Referendum on Supreme Court Appeals

Piliger

I just heard that we will have yet ANOTHER referendum this autumn because the Supreme Court cannot cope with the number of appeals being made.

I won't get in to the nonsense our Constitution has become - that's for another thread.


What I am wondering is:

a) Why is a referendum needed ?

b) Does our SC have the discretion to accept an appeal or reject it and pass it back to the High Court, as they do in the US ?

Hootanany

Can we have one that cuts outrageous pension as well with this one.

trashcan

The situation with SC appeals is just crazy. I have some experience of this in my work, we have a case in the SC since 2006 and no hearing date yet. unlikely to get one this year either. Someone described it as unsustainable and I think they're right.

Procrastastudy

The SC does not control it's own docket as the US SC does. The US SC in 2007 heard 74 cases, the Irish SC heard 229. We have the smallest number of judges in the common law world and the cheapest legal system to the tax payer per capita of the developed world.

Not having a civil court of appeal is madness. The commercial court (Part of the high court) can hear a case in weeks. It will take a case certified yesterday until 2017 to be heard by the SC.

We need a referendum because the article 34 of the Constitution. While they're at it they are also establishing a Family Court system so it's prudent to revise art 34.

While they're at it Shatter indicated that the jurisdictions of the DC and CC will finally be revised shortly.

(Yes I was there this morning in case anyone is wondering )

Procrastastudy

trashcan wrote: »

Someone described it as unsustainable and I think they're right.

That would be Denham CJ.

Piliger

Procrastastudy - tks for that.

What part of 34 prevents them from adding more judges and splitting the court into two, criminal and civil, all under the head toffee ?

What is stopping the Gov from going ahead with legislation and implementation in advance ?

Is there something in 34 that actually prevents these actions ?



PS: "Posts: 6,055" in ONE YEAR ?? :rolleyes:

NoQuarter

Piliger wrote: »

I just heard that we will have yet ANOTHER referendum this autumn because the Supreme Court cannot cope with the number of appeals being made.

I won't get in to the nonsense our Constitution has become - that's for another thread.


What I am wondering is:

a) Why is a referendum needed ?

b) Does our SC have the discretion to accept an appeal or reject it and pass it back to the High Court, as they do in the US ?

a) So the government cant change our Constitution willy nilly.

b) Depends on the circumstances of the appeal. Yes in some cases.

Piliger

NoQuarter wrote: »

a) So the government cant change our Constitution willy nilly.

Hardly the point of the Q

b) Depends on the circumstances of the appeal. Yes in some cases.

Ahhh I have never been aware of this.

Procrastastudy

Piliger wrote: »

Procrastastudy - tks for that.

What part of 34 prevents them from adding more judges and splitting the court into two, criminal and civil, all under the head toffee ?

What is stopping the Gov from going ahead with legislation and implementation in advance ?

Is there something in 34 that actually prevents these actions ?

34.4.1° The Court of Final Appeal shall be called the Supreme Court.

There is also discussion of a secular or at least a choice of oath.

Given that there are to be a number of changes to the court system it makes sense to consolidate the article and have a referendum. I'm not sure how you reconcile the 'mess of our constitution' and being annoyed that they are trying to tidy it up. Incidentally on that point I'm not sure what you mean, given our constitution is generally held up as being one of the better ones.

Piliger wrote: »

PS: "Posts: 6,055" in ONE YEAR ?? :rolleyes:

Not quite sure the spirit in which that is meant. Suffice it to say I get a lot out of talking to a number of people here. On that note perhaps someone could enlighten me as to how the CCA didn't require a referendum.

NoQuarter

I thought that was the question exactly? The whole point of needing a referendum is so the people get to decide if the Constitution should be changed and not the Government because we are a sovereign state. Otherwise we could have the Government changing the Constitution as often as they change legislation.

What answer were you looking for??

Procrastastudy

NoQuarter wrote: »

b) Depends on the circumstances of the appeal. Yes in some cases.

They still have to hear the appeal though no?

NoQuarter

Procrastastudy wrote: »

They still have to hear the appeal though no?

Theres a general right of appeal subject to some exceptions prescribed by statute. You need a certificate from the trial judge certifying that the appeal point is of exceptional public importance.

Ashashi

A civil court of appeal is a mainstay in most common law jurisdictions. Why it has taken Ireland up until 2013 (At least) is shocking.

