The judiciary must be scrutinised

CLARE Daly has received some flak for drawing a few kicks at a judge in the Dáil, writes Michael Clifford. 

The criticism centred on parliamentary privilege, which, once she was suitably shod, she used to put the boot into the judge and the way she believed he had handled her case concerning a speeding offence.

A couple of newspaper columnists were annoyed with her, as was the odd letter writer, and some baby barristers on Twitter. All felt that she had strayed hopelessly across the separation of powers to pursue a personal agenda.

What was noticeable was the lack of commentary about her treatment before Judge Desmond Zaidan at Naas District Court. It was as if any such criticism is out of bounds, and redundant in any event because judges apparently can do as they please in their courts.

The detail of Ms Daly’s case throws up a few features that should be noted. On Thursday, October 13 she appeared at Naas District Court to answer a charge of speeding at 59km/h in a 50km/h zone. Her case was the last on a list of 188.

She had a pressing engagement in Leinster House — a committee hearing into the reappointment of the chief executive of HorseRacing Ireland. The issue had a whiff of “jobs for the boys” about it, which is the kind of thing that energises Ms Daly as a parliamentarian.

In Naas it looked as if she would be waiting all day, so at some stage she instructed her solicitor to deal with the matter while she left and drove back to Dublin.

Her prediction of a long day’s waiting was correct. The court never got through the other 187 cases. Towards the end of the day Judge Zaidan adjourned cases 175 to 187 for another day, but decided to hear 188.

Ms Daly’s solicitor, Cairbre Finan, told the judge his client had been there but had to leave for an urgent appointment. Not good enough, said the judge; he would issue a bench warrant. What does she do for a living, he asked.

“She tells me she is a TD,” Mr Finan said.

The judge said that a TD should know better than not to be present because a TD made the law.

Now it is possible that the judge did not know Ms Daly is a TD, and the kind of TD who is extremely vocal on issues like garda corruption, water charges, the use of Shannon by the US military and other uncomfortable stuff. It’s entirely possible he didn’t know what she did for a living, but he did decide to hear her case at the back of the queue while adjourning the other 12 cases.

The bench warrant was issued. The following Tuesday a garda was dispatched from Newbridge to Swords District Court, where he met Ms Daly by appointment. It must have been a relief to the garda that she hadn’t fled the State or gone into hiding. The warrant was duly executed at the Swords court.

On October 26, Ms Daly reappeared at Naas to answer the original charge and explain why she had absconded on the first day. She was luckier with the list that day, her case being number 58 out of 101.

Shortly before lunch, Judge Zaidan had to make a call on the heavy caseload and instructed that numbers 51 to 57 and 59 to 101 be transferred to another judge in the building. He was keeping number 58.

After lunch, when the case was called, Mr Finan said his client had not meant any disrespect by leaving before the case had been heard the previous day. He also said she now wished to change her plea from guilty to not guilty.

Judge Zaidan wasn’t playing ball. “Today the case is listed for sentencing,” he said. He allowed a brief recess for the solicitor to consult with his client.

When the case returned, Mr Finan said he would have to excuse himself following the change of instruction. The judge reiterated that there would be no change of plea. He then invited the prosecuting garda to outline the facts ahead of sentencing.

When that was done Judge Zaidan asked Mr Finan what he had to say for his client. At this, Ms Daly interrupted and said that was very unfair on Mr Finan.

The judge cut her off, telling Ms Daly to “stand up straight”. This kind of instruction will be familiar to some teenagers who habitually slouch as an expression of rebellion or angst, but would probably be alien to the vast majority of citizens who make it past their 18th birthday.

Following that, the judge reverted to Mr Finan. He then summarised the case himself and fined Clare Daly €300.

Ms Daly has indicated she is appealing the case. That is the right of any citizen in any court, but an appeal costs. It’s another day in court for a solicitor, another day out of work for the appellant. If, at the end of the process, the judge hearing the appeal grants it, the extra costs can’t be recouped.

Beyond appealing a verdict, any citizen who feels he or she has been treated with discourtesy or unfairly before a judge has no comeback. The judge can do what he or she likes, and the only repercussion is having a verdict overturned by a higher court.

Ms Daly may well feel she had been treated with discourtesy at the very least, but that does not imply that Judge Zaidan meant it thus. He may well have felt aggrieved by what he regarded as disrespect for his court.

The reality is that disputes of this kind highlight that there is no forum to refer grievances about the behaviour of judges in court.

For 15 years now a judicial council designed to deal with such matters has been promised, but there is still no sign of it appearing, despite being listed as a priority with the current administration.

In England and Wales they have an equivalent body, the Judicial Council Investigation Office (JCIO), which deals with around 2,000 complaints a year. Proportionately, this might suggest one could expect in the region of 300 here if a similar system existed.

In Britain, spurious cases are weeded out. Sanctions such as written advice and reprimand can be imposed by the JCIO, and in extreme cases removal from office, although such a sanction would require constitutional change in this jurisdiction.

But it’s nothing more than common sense that some oversight body has to be established here, as apart from anything else it would improve the quality of the administration of justice for the citizens, and that’s what the courts are supposed to be about.