Monthly Archives: September 2012

Structure, Function & Jurisdiction of the High Court of Ireland

I have already covered the District Court and Circuit Court in previous posts, so the next logical step is to examine the High Court. Legally established by section 2 of the Courts (Establishment and Constitution) Act, 1961, it is empowered with full original jurisdiction by Article 34.3.1 of Bunreacht na hEireann. This means that it has full power “to determine all matters and questions whether of law or fact, civil or criminal”.


The High Court consists of a President (currently the Honourable Mr. Justice Nicholas Kearns, appointed in October 2009) and 36 ordinary judges. The Chief Justice and the President of the Circuit Court are ex officio members.

Civil cases are usually heard by one judge sitting alone, although cases of defamation, assault and battery, false imprisonment, and malicious prosecution all require a jury. Though rare, cases of particular importance (for example, a constitutional issue which is in the public interest) are heard by three judges. Criminal matters require a judge and jury. Continue reading


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Structure, Function & Jurisdiction of the Circuit Court of Ireland

Following on from my previous post regarding the District Court, I will now outline the main features of the Circuit Court, which was established under section 4 of the Courts (Establishment and Constitution) Act, 1961.


The Circuit Court is comprised of a President (currently Mr. Justice Raymond Groarke, appointed in June 2012), and 37 ordinary judges. As befits the appointment, the President of the District Court is also an ex officio member of the Circuit Court.

There are 8 Circuits in Ireland – Dublin, Cork, Eastern, South Eastern, Western, South Western, Northern, and Midlands. (Only Dublin and Cork sit continually throughout the legal year; sittings in other Circuits are of varying lengths.) At any given time, 10 judges are assigned to the Dublin Circuit, 3 to the Cork Circuit, and one each to the remaining Circuits. In civil matters, one judge sits alone, whereas criminal matters are heard by a judge and 12 jury members. Continue reading


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Structure, Function & Jurisdiction of the District Court of Ireland

Article 34 of the Constitution deals with the composition of the courts system of Ireland. It sets up not only the High Court (34.3.1) and Supreme Court (34.4.1), but also other courts “of local and limited jurisdiction” (34.3.4). However, it was only in 1961 with the passing of the Courts (Establishment and Constitution) Act that an official structure was put in place – that of the District Court, Circuit Court, Court of Criminal Appeal, High Court, and Supreme Court. What follows is a brief summary of the structure, function and jurisdiction of the District Court:

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European Court of Human Rights rules against “arbitrary and unlawful” indeterminate sentences

Over 6,000 prisoners in England and Wales are serving open-ended sentences, which were introduced in April 2005 (under section 225 of the Criminal Justice Act 2003) on the premise that rehabilitative treatment be available for these prisoners. Based on this treatment, release dates would be examined on a case-by-case basis by the Parole Board. However, in the recent judgement of James, Wells and Lee v. the United Kingdom, the deficiencies in the recently-abolished system were brought to light.

The case was originally brought by three British prisoners — Brett James, Nicholas Wells, and Jeffrey Lee — who claimed they had no realistic chance of accessing the rehabilitation courses that would qualify them for release. The three men had been convicted in 2005 for violent offences and had each been given indeterminate sentences. The trial judge had ordered that they serve, respectively, a minimum of two years, twelve months, and nine months. When these periods expired and they were still awaiting access to the relevant courses, the men claimed they were being unlawfully detained.

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Children’s Referendum – Proposed Thirty-First Amendment to the Constitution

The wording of the long-anticipated Children’s Referendum was finally released at 11.30am on September 19th 2012.  The exact wording, which appears on the website of the Department of Children and Youth Affairs, is as follows:

Proposed New Article 42A


1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2. 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

   2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4. 1° Provision shall be made by law that in the resolution of all proceedings –

          i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

          ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

   2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

(See here for the wording ‘as Gaeilge’.)

The Referendum itself will take place on Saturday November 10th 2012. If passed, the wording will be inserted into the Irish Constitution as Article 42A. Information leaflets will shortly distributed to households across the Republic.

What are your initial reactions to the wording?

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The rights of the marital family under Irish law

Article 41 of Bunreacht na hÉireann confers “inalienable and imprescriptible rights” on the family and declares these rights as being “antecedent and superior to all positive law”. These rights are conferred on the family as a single unit, and not on the individuals that make up that unit. This was summed up succinctly by Costello J in Murray v. Ireland [1985] when he described the rights as belonging to “the institution itself”. But what exactly are these rights? They are not enumerated in the Constitution and so, once again, it has been left to the courts to do so.

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