Piliger

NoQuarter wrote: »

I thought that was the question exactly? The whole point of needing a referendum is so the people get to decide if the Constitution should be changed and not the Government because we are a sovereign state. Otherwise we could have the Government changing the Constitution as often as they change legislation.

What answer were you looking for??

Err no I asked "Why is a referendum needed ?" because I wanted to know it is in the Constitution that prevents these changes being made. They are after all only administrative changes.

Piliger

NoQuarter wrote: »

Theres a general right of appeal subject to some exceptions prescribed by statute. You need a certificate from the trial judge certifying that the appeal point is of exceptional public importance.

So it is not the Supreme Court that can make the decision ? So basically the Supreme Court itself has no discretion.

This seems like something that should also be changed while they are at it. They should have the power to kick it back downstairs and say their decision stands.

P_1

Do we really need a referendum for this though?

Surely a simpler solution would be to reduce the collective burden on the SC by increasing staffing levels.

I mean if a shop has their staff under pressure due to an increase in trade they hire more staff, would the same solution not work with the courts system?

Piliger

Procrastastudy wrote: »

I'm not sure how you reconcile the 'mess of our constitution' and being annoyed that they are trying to tidy it up.

I am annoyed that we are continually having to 'tidy it up' every year, because it is so riddled with crap stuff. After all it was written a hell of a long time ago and Ireland and our society and the world have changed enormously since.

Patching it up using referenda is a deeply flawed method of fixing something that needs fundamental rewriting. One main reason is that referenda are almost never decided by the electorate on the basis of the issue at hand, but based on general miscellaneous political issues concerning the economy and the party in power at the time.

It's about time we completely rewrote it to catch up with 21st century Ireland, and then we wou'd be able to leave it alone for a while.

Incidentally on that point I'm not sure what you mean, given our constitution is generally held up as being one of the better ones.

Is it ? and by whom ? I am skeptical. It is riddled with hangover concepts about religion and women for a starter.

valleyoftheunos

Piliger wrote: »

So it is not the Supreme Court that can make the decision ? So basically the Supreme Court itself has no discretion.

This seems like something that should also be changed while they are at it. They should have the power to kick it back downstairs and say their decision stands.

They do, but they can only do that when they have heard the appeal!

Piliger

valleyoftheunos wrote: »

They do, but they can only do that when they have heard the appeal!

Yikes

valleyoftheunos

Piliger wrote: »

Yikes

What you're suggesting would amount to refusing the appeal and they have to hear the appeal before they can do that.

Procrastastudy

P_1 wrote: »

Do we really need a referendum for this though?

Surely a simpler solution would be to reduce the collective burden on the SC by increasing staffing levels.

I mean if a shop has their staff under pressure due to an increase in trade they hire more staff, would the same solution not work with the courts system?

Several issues:

Bonkers jurisdictions - shortly fixed. A Circuit Court judge can sentence someone to life in prison but can't deal with a civil case amounting to the average yearly salary.

You could increase staffing levels and have them sit in more divisions but that creates it's own issues in developing consistent jurisprudence. The SC should be considering a small number of very important cases very carefully. The court of Civil appeal would facilitate that. Interesting to note tat they will have to do something as cases currently in the SC could not automatically be put into the CCivA so it won't be solved soon even if the CCivA was established tomorrow.

A slightly different issue but I'm convinced the SC should not become a constitutional court exclusively.

Piliger wrote: »

I am annoyed that we are continually having to 'tidy it up' every year, because it is so riddled with crap stuff. After all it was written a hell of a long time ago and Ireland and our society and the world have changed enormously since.

Patching it up using referenda is a deeply flawed method of fixing something that needs fundamental rewriting. One main reason is that referenda are almost never decided by the electorate on the basis of the issue at hand, but based on general miscellaneous political issues concerning the economy and the party in power at the time.

It's about time we completely rewrote it to catch up with 21st century Ireland, and then we wou'd be able to leave it alone for a while.

Crap stuff is great stuff to a large proportion of the population. People also forget that it's only a few articles that give issues. We could have just inserted the ECHR in to the Constitution but we didn't. If we were to rewrite it tomorrow by the time it was enacted it would need amending because of some break through or change in social attitude.

