IRELAND HAS OUTLINED to the Council of Europe’s decision-making body its plans for legislation that could enable defendants in criminal trials to receive compensation if cases are extensively delayed before being heard in court.
The State has recently found itself in hot water in Europe over delays to court trials, and has updated the Committee of Ministers in Europe this month on what is being done to crack down on the massive delays in court proceedings.
The Council of Europe is monitoring the Government on how the problem is being dealt with, and Ireland is now required to submit an action plan and to take measures to resolve breaches identified by the European Court of Human Rights (ECtHR).
In some cases, people due to face criminal trial (some of whom could possibly be not guilty of the offences they are charged with) in Irish courts have been waiting 27 months for an opening date.
The current wait time for some murder and rape cases is up to 24 months.
Justice Minister Simon Harris recently announced – to much fanfare – that 24 new judges are to be appointed this year, with a further 20 new judges likely to follow in 2024, which combined would increase the total number of judges in Ireland from 173 to 217.
However, alongside this, and very much under the radar, the Cabinet also approved the Court Proceedings (Delays) Bill, which will legislate to allow compensation in cases where people experience undue delays in the justice system.
On 2 March, the Irish Government submitted its latest ‘action plan’ on how it is handling delays in both civil and criminal proceedings before the domestic courts, including how the State plans to legislate to provide more rights for defendants who experience undue delay in accessing justice.
In the submission, seen by The Journal, the Government acknowledged how, at the most recent Council of Ministers meeting in September 2022, the council “reiterated its concern that the authorities had not yet established an effective remedy in this regard” – though it also noted measures taken by Ireland to tackle the issue of delays to date.
The Government detailed a plan for dealing with delays in the new Court Proceedings (Delays) Bill, which was initiated as a direct response to the 2010 ECtHR judgment in the McFarlane versus Ireland case.
In that case, the State alleged that Brendan ‘Bik’ McFarlane was involved in an IRA kidnapping in 1983. He did not go on trial for that alleged crime until 2008.
In taking his case to the ECtHR, McFarlane alleged there were unjustified delays to the criminal proceedings brought against him.
He argued that the delay of between 10 and 22 years – depending on the account of the Irish authorities – violated the reasonable time requirement.
The European court found that there had been violations of Article 13 (right to an effective remedy) and Article 6 (right to a fair trial within a reasonable time) of the European Convention on Human Rights. He was awarded €5,500 damages and €10,000 costs and expenses.
McFarlane had been acquitted of the charges in 2006.
The Council of Europe monitors compliance with ECtHR judgments, and while it is not seen as an EU infringement matter, in 2017 the council transferred the McFarlane case to an “enhanced procedure”, meaning Ireland is being supervised by the Committee of Ministers in its efforts to find a solution.
In its submission last week, the Irish Government set out that in July 2021, it agreed to publish the revised General Scheme of the Bill and put it on a priority basis.
The Court Proceedings (Delays) Bill creates a statutory right to a conclusion of proceedings within a reasonable time.
It also provides for the establishment of an independent assessment process, under the aegis of the Department of Justice, to assess claims for breach of the right to justice within a reasonable timeframe.
A defendant involved in a criminal case can make an application for an assessment in respect to proceedings that have not yet concluded, or that have been concluded, within the previous six months.
In other court cases, the plaintiff, defendant, applicant or respondent, may also make an application.
Successful applicants could be entitled to a declaration that their rights have been breached. They may also be awarded financial compensation for the delay in justice they have experienced.
Any award of damages will be limited to the maximum damages awarded by the Strasbourg Court, rather than the Minister for Justice setting limits on damages.
In determining whether there has been a breach of rights, a number of factors will be taken into account, such as:
In its submission, the Government drew the committee’s attention to the judgment of the Court of Appeal in O’Callaghan v Ireland and the Attorney General 2020, stating that it demonstrated that in some cases, compensation for delayed trials is already being paid out.
In the case, the plaintiff – Michael O’Callaghan – claimed damages for breach of his constitutional right to trial with reasonable expedition, arising from alleged delay in the hearing of his appeal against his conviction before the Court of Criminal Appeal.
The Supreme Court held that there had been “systemic delay in the hearing of the
plaintiff’s appeal against his conviction, and that this delay was attributable to the
State”, according to the Government’s submission.
The court concluded that the plaintiff was entitled to a declaration that
the delay which had occurred in his criminal appeal infringed his constitutional
right to trial with due expedition under Article 38.1 of the Constitution, and that an
award of €5,000 be made in damages.
In a subsequent judgment delivered on 8 October 2021, the plaintiff was awarded his costs arising from the appeal to the Supreme Court.
However, the Government acknowledged in the action plan that there was a need to put such protections on a statutory footing, stating that it plans to do this through the Court Proceedings (Delays) Bill.
It is expected that the Bill will proceed through the Oireachtas during the second quarter of 2023.
A Justice Department spokesperson told The Journal that in the action plan submitted last week, the Government noted in particular the publication of the Bill and other reform measures which will assist in addressing delays.
“These measures include the Report of the Judicial Planning Working Group, the related Government decision of 21 February 2023 to appoint an additional 24 judges, the commencement of the Criminal Procedure Act 2021 and the reforms recommended in the Report on the Administration of Civil Justice,” they said.
Senior Counsel and Chair of the Bar Council Sarah Phelan told RTÉ’s Claire Byrne last week that significant backlogs in the court system had to be addressed, stating that delays in court cases were impacting on victims of crime and the accused, be they innocent or guilty, in terms of being able to draw a line under a matter.
It has impacts across all areas of society, she said, adding that “access to justice” is what is needed if there is to be trust in the system.
While it is a truism, “justice delayed is justice denied”, she added.
To embed this post, copy the code below on your site
have your say