What is “Law”?
It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, etc, they are used to govern a society and to control the behaviour of members within society, so therefore, law is a recognised instrument of social control.
Explanation; Every country needs a legal system so that people can live in peace and free from worry about being attacked or imprisoned, stolen from or harmed emotionally or physically. A legal system is a guide for a group of people, cultures, and societies to live within a municipal system. The law governs how society behaves towards each other. The aim and objective of laws and regulations is to include protecting the rights of all citizens.
Brehon Law
Irish History has had a great effect on the laws of the land. Ireland has a history of bloody invasions and tyrannical reign over its people, from the Viking invaders, to the Norman invasions to the British conquests, none more so than the British invasion of the 17th Century when the old Brehon (the old name in for lawgiver) legal system was abolished by Queen Elizabeth the 1st, claiming it was barbaric and unreasonable and even barbarous. The Brehon system was overseen by representatives, these were taken from the community, they were; the chief, poet, historian, landowner, bishop, professor of literature, professor of law, a noble, and a lay vicar, it was these representatives that made and changed the laws, these laws covered every conceivable aspect of daily life in Ireland, it referred to the behaviours within each community and each community could have different laws. The richer the person the more legal standing they would have within the community, this was also held to be classless, as the Kings and High Kings would have to adhere to the laws of the Brehons the same as any menial labourer. Richer members of society were held more accountable for their actions than a poorer, if a rich farmer stole a cow from a poor farmer, his fine would be a lot more severe than if the poor farmer had stolen from the rich. In Brehon times in Ireland women were equal to men, they were Queens, led their armies into battles, they were poets, doctors and were able to bring cases against other people, it was the reign of Queen Elizabeth 1st ironically that led to the ending of Brehon laws and with them the rights of women.
An example of some of the strange and abstract Brehon laws which were in existence, (taking into account most of these laws were written down by St Patrick and when people still lived in mud huts and life revolved around the commune)
Brehon Laws; How people interacted with each other.
- February first is the day on which husband and wife may decide to walk away from the marriage.
- When you become old your family must provide you with one oatcake a day plus a container of sour milk. They must bathe you every 20th night and wash your head every Saturday. Seventeen sticks of firewood is the allotment for keeping you warm.
- No fools, drunks or female scolds are allowed in the doctor’s house when a patient is healing there. No bad news to be brought and no talking across the bed. No grunts of pigs or barking of dogs outside.
- A husband who through listlessness does not go to his wife in her bed must pay a fine.
- If a pregnant woman craves a morsel of food and her husband withholds it though stinginess or neglect he must pay a fine.
- Whoever comes to your door you must feed him and care for him with no questions asked.
Explanation; the Brehons, or ‘brithemuin’, were like the judges or jurists of today, however we can describe Brehons as being similar to mediators. Their role was to ensure a stable society by a series and system of fines, there was no prison time, nor corporal (physical) punishment, if you behaved against the rules you paid a fine, it was as simple as that. A person could go to your home and demand that you pay then what you owe them and you could not leave your home until it was paid, if you injured someone you had to pay their way until they healed, food etc. This was originally thought to be a system of barbaric rules, however on investigation in modern times Brehon law is deemed to be one of the most sophisticated of its time anywhere in Europe which was based on the theory of natural law (fair, just and reasonable) whereby people were put before property no matter what your class or how much wealth you had.
The Four sources of Irish law
Common law, Legislation, The Constitution, European Community law
Common Law
After the abolishment of the Irish Brehon laws Ireland became governed by what was then the British system of Common Law. The then queen wanted a uniform legal system, Common law was not just used by the British ruling sovereignty, This law originated with the Normans. Common law is the process whereby a body of laws arises from precedent (what went before, let it stand) the decisions in previous cases are binding on future cases of the same standing (materially similar in nature). Precedent “the doctrine of binding precedent”is also known as “State Decisis” (stand by your decision) there are many translations for stare decisis but in plain English it means, a decision of a higher court binds al lower courts.
The decision in court is divided into two distinct parts, firstly the “ratio decidendi” (the reason for the decision, the reason for the guilty or not guilty verdict) and “obiter dictum” (something said by the way, something the judge may have said, such as, in a recent Monaghan District Court hearing the Judge said that he would not be granting orders against debtors, because the banks were not negotiating with debtors to come to an agreement (Ratio Decidendi), and the banks can “go whistle for their money” (obiter dictum)). It must be noted that the obiter dictum is not binding; it is the ratio decidendi that creates the precedent which binds lower courts. Civil cases are brought by individuals against individuals and Criminal cases are brought by the DPP(Director of Public Prosecutions) on behalf of the State.