God argument is always trotted out but frankly we're still a nation of God bothers so that will be amended when the time comes - probably a good hundred years yet. Women - well that needs resolving but hardly grounds for a rewrite and was accepted very early on that it was a bit naff even when it was brand spanking new.

On amendments - some people consider them great things. First 10 of the ones in the US constitution get some great press!

As for the referenda itself there are many criticisms of the process but that's not really the fault of the Constitution.

Piliger wrote: »

Is it ? and by whom ? I am skeptical. It is riddled with hangover concepts about religion and women for a starter.

Constitutional Scholars of which I am not one. It was adopted as the model in India IIRC and is frequently referred to as a good model. Frankly people who say it needs a rewrite are always very woolly on exactly how or what should be in it.

Procrastastudy

OP btw my posts are not meant to sound aggressive in anyway. It's a great OP and fantastic discussion topic. I disagree with your views but can understand where you are coming from and a delighted to discuss it. I just hope a few more people with half a clue, unlike myself, join in!

Piliger

Procrastastudy wrote: »

OP btw my posts are not meant to sound aggressive in anyway.

No worries !! You'd have to do a lot more to irritate me

It's a great OP and fantastic discussion topic. I disagree with your views but can understand where you are coming from and a delighted to discuss it. I just hope a few more people with half a clue, unlike myself, join in!

100% agree.

Piliger

Procrastastudy wrote: »

Several issues:

Bonkers jurisdictions - shortly fixed. A Circuit Court judge can sentence someone to life in prison but can't deal with a civil case amounting to the average yearly salary.

Bonkers is right.

You could increase staffing levels and have them sit in more divisions but that creates it's own issues in developing consistent jurisprudence.

I am no legal expert, not even 'very' knowledgable, but it seems to me that the holding of a referendum to change the Constitution is a poor excuse for not making reforms that would have gone a long way to fixing many of the problems - maybe it wasn't used as an excuse, maybe it was, I don't know
I can see where a change in the Constitution helps make it perfect ... but waiting for perfection is not an excuse for inaction.

As you and someone else mentions, the number of SC judges could have been increased substantially, and split between responsibilities for civil cases and criminal cases, while still acting under the top justice and being defined as the SC ?

The SC should be considering a small number of very important cases very carefully.

That seems eminently obvious and desirable.

The court of Civil appeal would facilitate that.

So the number of civil cases coming to the SC is in the vast majority ?

Interesting to note that they will have to do something as cases currently in the SC could not automatically be put into the CCivA so it won't be solved soon even if the CCivA was established tomorrow.

That seems crazy, surely if they are going to all of the trouble of a Constitutional change .... they could facilitate this ?

A slightly different issue but I'm convinced the SC should not become a constitutional court exclusively.

Is there a demand that it should ? I wouldn't know. As a pleb, I would imagine that the SC should not be considering more than 50 cases a year.

But it also seems to me eminently desirable that the SC have control of it's own docket (learning the lingo !) and do what the US SC does. It seems to look at the appealed cases sent to it, and decides based on submissions if it thinks the principles have been sufficiently dealt with in the Appeals Courts - tackling only cases where there is real doubt over the way the constitution or the statutes have been interpreted by those Appeals Courts.

Crap stuff is great stuff to a large proportion of the population.

I agree to some extent. But coming from a wooly position (I agree!) there is a lot of crap that a large majority would support removing.

People also forget that it's only a few articles that give issues.

Well I am not sure that is a fair statement. There is stuff in the Constitution that people do not like ... but don't necessarily lead to legal problems surely ? ( ... if that makes sense)

We could have just inserted the ECHR in to the Constitution but we didn't.

oh ..... thank goodness we didn't do that :rolleyes:

If we were to rewrite it tomorrow by the time it was enacted it would need amending because of some break through or change in social attitude.

I am also not convinced by that argument. The US Constitution hasn't been amended for a long time, and the same goes (I think) for most of the European Constitutions. Yes there will be changed needed from time to time, but surely they would be fewer.

God argument is always trotted out but frankly we're still a nation of God bothers so that will be amended when the time comes - probably a good hundred years yet.

I don't agree at all, irrespective of religious views. I believe that the great majority of people in the country are completely opposed to it's presence in so many places and with so much Catholic Church coloured provisions in the Constitution ... even those who are very religious.

Women - well that needs resolving but hardly grounds for a rewrite and was accepted very early on that it was a bit naff even when it was brand spanking new.

