Dáil Éireann díospóireacht -
Thursday, 6 Nov 1997

Vol. 482 No. 5

Adjournment Debate. - Court Appointments.

Mr. Higgins

(Mayo): I thank the Ceann Comhairle for allowing me to raise this matter on the Adjournment. Last Friday's decision by Mr. Justice McCracken in the High Court to strike down a summons for a road traffic offence because the court clerk had not been properly appointed has led to personal catastrophes in some cases. I described the potential outcome of the decision as a nightmare in many cases.

An application was made by a Dublin housewife at Dún Laoghaire District Court for an extension of a barring order against her husband. She had been granted a two month barring order last February and was granted a renewal of it last April for a six month period. As the barring order was to expire last Tuesday she went before Dún Laoghaire court to seek a further extension of it. Her husband was also before the court on a charge of breaking the previous barring order. The charge against her husband was not proceeded with because of the High Court ruling on District Court clerk appointments.

While the barring order was extended to February, in the total confusion that ensued and because the husband's breach of the previous order was not dealt with, it was assumed the barring order had not been renewed. The result was that when the housewife returned to her house her husband had taken possession of the family home, of which he is still in possession, and she had to seek accommodation in a local women's refuge where she remains with her two children and grandchild.

The decision is also a nightmare for the relatives of the unfortunate waitress who lost her life tragically when the contents of the dessert tray she was carrying at a wedding in a hotel caught fire, causing severe facial burns, and whose case was dismissed this week because of the court clerk ruling. Apart from the upholding of law and order, there are deep personal traumas involved in the hundreds of cases struck down throughout the country.

I regret the Minister, Deputy O'Donoghue, is not here to deal with this matter. People in general were extremely surprised at his highly indignant reaction when I raised this matter. I did not point the finger of blame at the Minister and I do not do so today. That is in marked contrast to the approach adopted by the Minister in Opposition when he blamed Deputy Owen, the then Minister, for every murder, bank robbery and kidnapping. Last night again on the 6.01 News on RTE the Minister spoke in veiled terms about collusion, as if there is a conspiracy. I merely asked questions about the consequences of the High Court judgment and the need to take corrective action by appeal to the Supreme Court or by way of legislation.

If the High Court decision stands, all summonses relating to current and pending cases will be invalid and the charges will fall. Thousands of convictions obtained on foot of documents issued by court clerks not properly appointed would be open to challenge, as would barring orders and licences granted by District Courts. One can imagine the chaos that would result if each case is challenged individually. I hope the Supreme Court does not uphold the decision, but it may well do so — there are many precedents for that. I hope the court deals expeditiously with the appeal. Is the Minister of State and the Department fully satisfied that the collective signing, in one document, of warrants of appointment of District Court clerks by the Minister last week is procedurally correct?

Miss M. Wallace

I apologise for the absence of the Minister who would like to have taken this debate but is in Templemore today.

On Friday last the High Court ruled that District Court clerks on their appointment as such, should be appointed personally by the Minister for Justice, Equality and Law Reform. Up to that ruling the long-standing practice had been that persons appointed as District Court clerks, whether appointed following competitions conducted by the Civil Service Commission or following Civil Service transfer or promotion arrangements, were appointed by an authorised officer of the Department. As all District Court clerks were appointed in this way action had to be taken to ensure those officers who had been performing the functions of District Court clerks up to last Friday could continue to do so. Accordingly, on the same day, the Minister for Justice, Equality and Law Reform took the measures necessary to appoint District Court clerks and, as is also required, arranged for them to be assigned to District Court areas. That action enabled the District Courts to continue in operation. A number of commentators have questioned whether the use of one document to secure these appointments casts doubt on the validity of the appointments. Deputy Higgins is concerned about this matter. The Minister has been specifically advised by the Attorney General that this is not the case but, to put the matter firmly beyond doubt and argument, he decided to issue each District Court clerk with an individual document appointing him or her as such. The Attorney General has advised that such action on the part of the Minister does not disturb the appointments made last Friday or any actions pursuant to them.

This will also have the beneficial effect of providing each District Court clerk with a formal document confirming his or her appointment, which has not been the case up to now. Persons serving as District Court clerks have instructions not to issue documents, etc., requiring the signature of District Court clerks unless they are satisfied with the documentation in their possession relating to their appointments.

In regard to the implications for cases pending before the courts, it is a matter for the courts to decide whether cases are properly before them. The Minister for Justice, Equality and Law Reform does not have a function in such matters. The Minister, however, is aware that large numbers of summonses have been struck out or withdrawn and that in certain cases new summonses are being applied for where this is possible.

In so far as the judgment is concerned, the Minister understands that an appeal is being taken to the Supreme Court and that an early hearing is to be sought. The Minister accepts that Deputy Higgins prefaced the remarks he made publicly by stating "If the Supreme Court rejects the appeal". Between now and the hearing of the appeal the matter will be carefully examined to see what legislative or other action might be taken if the appeal is not successful.

There has been considerable disruption in the District Court arising from the decision of the High Court. The practice the High Court has found to be wrong is a long-standing one which, on legal advice, had been regarded as proper over many years. The Minister acted promptly to ensure disruption is kept to a minimum and if further action is required, following the appeal to the Supreme Court, it will be taken.