In Ireland there are some exceptions to the right of private individuals to bring a criminal case against another individual, (Any person who has a clear and unambiguous complaint against another citizen can make an application to a District Court Judge and put forward their evidence and request permission to issue a criminal summons.
The standard of proof for the issue of a criminal summons is lower than that in a DPP case and those who were summonsed would, in all essence, have to make a challenge to the proof. But, most criminal prosecutions originate by the Director of Public Prosecutions on behalf of the State. The Director is a State official but is independent of Government in the performance of his or her functions. (Informaiton Ireland, 2009)
The system of Common law in Ireland is by and for a successful one, there are those who advocate that it is staunch and unfair, others who say it is very far too strict and judges are not allowed to use their discretion when cases are significantly similar yet the circumstances are different. Others believe that helps those to have some idea of how their case will go, what the outcome may be, therefore making for a plan of action as to the outcome of their own case.
Explanation: Common law was the decisions of Judges which was written down and the decisions then recorded in the court journals. These judgements were then used so that all law in the law was “Common” or the same everywhere in the Country; this ensured that the law was consistent. Common law precedent, (previous decisions of higher courts which were binding on all lower courts) may have been overturned by a higher court, i.e. the High Court may overturn a decision of the Circuit Court. Therefore it is important that the legal representative knows the status of any precedent which may affect their client, this is why there is searches done in court journals.
Source Two – Acts of the Oireachtas or Legislation
There are two types of Legislation –
Primary Legislation: Acts of the Oireachtas – Secondary Legislation: Statutory Instruments
The sole and exclusive power of making laws for the State is vested in the Oireachtas (Parliament) subject to the obligations of European Union Membership as provided in the Constitution of Ireland. The Oireachtas consists of the President and two Houses, Dáil Eireann (House of Representatives) and Seanad Eireann (Senate). (Bills and Legislation, 2014)
All Legislation in Ireland has beginnings as a bill (a draft of the proposed law), this bill starts as either a private members bill (rare in Ireland, these bills are introduced into the Oireachtas or Seanad by a member of the government, “these rarely pass”) and public members bills.(the most common type, these are bills that would affect the populace, or the greatest amount of members of the pubic and introduced by government bodies).
Bills can be introduced in either the Dáil or Seanad. (normally the Dáil)
Once a Bill has been passed by both Houses, the Taoiseach presents a vellum copy of the Bill (calf skin), prepared in the Office of the Houses of the Oireachtas to the President for signature and declaration as a law. The life os a bill is as follows;
A Bill is a proposal for a new law or a proposal to change a law. The process of this bill as it journeys from the embryonic stages to it becoming statute is as follows;
First Reading
The structure of the bill is read out, this is just an introductory phase and no discussions are held on this. If the bill is repugnant (unacceptable, unpleasant to the Irish people or state) then for those reasons any member is allowed to ask for the proposal to be rejected, the person/s who read out the bill can then address (speak to) the dáil, and put forward their reasons why it is not repugnant. The members of the dáil then vote (seconded) as to whether they would like to see the bill introduced if permission is given then this is the bill’s first formal reading. After this stage it goes to it’s;
Second reading:
The person who’s wishes to see this bill introduced does most of their work int his stage, telling members of the dáil why this bill is needed, who it will benefit and why it should be introduced, this is also the job of the seconder. The proposer will then take questions from members regarding the bill. After this the bill is not up for voting, after this voting the bill is classed as having had its second reading. If passed at this stage it is then in what is called;
Committee Stage:
During this stage of the bill’s life every little detail of the plan of actions are dealt with in detail, each and every point, the committee discuss at great length all of the resolutions (aspects of the bill that will impact on the life of the general public), the preamble (explanation or introduction) is discussed and details for which minister will have the power to introduce secondary legislation or amendments. Members of the dáil then vote on the resolutions, the dáil committee then closes and normal business resumes. After this the bill then comes before the dáil for its final reading, it then goes to the;
Report Stage:
If there are any changes to be made to the bill they come at this stage, if there are none (changes to be made) the Bill proceeds to the third and final reading.
Final reading
This is where the committee discuss the finalisation of the bill, there can be no changes at his stage, and this is the final leg of the journey. The final text of the new bill is now ready for signing into law.
Delegated/secondary legislation
When an bill becomes law it becomes and Act, this act then confers powers on the relevant minister to make changes or amendments to the act, this means that parts inside the act can be changed without the act itself being changed, thus saving Government time, notwithstanding the financial savings of not have a whole piece of legislation go through the stages of a bill then signing into law. This is called delegated legislation. Delegated legislation means that bodies (i.e. Government agencies, Minister for Health, Minister for Transport etc) can make new law with to implement the requirements of legislation with the relevant authority.