I agree hardly grounds on it's own ... but as one of many ?

On amendments - some people consider them great things. First 10 of the ones in the US constitution get some great press!

As for the referenda itself there are many criticisms of the process but that's not really the fault of the Constitution.

Well I wasn't blaming the Constitution - I was blaming the fact that as a result of having an outdated Constitution, too many referenda are being held and that is leading to too many critical decisions being made on the wrong criteria, being muddle up with political issues of the day.

Constitutional Scholars of which I am not one. It was adopted as the model in India IIRC and is frequently referred to as a good model. Frankly people who say it needs a rewrite are always very woolly on exactly how or what should be in it.

Well ... again I say I am probably in no position to argue .. but it seems to me that most of that praise dates from a long long time ago. We did achieve great things with our Constitution 'relative' to those times. But that doesn't ameliorate how out-dated is it.

Victor

Is there an argument for including a bill of rights in the constitution, e.g. including the Judges Rules-type material?

Procrastastudy

Piliger wrote: »

Bonkers is right.

I am no legal expert, not even 'very' knowledgable, but it seems to me that the holding of a referendum to change the Constitution is a poor excuse for not making reforms that would have gone a long way to fixing many of the problems - maybe it wasn't used as an excuse, maybe it was, I don't know
I can see where a change in the Constitution helps make it perfect ... but waiting for perfection is not an excuse for inaction.

I'm not sure what you mean here. Are you suggesting we adopt the English model, that acts of parliament establish and alter the constitution? I think the majority of you fellas disagreed with this is 1922 and 1937

Piliger wrote: »

As you and someone else mentions, the number of SC judges could have been increased substantially, and split between responsibilities for civil cases and criminal cases, while still acting under the top justice and being defined as the SC ?

They could have been but it is more desirable to have the very best legal minds in the country working on a small number of very important cases rather loads of people working on loads of cases. There is already a Court of Criminal appeal which considers things like charges to juries - that simply doesn't require the consideration something like the Fleming case does.

Piliger wrote: »

So the number of civil cases coming to the SC is in the vast majority ?

I don't have a break down but by the time it gets to the SC it's probably more of a constitutional issue where ever it originated - happy to be corrected.

Piliger wrote: »

That seems crazy, surely if they are going to all of the trouble of a Constitutional change .... they could facilitate this ?

Dunno I'm afraid. I'm sure the option could be made available.

Piliger wrote: »

Is there a demand that it should ? I wouldn't know. As a pleb, I would imagine that the SC should not be considering more than 50 cases a year.

But it also seems to me eminently desirable that the SC have control of it's own docket (learning the lingo !) and do what the US SC does. It seems to look at the appealed cases sent to it, and decides based on submissions if it thinks the principles have been sufficiently dealt with in the Appeals Courts - tackling only cases where there is real doubt over the way the constitution or the statutes have been interpreted by those Appeals Courts.

Well there we agree but for that to happen there needs to be an appeals mechanism from the High Court that isn't the Supreme Court - hence the need for the CCivA. Bear in mind the HC has to deal with every matter over 38K - that's alot of cases and they do it very, very well. However even when the jurisdiction is increased the HC will still be dealing with a huge number of cases - appeals have to go somewhere.

There is also the establishment of the Family Court system to consider. The model is a lower and superior family court with appeals to the CCivA. So more workload.

The appeal court would be the same judges hearing civil and criminal cases so it would be one unified court. So I'll actually just start referring to it as the appeals court. It's worth looking at the Donly decision as a reason not to have judges specialising in criminal and civil in the appeals process.

Piliger wrote: »

I agree to some extent. But coming from a wooly position (I agree!) there is a lot of crap that a large majority would support removing.

Well I am not sure that is a fair statement. There is stuff in the Constitution that people do not like ... but don't necessarily lead to legal problems surely ? ( ... if that makes sense)

Well it's worth having a read of it so you know exactly what you don;t like. I think you'll find a lot to like. You have to bear in mind we don't all share the same moral code.

Piliger wrote: »

oh ..... thank goodness we didn't do that :rolleyes:

Why not? It would have been the way I'd have gone.

Piliger wrote: »

I am also not convinced by that argument. The US Constitution hasn't been amended for a long time, and the same goes (I think) for most of the European Constitutions. Yes there will be changed needed from time to time, but surely they would be fewer.

