Caseload may cause difficulty

The question of what happens to the caseload of the former Supreme Court judge, Mr Hugh O'Flaherty, may cause some difficulty, with cases having to be reheard sometimes at considerable additional expense, legal sources said yesterday.

As a judge of the Supreme Court, Mr Justice O'Flaherty regularly chaired the Court of Criminal Appeal, in which there is an outstanding number of cases for which judgments have been reserved.

Because Mr Justice O'Flaherty is no longer a judge, his judgments may not now be given in these cases. As one eminent senior counsel said yesterday, "the judgment is deemed to have effect on the day that it is delivered. Anything not already delivered by Hugh O'Flaherty cannot be delivered."

While some reports yesterday put this figure at 20 cases, the source said it was "more like 10". These cases will now probably be reheard by the Court of Criminal Appeal involving extra expense for the appellants, although the counsel said this "would not be millions".

The counsel also said that where an appellant was in prison "where there is a chance that he ought not to be there, the case can be heard very speedily".

However, further problems arise in relation to Mr O'Flaherty's caseload at the Supreme Court, where nearly all judgments are reserved.

As in the Court of Criminal Appeal, no decision of Mr O'Flaherty's may now be given, as he is no longer a judge. This will not affect all the cases on which he sat, only those where his opinion would have affected a majority verdict of the five judges sitting.

One counsel who practices regularly at the Supreme Court told The Irish Times that these cases may be restated in front of the Supreme Court, with another judge in Mr O'Flaherty's place. "It is likely that the real difficulty will be felt in the Supreme Court rather than in the Court of Criminal appeal," he said.