Statutory Instruments
Secondary legislation, in the form of Statutory Instruments, is governed by the Statutory Instruments Act 1947. There are five main types of statutory instrument orders, regulations, rules, bye-laws and schemes. Secondary legislation was issued in the form of Statutory Rules and Orders between 1922 and 1947. (What is a Statutory Instrument, 2012)
Delegated legislation is a practical way to avoid overloading the Oireachtas.
Example of an ORDER:
The Road Traffic Act 2004: The Manager of a City or County Council can reduce the speed limit on a road undergoing road works for a stated period of time by executive order under powers available to him/her under the Road Traffic Act 2004.
Road Traffic Act 2004: Road Traffic (Speed Limits) (County Borough of Dublin andCounty of Dublin) (Amendment) Regulations, 1992. This authorised traffic on the M1, M7, M11 and M50 to travel at 113 km/h where signposted. This was extended to motorways in general by the Road Traffic Act, 1994. A minimum speed limit of 30 mph (48 km/h) had previously been set in 1974 through the Local Government (Roads and Motorways) Act, 1974.
Example of a Statutory Instrument
Sale of Goods and Supply of Services Act 1980: This legislation governs contracts for the sale of goods and supply of services to consumers. The Act provides that goods must be of merchantable quality, fit for their purpose and as described.
Associated Statutory Instruments:
Unfair Terms in Consumer Contracts; European Communities (Unfair Terms in Consumer Contracts) Regulations 1995, (S.I. No. 27 of 1995). European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2000 (S.I. No. 307 of 2000)
Explanation: Delegated or Secondary Legislation. Some may be referred to as Statutory Instruments, Rules, Regulations or Orders. They are used to specify requirements which were not inserted into the primary legislation, or statutes, such as commencement dates, how much a particular fine is etc. SI’s allow the provisions of the acts to be brought into force without the Oireachtas having to pass a new Act therefore saving time and money as there are over 800 amendments , SI’s, Orders or Regulations every year this would mean that the Oireachas (Parliament) would not have time to run the Country if they were to bring in over 800 new Acts per year.
Source three – The Constitution
The primary source of law in Ireland until Ireland joined the EU was the Irish Constitution. The Irish Constitution was enacted by a popular plebiscite (a vote of the common people) held on 1 July 1937, and came into force on 29 December 1937. The Constitution is a written document which governs how Ireland should be run; it documents the rights, privileges and responsibilities of the Irish citizens and State.
The Irish Constitution can only be amended by referendum (vote) of the people. A proposal to amend the Constitution is introduced into Dáil Éireann as a bill and if passed by the Dáil, once this bill is passed it is then put to the people. When the people agree to the changes to the Constitution the President signs the referendum bill into law. There laws introduced by the Constitution are called Articles, some of the major rights afforded by the Constitution are, the right to life, the right to assembly, the right to fair procedures, the right to a family life, to name a few. Article 50 of the Constitution of Ireland allowed all laws that had been in force in the Irish Free State prior to its coming into force on 29 December 1937. The president can refer any bill to the Supreme Court under Article 26 of the constitution for clarification of any terms which may be ambiguous (unclear) before signing the bill into legislation or statute law.
Source four – European Community Law
Primary Legislation
Primary legislation is the EU Treaties, which are agreed by direct negotiation between the governments of Member States. These agreements are subject to ratification by the national parliaments. These Treaties have been amended and supplemented on a number of occasions since the foundation of the European Communities; this was done by the implementation of new treaties.
The EC treaties are as follows:
1957 – The Treaty of Rome (the founding treaty)
1987 – The Single European Act (to remove trade barriers)
1993 – The Maastricht Treaty (creation of EU citizenship and EU Currency)
1997 – The Amsterdam Treaty (creation of jobs within the EU, this Treaty set out plans to be implemented by each member to tackle unemployment throughout the EU)
2001- The Nice Treaty (set out the division of power within the EU for each member country)
2009 – The Lisbon Treaty (recognised each countries responsibilities to the Human Rights Act and made it legally binding on member Countries, it made responsibility more transparent i.e. accountability for each countries actions and the impact it has on the EU)
Secondary Legislation
Laws approved by the institutions of the EU through the procedures defined within the Treaties are known as secondary legislation. European law takes the following forms:
- EU Regulations are directly binding in all Member States (binding from Europe, not Ireland, there is no need for Ireland to introduce new legislation to give effect to the new regulation as it is binding from Europe and does not need local implementation). Member States are required to introduce procedures for their implementation, such as penalties or fines. It is binding in its entirety, no member Country can decide if there are bits or pieces of the Regulation they wish to enact, they have to abide by it in its entirety (completely)
- EU Directives are binding on all Member States as to the objectives to be achieved within a certain time limit. But they are not binding in their entirety; this means it is up to each Country to enact legislation to give effect to the directives intentions keeping their own Countries requirements, i.e. a regulation for a set minimum wage in every EU Country would not be viable. For instance, if a set minimum wage was introduced into Europe as €4.50 per hour, and this was directly binding on all member states then this could cause a lot of hardship in some Countries. i.e. €4.50 per hour may be a wage that is sufficient in one Country but defiantly not in Ireland where the cost of living is so much higher, this is why the set minimum wage in Europe is a Directive, each Country has the ability to set its own minimum wage according to the cost of living. In Ireland it is presently €8.65 per hour.