I don't agree at all, irrespective of religious views. I believe that the great majority of people in the country are completely opposed to it's presence in so many places and with so much Catholic Church coloured provisions in the Constitution ... even those who are very religious.

Well all they need to do is form a group and have a referendum. Bear in mind the courts referendum is wanting to establish a secular oath!

Piliger wrote: »

I agree hardly grounds on it's own ... but as one of many ?

Not quite sure what you mean. It's one reference in one place IFAIK.

Piliger wrote: »

Well I wasn't blaming the Constitution - I was blaming the fact that as a result of having an outdated Constitution, too many referenda are being held and that is leading to too many critical decisions being made on the wrong criteria, being muddle up with political issues of the day.

This is why this proposed referendum is a consolidation rather than an insertion. I agree we should be simplifying rather than complicating. The children's referendum as a disaster imho.

Piliger wrote: »

Well ... again I say I am probably in no position to argue .. but it seems to me that most of that praise dates from a long long time ago. We did achieve great things with our Constitution 'relative' to those times. But that doesn't ameliorate how out-dated is it.

I completely disagree with the premise it's out of date. Honestly read it.

Procrastastudy

Victor wrote: »

Is there an argument for including a bill of rights in the constitution, e.g. including the Judges Rules-type material?

Not in my opinion. That's getting too specific and removes the discretion to ignore it in certain, compelling, circumstances. Sorting out the situation of the right to silence would be nice though.

Piliger

Victor wrote: »

Is there an argument for including a bill of rights in the constitution, e.g. including the Judges Rules-type material?

My personal opinion is that a Constitution should be as short and as simple as possible. It should be an umbrella document aimed at basic principles and fundamentals that should underpin and restrict our legal and political system.

All other matters should be decided by the Parliament.

Victor

On the flip side you have the un-enumerated rights that make things fuzzy.

Procrastastudy

I'm interested in what you folks think of unenumerated rights?

EDIT: Great minds or fools lol - I was looking for the Sam Seaboure scene!

valleyoftheunos

The thread has moved on a little bit but the US supreme court isn't a good comparisson to our supreme court. The USSC is a federal court more akin to the Europeac Court of appeal so n terms of jurisdiction its actually a step or two above our SC , any case that goes there will have been dealt with by the Supreme Court of what ever state it originated in. This means that the appeals it is hearing arent direct from first instance so it can be much more selective, it is a "second" appeal if you will.

Our SC hears appeals from the High Court which is a court of first instance hence the court must give more consideration to the appeals sought. Im not yet familiar with the proposed amendment but its not feasible to simply "increase staffing" so to speak in the SC, SC judges don't grow on trees!

Piliger

Procrastastudy wrote: »

I'm interested in what you folks think of unenumerated rights?

EDIT: Great minds or fools lol - I was looking for the Sam Seaboure scene!

Discussed here

I personally object to giving Judges the right to make law - which is essentially what unenumerated rights adds up to. That is the prerogative of elected representatives allied to the Constitution.

The Judge's job is to interpret and enforce those laws. The power to so interpret is already a very major one.

234

Piliger wrote: »

Discussed here

I personally object to giving Judges the right to make law - which is essentially what unenumerated rights adds up to. That is the prerogative of elected representatives allied to the Constitution.

The Judge's job is to interpret and enforce those laws. The power to so interpret is already a very major one.

All common law systems give judges the power to make law; to deny this is just delusional. The debate is actually about the kind of law that we allow them to make.

Should they be allowed to decide matters of fundamental social policy? Since the early 1990s the trend has been to exercise the power to strike down legislation or expand constitutional rights in a very limited way. The courts now state, almost like a mantra, that certain areas are simply for the Oireachtas as they don't want to legislate from the bench.

Also, outside the constitutional sphere the courts can often make decisions that have very significant effects. Just because a constitutional issue is not involved people assume that it's not really that important and can be left to judges. Often the black-letter legal decisions can have more immediate consequences than anything from constitutional rights jurisprudence.

eire_lad

100% should be a case. my understanding :- If you go to the Supreme court you basically dont accept the decision that was made in the high court.

