Changing how the law works: Conventions from another time failing

Legislation intended to change how the legal professions do business was unveiled in 2011. Those proposed reforms were a key condition of Ireland’s EU-International Monetary Fund rescue package as the Troika recognised, as many Irish people do, that the status quo, if it is to serve all of society optimally, must evolve.

It is not surprising — in fact it is sadly all too predictable — that those 2011 proposals were, in the face of forceful lobbying from the legal professions, emasculated beyond effectiveness. Last week, a relatively minor high court case indicated why those modernising, shine-the-light-in changes were stonewalled so very determinedly.

Mr Justice Michael Twomey reduced an award which had been made to a garda, who suffered a minor injury chasing a suspect, from €20,000 to €8,000. Giving his ruling, Mr Justice Twomey pointed out that legal costs involved will be “a multiple” of the €8,000 award.

This was, he said, because every garda compensation case, “no matter how minor” must be heard in the high court, imposing considerable costs on the taxpayer, who picks up the tab for the State and for the garda involved. Mr Justice Twomey, all too sensibly, suggested these cases could be dealt with far more cheaply in a district or circuit court setting or, at no legal cost, by the Personal Injuries Assessment Board. And why not? He may not have been traduced as a class traitor at the Law Library’s high table, at least not too loudly, for exposing what Arthur Daley might have described as “a nice little earner”. It seems bizarre, even by the standards of a century or two ago, that this unnecessary high-court-only obligation, one that guarantees a stiff bill for the exchequer and a bloated income for legal teams, stands today, especially as it would hardly require a referendum to resolve.

This lucrative, albeit relatively minor convention, may not have been in the Troika’s sights when they made their reform demands but it does seem to epitomise the culture that ensures that the delivery of justice is at least as commercially rewarding as it is socially important. Justice may be blind but it is very aware of where the next cheque is coming from.

Another aspect, one of far greater importance but influenced in part by the same culture, of how justice is dispensed has got belated attention following events at recent rape trials north and south of the border. This overdue debate is provoked by a deep sense of anger at how some victims of rape or sexual assault are treated, or perceived to be treated, while their cases are heard in court. That anger is exacerbated by the way in which some trials are reported or sensationalised — even if unregulated social media is the primary platform facilitating that deeply hurtful voyeurism.

We have a long, unsatisfactory history of being unsupportive of the victims of sexual assault — after all, just two years ago a Eurobarometer poll found that 21% of Irish people think sex without consent is acceptable in certain situations

This record is so dark that many crimes go unreported and predators remain free. This must change and our courts must become a place where a victim can feel safe and respected rather than the scene of another chapter in an awful ordeal. Doing that without compromising that non-negotiable principle — innocent until proven guilty — will be a huge challenge but it must be done; those accused have rights too.

Last week, John Gillen reported that Northern Ireland’s courts “are not working” in rape cases and made more than 200 recommendations. Later this year or early next year, a group working to the same mandate will report in the Republic. Neither of those reports were needed to highlight this problem but let’s hope Government finds the courage to act on recommendations that will almost inevitably challenge legal convention — in contrast to its failure to take Troika privilege-challenging advice on the legal professions.

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