- EU Decisions are binding in their entirety (Completely) on those persons/bodies/Countries that the Decisions are addressed, be it a Member State, a Country, an organisation or an individual. They do not need to be implemented into National Law.
- EU Recommendations and Opinions are not binding but express the Councils or Commissions view on policy to the Member States or to the individuals to which they are addressed. Whilst not legally binding, they have political and moral significance and can be preliminary requirements to subsequent mandatory rules.
International Agreements involving the European Union
The European Union arranges agreements with non-member countries (this is done under International Law) and with other international organisations; these range from treaties providing for extensive co-operation in trade or in the industrial, technical and social fields to agreements on trade in particular products.
An example of an international agreement is the Agreement between the European Union and Montenegro on the participation of Montenegro in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalanta) which entered into force on 1st May 2010.
What forms does Irish law take?
There are two forms of Law in Ireland, Public and Private Law,
Private Law is between individuals. private law is also known as Civil law, it is the law that regulates the behaviour of people towards each other it covers, Contract Law, Law of Torts, Family Law, Human Rights law, Land Law, Commercial Law, Company Law, The Law of Business Associations, Intellectual Property law.
Public law is between the Individual and the State and covers constitutional, administrative, criminal, and international law that focuses on the organisation of the government, the relations between the state and its citizens, the responsibilities of government officials. It is concerned with political matters, including the powers, rights, capacities, and duties of various levels of government and government officials.
Legal Principles in Ireland
Many legal principles are derived from the Judiciary but Ireland has a written Constitution as its primary source of law which makes the difference. Substantive law embraces the different kinds of legal subjects that allow for rights and obligations and liabilities. Procedural law is that which implements substantive law and encompasses civil and criminal procedure and the law of evidence. Substantive law can be divided into public law and private law. Public is that which embraces the State and its agencies. Within that there is Constitutional Law, Administrative Law (which governs the administration of the State and the operation of public authorities) and Criminal Law which defines conduct which is prohibited and provides punishment for breach of its prohibitions.
Ireland was the first recipient of the Anglo-Norman common law system while later the Norman system of courts was established by the kings justices in Westminster. The judges were the first to apply the law and punishment thereby establishing their core role within the system. In contrast, the system of law adopted on the mainland of Europe was the Civil Law System. This was based on the Ancient Greek and Roman Law Systems whereby Codes of Law contained rules applicable to all types of dispute. (The Brehon Laws, 2011)
Is it legal or moral law in Ireland?
(Law in Ireland differs from the old Brehons laws insofar as they are different type laws, The old Brehon Law system was based more on the laws of morality than the laws of the Oireachtas ”Rule of Law”). In Oireachtas laws the laws deal with the fabric of society, Oireachtas laws apply to every person whereas moral laws are applicable to those affected by them (one mans’ steak is another mans’ poison) . So you can distinguish them as a rule of morality and a rule of law. A rule of morality might say that it is wrong to be verbally abusive to an elderly person, but a rule of law would say that it is wrong to physically abusive to an elderly person, this means that it is unlikely you would go to prison for saying a horrible word to an elderly person but however you are likely to go to prison for being physically abuse to the same person.
The personnel in the Irish Courts System
There are different personnel in the courts system.
In Ireland the legal systems has to types of legal representatives for individuals, solicitors and barristers. Solicitors deal with clients outside the courts (i.e they deal with the day to day legal affairs, such as transfer of land ownership, administration of the assets of deceased persons, and general legal advice. In the higher courts, cases are normally conducted by barristers who are either junior or senior counsel. Barristers cannot deal with members of the general public and can only take instructions from solicitors.
In the Court system in Ireland you can have the following personnel;
The Judge – The judge decides the judgement in any cases, if the judge is “sitting alone” this means he has no jury and decides the outcome of the case him/herself.