If a case is won in the supreme court after been heard in high court there is something wrong with the system. The judge who made the initial decision in the high court should be relieved of his duties. I dont understand how high court judges decisions are constantly being overturned in the supreme court. How are high court judges who have their decisions overturned in the supreme court not questioned or made accountable for their initial decision. This is a complete waste of the taxpayers money if a case has to be heard before a number of different judges / courts before the final overturned decision is made in the supreme court. Something wrong somewhere in the system.

As well is that is there not a case where supreme court judges may support high court judges as at the end of the day they are colleagues....Silmilar to solicitors supporting or agreeing on decisions beofer a case is heard...

The whole court system in Ireland need to be looked at. Has to be a way of recording cases so that everything that is said in court can be produced again to show how wrong decisions are made. Maybe if an audio recording of all cases was made available a judge could be made account for a decision he made as it could be replayed...Then it woud be a case of listening to a recording before all these needless cases are brough before different courts wasting needless amounts of money...

234

eire_lad wrote: »

100% should be a case. my understanding :- If you go to the Supreme court you basically dont accept the decision that was made in the high court.

If a case is won in the supreme court after been heard in high court there is something wrong with the system. The judge who made the initial decision in the high court should be relieved of his duties. I dont understand how high court judges decisions are constantly being overturned in the supreme court. How are high court judges who have their decisions overturned in the supreme court not questioned or made accountable for their initial decision. This is a complete waste of the taxpayers money if a case has to be heard before a number of different judges / courts before the final overturned decision is made in the supreme court. Something wrong somewhere in the system.

As well is that is there not a case where supreme court judges may support high court judges as at the end of the day they are colleagues....Silmilar to solicitors supporting or agreeing on decisions beofer a case is heard...

The whole court system in Ireland need to be looked at. Has to be a way of recording cases so that everything that is said in court can be produced again to show how wrong decisions are made. Maybe if an audio recording of all cases was made available a judge could be made account for a decision he made as it could be replayed...Then it woud be a case of listening to a recording before all these needless cases are brough before different courts wasting needless amounts of money...

In High Court cases every word spoken is recorded verbatim by a stenogropher.

On the issue of appeals. Your point of view actually militates in favour of abolishing the SC as clearly one judge should be able to get it right first time around.

On a more realistic level, every court system throughout the world has an appeal system. It's a check that makes sure that you can appeal a decision that you disagree with.

Contrary to what you think the vast majority of High Court cases are never overturned. The SC hears no more than 300 cases a year. Even if in every one of these cases they overturned by the decision of the trial judge (which they don't by the way) then there are still hundreds, probably thousands of decisions made by the High Court every year that are not affected.

The fact of an appeal system speaks of human fallability. We are not willing to assume that a judge will always get it right, all of the time. That's why we have an appeal system, so that justice can prevail.

If you removed every HC judge who ever had a decision overturned (something that is impossible by the way) then you would have no HC at all.

crystalmice

eire_lad wrote: »

If a case is won in the supreme court after been heard in high court there is something wrong with the system. The judge who made the initial decision in the high court should be relieved of his duties.

Most appeals are not the result of a high court judge making a blatant and stupid mistake. The law is a complicated beast open to many interpretations and to say that every time a judge is disagreed with as to his interpretation he should be removed from office is frankly ridiculous. There can be many reasons an appeal results in a different result in the supreme court and plenty of those reasons have nothing to do with a culpable fault of the trial judge.

We would run out of judges pretty fast if we ditched them every time a decision was successfully appealed.

eire_lad

what about if a particular judge had numberous cases overturned in th esupreme court. Would it be acceptable for a high court judge to have 5 x decisions overturned in one particular year. i dont think so. They are bein paid enough money to get their decision correct.

eire_lad

When you say recorded verbatim. Does this mean that a solicitor or barrister can get a CD audio recording of a case. If this is the case then fair enought. But if its a written trancribe of a recording ,it does lead to mistakes, deliberate or not

valleyoftheunos

eire_lad wrote: »

100% should be a case. my understanding :- If you go to the Supreme court you basically dont accept the decision that was made in the high court.

If a case is won in the supreme court after been heard in high court there is something wrong with the system. The judge who made the initial decision in the high court should be relieved of his duties. I dont understand how high court judges decisions are constantly being overturned in the supreme court. How are high court judges who have their decisions overturned in the supreme court not questioned or made accountable for their initial decision. This is a complete waste of the taxpayers money if a case has to be heard before a number of different judges / courts before the final overturned decision is made in the supreme court. Something wrong somewhere in the system.

