court.”

A spokeswoman for Mr Shatter said he was not raising a question as to the constitutionality of the Court of Criminal Appeal and pointed out that the Supreme Court in 1975 rejected a challenge on this point.