Court Usher – The Court Usher is the judge’s assistant in the Court room, they are the judges personal assistant and they tell everyone to rise before the judge walks into the court room,
The Registrar/Court clerk – The court clerk is judges administration assistant, they register the judges decisions, they administer the oath, (I swear to tell the truth, the whole truth, and nothing but the truth, so help me God), they are also administrators; in essence they run the administration side of the court room. The County Registrar is also responsible for Motions of Discovery or issues arising in the service of documents.
The Master – This is the equivalent to the Registrar but the Master is in the High Court. Their role is similar to that of the County Registrar of the Circuit Court, in that he is authorised to deal with various administrative matters in civil cases
DPP – Director of Public Prosecutions – They bring a case in criminal matters for the State against an individual.(Criminal)
The Accused – This is the person who has been charged with the crime. (Criminal)
The Plaintiff (Civil) the person bringing the case
The Defendant (Civil) the person whom the case is being brought against
Solicitors – discussed above
Barristers (Counsel) – discussed above
Witnesses – Can be Gardai or other government officials, they can be members of the public also, and witnesses are called by either side to give proof to their claims.
Prison Officers (Criminal) – These are the guards that escort the accused from prison to the courthouse.
The Jury (Criminal) – 12 persons from the general public who decides the guilt or innocence of the accuse
The hierarchy and jurisdiction within the Irish court system (a basic breakdown)
District Court
The District Court is organised on a regional basis and is the lowest court in the Irish court system.
The criminal jurisdiction of the District Court falls under the following headings.
Summary offences (less serious offences) may be heard by the District Court Judge sitting without a jury.
Indictable offences which are triable summarily on the basis that:
- The Judge on assessing the charges believes that the charges are relatively minor, and
- The accused, on being informed of his/her right to be tried by a jury, does not object to being tried summarily (when a person is in court the Judge will read them the charges against them, he/she will ask does the Defendant (accused) plead guilty or not guilty, if guilty they will be set down for sentencing (a date for sentencing is arranged), if they plead not guilty the Judge will ask them if they want to be tried by the judge alone or before a judge and jury, if the Defendant opts for trial by judge only this is an indictable offence tried summarily).
Indictable offences not triable summarily, that is, cases that must be heard by a judge and jury. In these cases, the accused is served with a “Book of Evidence”, i.e., a statement of the charge and of the evidence intended to be introduced to the court and a list of witnesses and exhibits. (Citizens Information, 2014)
The Structure of the District Court in Ireland
The District Court was established in 1961. The currently President is Judge Rosemary Horgan and 63 ordinary judges. There are 24 Districts in Ireland, including the Dublin Metropolitan District, each with its own court being presided over by a judge sitting alone (that is, one judge, no jury).
Function & Jurisdiction
The District Court hears civil and criminal which are relatively minor.
District Civil Court
In civil cases, its monetary jurisdiction is limited to €15,000, meaning that that is the maximum award a judge can make in respect of a civil case. These cases are usually in Contract or Tort. It has the jurisdiction to grant liquor and lottery and competition licences, and can hear certain family matters, including issues relating to maintenance, which is limited to €150 per week per child, and €500 per week in respect of a spouse, access and guardianship, and can grant Safety Orders and Barring Orders, issues pursuant to the Control of Dogs Acts, applications to have birth and marriage certificates amended and applications for noise reduction orders under the Environmental Protection Act 1992.
District Criminal Court
In criminal matters, its jurisdiction is limited to cases which a judge sits alone, (there is no jury) the maximum penalty is 12 months’ imprisonment for one offence or 24 months for two or more offences. Again, the maximum penalty is 12 months’ imprisonment for one offence or 24 months for two or more offences. Cases in the District Court are those that are non-jury trials of minor offences which include most road traffic offences, TV licensing offences and parking fines, these are called Summary (or less serious) offences.
There are some Indictable (more serious) cases that cannot be heard in the District Court, including, rape, treason, murder, aggravated sexual assault, and piracy, which can never be heard in the District Court and must be referred up to the Circuit Court or the Central Criminal Court.
In respect of offences, the District Court Judge will be presented with the Book of Evidence, the prosecution and defence will present their submissions including bail applications, before deciding whether there is a sufficient case to answer. If so, the accused will the sent forward for trial to the Circuit Court or the Central Criminal Court, depending on the severity of the offence.
Appeals
There are, essentially, two types of appeal: a de novo appeal, and an appeal on a point of law.
De novo Case
When a de novo appeal is granted it means that the case is completely re-heard from the beginning by a higher court. For District Court cases, all de novo appeals are heard by the Circuit Court. The Circuit Court’s determination is final and cannot be appealed.
On a point of law
These are heard by the High Court, and can occur either during the case (referred to as a “consultative case stated”) or after the case has been heard in full (referred to as “an appeal by way of case stated”). In such appeals, the High Court is only concerned with the legal issues and not in the findings of the District Court.