As well is that is there not a case where supreme court judges may support high court judges as at the end of the day they are colleagues....Silmilar to solicitors supporting or agreeing on decisions beofer a case is heard...

The whole court system in Ireland need to be looked at. Has to be a way of recording cases so that everything that is said in court can be produced again to show how wrong decisions are made. Maybe if an audio recording of all cases was made available a judge could be made account for a decision he made as it could be replayed...Then it woud be a case of listening to a recording before all these needless cases are brough before different courts wasting needless amounts of money...

there is a lot going on in this post and not a lot of it is correct.

eire_lad wrote: »

When you say recorded verbatim. Does this mean that a solicitor or barrister can get a CD audio recording of a case. If this is the case then fair enought. But if its a written trancribe of a recording ,it does lead to mistakes, deliberate or not

I'm not aware of the accuracy for court transcriptions being an issue in any area of the Courts Service, Stenographers are highly professional and very well respected in this country. I also fail to see how an audio recording is going to any more useful to a legal practitioner or judge, if anything a recording would be less useful.

eire_lad

I have heard of a few case where the sternographers report was different from what was heard in the actual case ( either deliberate or not , im not too sure) An audio file completely removes any chance of a sternographer making a mistake and allows the whole case to be more transparent.. Believe this is common place in other european legal systems. dont see what the big issue with an audio file is. Its is just a recording of exactly what happened...

valleyoftheunos

eire_lad wrote: »

I have heard of a few case where the sternographers report was different from what was heard in the actual case ( either deliberate or not , im not too sure) An audio file completely removes any chance of a sternographer making a mistake and allows the whole case to be more transparent.. Believe this is common place in other european legal systems. dont see what the big issue with an audio file is. Its is just a recording of exactly what happened...

suggesting that a Stenographer would deliberately enter something incorrectly is a very serious accusation and something you have no justification for.

Ultimately there is little reason not to make an audio recording of a trial however it wouldn't do away with the need or use of stenographers.

My point is that audio recordings are an incomplete solution for a problem that doesn't really exist.

eire_lad

An audio recording is better than a written recording. Less chance of any error being made. fact end of

valleyoftheunos

eire_lad wrote: »

An audio recording is better than a written recording. Less chance of any error being made. fact end of

Well errors in transcriptions are rare enough that I've never heard of it being an issue and from a practitioner's point of view a transcription is easier to use so I don't know that audio is "better". In fairness that doesn't mean recordings shouldn't be made but it also doesn't mean that the system is flawed simply because they aren't used.

Nobody is going to say the courts system is perfect or anything like it but I think your view of it or at least how it should be, is rather simplistic and is missing out on a lot of important considerations.

eire_lad

For your information all cases are currently recorded at the moment. Think this is the case since 2005 but this mightnt be 100% accurate. If a record of the case is required a sternographer is required post a case, a sternographer is hired who in some case , just types what he/ she hears on the audio file. the audio file is only available to officers of the court. should be available to everyone if the whole legal profession in ireland is to become more transparent.

valleyoftheunos

eire_lad wrote: »

For your information all cases are currently recorded at the moment. Think this is the case since 2005 but this mightnt be 100% accurate. If a record of the case is required a sternographer is required post a case, a sternographer is hired who in some case , just types what he/ she hears on the audio file. the audio file is only available to officers of the court. should be available to everyone if the whole legal profession in ireland is to become more transparent.

So what are we arguing about? how would making trial recordings available to all make the professions more transparent? As it is any member of the public can walk into a court sit down and hear the entire proceedings "live" as it were.

Piliger

234 wrote: »

All common law systems give judges the power to make law; to deny this is just delusional. The debate is actually about the kind of law that we allow them to make.

This is wholly and completely inaccurate and untrue.

ResearchWill

valleyoftheunos wrote: »

The thread has moved on a little bit but the US supreme court isn't a good comparisson to our supreme court. The USSC is a federal court more akin to the Europeac Court of appeal so n terms of jurisdiction its actually a step or two above our SC , any case that goes there will have been dealt with by the Supreme Court of what ever state it originated in. This means that the appeals it is hearing arent direct from first instance so it can be much more selective, it is a "second" appeal if you will.