An example of this would be where there was some confusion as to the meaning of a particular law (legislation). If this was the case, the matter could be sent to the High Court to clear up any ambiguity. Once the matter is cleared up it is sent back to the District Court so that the case may continue, or so that any relevant changes can be made to the ruling.
Judicial review
While not essentially an appeal, there is also a remedy called judicial review. In the District Court, this means that, where a person believes that a judge or other government agency has acted in excess of the powers conferred on them by the rules (Ultra Virus) or contrary to its duty, that person can query or challenge that action in the High Court.
The Circuit Court in Ireland
The Circuit Court comprises of 37 ordinary judges and is presided over by Mr. Justice Raymond Groarke.
There are 8 Circuits in Ireland – Dublin, Cork, Eastern, South Eastern, Western, South Western, Northern, and Midlands. Dublin and Cork are the only permanent courts throughout the year. There are 10 judges assigned to the Dublin Circuit Court, and 3 to the Cork Circuit Court, the rest are divided between the remaining Circuit Courts. It also acts as an appeal court from the District Court. In criminal cases the Circuit Court is presided over by a judge sitting with a jury of twelve persons. In civil cases the Court is presided over by a judge sitting alone.
Function & Jurisdiction of the Circuit Court
The Circuit Court hears civil and criminal cases in a variety of matters which also include de novo appeals from the District Court.
Structure of the Circuit Civil Court
The monetary jurisdiction in the Circuit Court is currently limited to where the claim does not exceed €75,000.00 and personal injury cases where the claim does not exceed €60,000, this means that that is the maximum monetary award that a judge can award when hearing a civil case. The Circuit Court deals with all breach of contract, property damage cases, family law i.e. judicial separation, divorce, nullity, and all ancillary matters i.e. family law matters which can have secondary awards such as property division, land division, legal fees etc.
Structure of the Circuit Criminal Court
The Circuit Court has a wide jurisdiction in respect of criminal matters. It deals with all indictable offences which are sent forward from the District Court, however there are some exceptions, including rape, murder, aggravated sexual assault, treason, and piracy. These cases must be heard in the Central Criminal Court.
Appeals
Apart from hearing appeals from the District Court, the Circuit Court can also hear appeals from decisions of the Labour Court, the Unfair Dismissals Tribunal, and the Employment Appeals Tribunal.
There are in essence two types of appeal available to those whose judgements are in the Circuit Court: a de novo appeal, and an appeal on a point of law.
De novo
When a de novo appeal is granted it means that the case is completely re-heard from the beginning by a higher court. For District Court cases, all de novo appeals are heard by the High Court. For criminal cases, all de novo appeals are heard by the Court of Criminal Appeal. Determinations of the High Court and the Court of Criminal Appeal are final and cannot be appealed.
On a point of law
These are heard by the High Court, and can occur either during the case (referred to as a “consultative case stated”) or after the case has been heard in full (referred to as “an appeal by way of case stated”). In such appeals, the High Court is only concerned with the legal issues and not in the findings of the Circuit Court.
An example of this would be where there was some confusion as to the meaning of a particular law (legislation). If this was the case, the matter could be sent to the High Court to clear up any ambiguity. Once the matter is cleared up it is sent back to the Circuit Court so that the case may continue, or so that any relevant changes can be made to the ruling.
Judicial review
While not strictly an appeal, there is also a remedy called judicial review. In the Circuit Court, this means that, where an individual is of the belief that a judge or other government agency has acted in excess of its jurisdiction (Ultra Virus) or contrary to its duty, that person can query or challenge that action in the High Court.
The High Court in Ireland
The High Court of Ireland has full original jurisdiction the power “to determine all matters and questions whether of law or fact, civil or criminal”. It can decide the validity of any law, having regard to the provisions of the Constitution.
Structure of the High Court of Ireland
The High Court is presided over by the Honourable Mr. Justice Nicholas Kearns and 36 ordinary judges. In Civil cases one judge sitting alone usually presides over the proceedings, but in some cases of defamation, assault and battery, false imprisonment, and malicious prosecution all require a jury. There are times for instance when there is a case of national importance i.e. the constitutionality of a new bill, the High Court will sit with three judges. The High Court hears appeals from the Circuit Court in civil cases. There are no juries per se in civil cases in the High Court with one exception; this exception is in libel cases where the case will be decided by a judge and jury.
The High Court is based in Dublin but a division of the High Court sits in several provincial locations such as Cork, Galway, Limerick, Waterford, Sligo, Dundalk, Kilkenny and Ennis at specified times during the year to deal with personal injury cases and appeals from the various Circuit Courts in civil and family law matters.
Function & Jurisdiction of the High Court of Ireland
The High Court has full original jurisdiction, there is no local or limited jurisdiction. It can hear any cases for any amounts.
The High Court also hears de novo appeals from the Circuit Court in civil matters (criminal matters being heard by the Court of Criminal Appeal), and appeals on a point of law from the District Court.
Structure of the High Court of Ireland
The High Court of Ireland also hears a variety of commercial issues, including applications to wind up a company, and bankruptcy matters. Other common types of cases to come before the High Court include personal injuries, defamation, and contract cases. Further, the High Court can hear judicial review applications in respect of government bodies, various tribunals, and even decisions of lower courts.
On the whole although the High Court can hear any case as it has original jurisdiction claims of over €75,000 are usually dealt with in the High court, this has to do with practicalities and costs.
Structure of the High Court – CRIMINAL – (Central Criminal Court) of Ireland
Where criminal matters are concerned, the High Court is referred to as the Central Criminal Court, or the Criminal Court area of the High Court. This court only hears cases of a more serious nature which the lower courts cannot deal with lower courts. Examples include murder, rape, aggravated sexual assault, treason, and piracy.
Appeals in the High Court of Ireland
Appeals in Civil cases
An appeal from the High Court in civil cases can only go to the Supreme Court on a point of law. There is no trial in the Supreme Court therefore there are no de novo appeals from the High Court.
Appeals in Criminal cases
All appeals from the Central Criminal Court are heard by the Court of Criminal Appeal. Such appeals can be in respect of conviction, sentence, or both, both The DPP and the Defence can make an appeal on the sentence.
The Special Criminal Court in Ireland
The Special Criminal Court was set up under the Offences against the State Act 1939 and sits with no jury. The cases it can deal with are limited and usually Terrorism or Gangland.
There is no Jury in this court and is presided over by three judges, these three judges are taken from a pool of 11 judges which are chosen from the High, Circuit and District Courts. Appeals from the Special Criminal Court against conviction or sentence are taken to the Court of Appeal.
The Court of Appeal in Ireland
The Court of Appeal, came into existence on 28th October 2014, it was established by theCourt of Appeal Act 2014, the Court of Appeal which sits between the High Court and the Supreme Court.
The Court of Appeal is composed of a President and nine ordinary judges. The Chief Justice and the President of the High Court (The Honourable Mr Justice Sean Ryan) in addition to the President, the Court will comprise nine ordinary judges. Six High Court judges have been nominated for appointment to the Court, namely Mr Justice Peter Kelly, Ms Justice Mary Finlay Geoghegan, Mr Justice George Birmingham, Ms Justice Mary Irvine, Mr Justice Gerard Hogan, and, Mr Justice Michael Peart. The remaining three positions have yet to be filled by the Judicial Appointments Advisory Board.
Some interlocutory and procedural applications may be heard by the President alone or by another judge nominated by the President. The Court of Appeal will be a automatic appeal court from the High
Appeals in civil proceedings
The Court has jurisdiction to hear appeals in civil proceedings from the High Court which would have been heard by the Supreme Court prior to the introduction of the Court of Civil Appeal.
It is possible to bypass the Court of Appeal or ‘Leap Frog’ an appeal to the Supreme Court., however permission from the Supreme Court to bring a Leapfrog Appeal must be obtained, this is not an automatic entitlement and will only be granted if the Supreme Court is satisfied that (i) the High Court decision involves a matter of general public importance; and/or (ii) the interests of justice require that the appeal be heard by the Supreme Court.
[1]
The Court can hear appeals from cases heard in the High Court about whether or not a law is constitutional. The Constitution provides that no laws may be passed restricting the Court of Appeal’s jurisdiction to do this.
Appeals in criminal proceedings
Under the Court of Appeal Act 2014, the Court of Appeal was given the appellate jurisdiction previously exercised by the Court of Criminal Appeal.
Criminal Appeals from the Circuit Court or Central Criminal Court who require a certificate from the trial judge that the case is a fit one for appeal now lie to the Court of Appeal. If this certificate is refused, the Court of Appeal itself, on appeal from this refusal, can grant leave to appeal. In addition, the Director of Public Prosecutions may appeal a sentence on grounds of alleged undue leniency under section 2 of the
Criminal Justice Act 1993. An alleged case under miscarriage of justice, an appeal can be lodged under section 2 of the
Criminal Procedure Act 1993.
[2]
The Court of Appeal was also given jurisdiction to hear appeals by the Director of Public Prosecutions on a question of law arising out of criminal trials which resulted in an acquittal. The decision of the Court of Appeal does not affect the acquittal verdict in such cases.