Our SC hears appeals from the High Court which is a court of first instance hence the court must give more consideration to the appeals sought. Im not yet familiar with the proposed amendment but its not feasible to simply "increase staffing" so to speak in the SC, SC judges don't grow on trees!

A case can go to the ECJ without going near the SC or even the HC. In fact a reference can be made direct to ECJ, a example not irish is the Zambrano decision from Belguim that case was referred by a social welfare tribunal.

Also the ECJ can only deal with issues with a European dimension. On a issue totally within the States competence the SC is the last stand.

ResearchWill

eire_lad wrote: »

100% should be a case. my understanding :- If you go to the Supreme court you basically dont accept the decision that was made in the high court.

If a case is won in the supreme court after been heard in high court there is something wrong with the system. The judge who made the initial decision in the high court should be relieved of his duties. I dont understand how high court judges decisions are constantly being overturned in the supreme court. How are high court judges who have their decisions overturned in the supreme court not questioned or made accountable for their initial decision. This is a complete waste of the taxpayers money if a case has to be heard before a number of different judges / courts before the final overturned decision is made in the supreme court. Something wrong somewhere in the system.

As well is that is there not a case where supreme court judges may support high court judges as at the end of the day they are colleagues....Silmilar to solicitors supporting or agreeing on decisions beofer a case is heard...

The whole court system in Ireland need to be looked at. Has to be a way of recording cases so that everything that is said in court can be produced again to show how wrong decisions are made. Maybe if an audio recording of all cases was made available a judge could be made account for a decision he made as it could be replayed...Then it woud be a case of listening to a recording before all these needless cases are brough before different courts wasting needless amounts of money...

Have you ever sat in a court? But to deal with your issues. If we dismissed a judge from the high court every time a decision was over turned well we would have no judges. A high Court Judge will not go against settled case law, the majority of appeals only overturn the HC in cases that are new. It's how every system of law works in the world.

Your point about SC judges going with the HC judge cause they are buddies, is in total contradiction to you original point.

Most court houses now have DAR (Digital Audio Recording), also there is nothing stoping any person going into any court (except family and certain other courts) and sitting down and listening, in fact I think every one should.

In relation to wasting needless amounts of money, our Courts System is in fact one of the cheapest in the world. A few facts, our total cost of running every court in the land, including all cost from wages to toilet paper is €110 million per year, the courts have income from stamp duty etc. of €50 million, further courts impose collected fines of €16 million, so total cost to state €44 million. At a guess I would say charities collect at least €10 million (total guess that one) through poor box contributions.

So excluding fines and poor box, the Courts service costs the state €60 million, the Arts Council costs more. (No issue with the Arts Council). If you want a days enlightenment and some entertainment go to any DC in the country and see for your self.

ResearchWill

Piliger wrote: »

Discussed here

I personally object to giving Judges the right to make law - which is essentially what unenumerated rights adds up to. That is the prerogative of elected representatives allied to the Constitution.

The Judge's job is to interpret and enforce those laws. The power to so interpret is already a very major one.

So you think the constitution should list out all rights protected in clear concise terms. Or are you saying I and you have no right to bodily integrity, in other words do you think the state if it wishes has a right to put harmful medication in all our drinking water, just because the constitution does not mention it.

Do you think the SC went beyond its jurisdiction when it said because of the constitutional right to association, there must be also a right to disassociate, even though there is no mention of same in that document.

ResearchWill

eire_lad wrote: »

what about if a particular judge had numberous cases overturned in th esupreme court. Would it be acceptable for a high court judge to have 5 x decisions overturned in one particular year. i dont think so. They are bein paid enough money to get their decision correct.

You really don't understand the system.

ResearchWill

eire_lad wrote: »

When you say recorded verbatim. Does this mean that a solicitor or barrister can get a CD audio recording of a case. If this is the case then fair enought. But if its a written trancribe of a recording ,it does lead to mistakes, deliberate or not

Upto a few years ago a person sat in court with one of those funny machines and produced a verbatim transcript of the proceedings. The system is now digital recording, with I think 2 separate recordings the main one that picks up the main mikes in court and there is also a back up mike that records everything. A logger now just inputs the name of who ever is speaking at each point. That recording is transcribed and either legal team can get a copy, if there is an issue I believe the original recording can be checked. In all criminal jury trials where a appeal is happening the transcript is produced as a matter of course.