Appeals by the Director of Public Prosecutions against an acquittal or against a decision not to order a retrial also lie to the Court of Appeal.
Courts-Martial appeals
Under the Court of Appeal Act 2014, the Court of Appeal was given the appellate jurisdiction previously exercised by the Courts-Martial Appeal Court. This means that appeals from people who have been convicted by a court-martial now lie to the Court of Appeal.
Cases stated
Questions of law which could previously be referred by the Circuit Court to the Supreme Court for determination (a ‘case stated’) are now determinable by the Court of Appeal.
Appealing decisions of the Court of Appeal
Unless under very limited circumstances all decisions in the Court of Appeal are final, except in the following limited circumstances whereby permission can be sought from the Supreme Court to hear an appeal under Article 34.5.3 of the Constitution where:
- the decision of the Court of Appeal involves a matter of general public importance;
- and/ or
- (ii) the interests of justice require that a further appeal be heard by it.
The Supreme Court In Ireland
The Supreme Court sits in the Four Courts in Dublin. It consists of the President or the Chief Justice, her Honour Ms. Justice Susan Denham and 7 ordinary judges. The Court hears appeals from the High Court and the Court of Criminal Appeal. The Court has the power to decide if the provisions of any statute are repugnant to the Constitution should the President refer such provisions to the Court prior to the statute being enacted.
In procedural matters or minor cases, three judges sit. For matters involving a constitutional challenge to a statute, or where an important question of law arises, five judge’s sit, the Supreme Court can be requested to review a Bill referred to it by the President as to whether or not such a Bill is repugnant to the Constitution, if this event takes place then seven judges sit. Where there are applications for the appointment of Notaries Public and Commissioners for Oaths, or for case management lists the Chief Justice can sit alone.
Appeals
The main day-to-day business of the Supreme Court is to hear appeals from the High Court, and cases stated from the Circuit and High Courts. The Supreme Court can hear cases referred to by way of a case stated from a judge of one of the lower courts (i.e where a question of law arises in the lower courts and there is a request that the question should be submitted to the Supreme Court for its opinion)
The Supreme Court does not hear the evidence of witnesses as there is no witness box in the Supreme Court. Appeals are heard on the basis of the documents that were before the original court and a transcript of the oral evidence that was given in the original court and, where the trial judge approves them, legal counsels’ notes of the evidence.
Decisions of Judges in the Supreme Court
Decisions are made based on a majority ruling, though each judge is entitled to deliver a separate judgement, regardless of whether or not it agrees with the majority ruling. There are two exceptions to this – where deciding on the validity of a law or on the constitutionality or otherwise of a Bill, the majority decision is the only one pronounced.
These decisions are sometimes given ex tempore (immediately). There are times however when Judges reserve the right to reserve its decision pending consideration of the facts whereby they will deliver their decision at a future date.
Proceedings in a Court of Law (Criminal)
The District Court hearing is not a very complicated trial process.
1. Person is arrested, charged and brought before the court where bail is usually given or accused remanded in custody to next court date; alternatively, accused can be summoned to appear before the court on a specified date;
2. Person usually instructs solicitor who will apply to District Court judge for a Gary Doyle order looking for production of all witness statements in advance of trial;
3. case adjourned for hearing on a specified date (or for mention for a hearing date);
4. Assuming no problem with witness availability matter proceeds on hearing date.
5. State Solicitor/DPP Solicitor/prosecuting guard/Local superintendent (depending on court location and prosecution practice) will present the case and call relevant witnesses who will include injured party, anyone who witnessed alleged assault and investigating guard. If any video evidence, photographs or statement of admission by accused then various technical witnesses also required. Medical evidence may also be given by a doctor who treated the injured party, but my own experience is that injured party generally describes his/her injuries.
6. These witnesses will be cross-examined by Defendants solicitor, who will put defendants case to injured party and any witnesses with whom defendant disputes facts.
7. Defendants solicitor may seek a direction to have case dismissed on basis that offence has not been proven – e.g. doubt over identification of accused as assailant.
8. If Judge rules that there is a case to answer then Defendants solicitor will call witnesses considered relevant to defendants case (including the defendant).
9. These witness(es) are cross-examined by the prosecution.
10. Judge then makes a determination. If found guilty, accused can be fined and/or sentenced up to 12 months in prison. Often injured party will also be bringing a civil action and his/her solicitor is in court doing a watching brief. Judge will often look to adjourn case for sentencing and to allow accused to pay compensation to injured party.
11. Any sentence and/or fine can be appealed to Circuit Court. Any error in law or unfair procedure or prejudicial comment by the Judge can be judicially reviewed. Time limits govern both processes. (Askar, 2008)
