SUPREME COURT:Judgment was delivered on May 27th by the Chief Justice, Mr Justice Murray; Mrs Justice Denham, Mr Justice Hardiman, Mr Justice Geoghegan and Mr Justice Fennelly concurring
JUDGMENT
A number of appeals by Mr O’Riordan against a High Court ruling rejecting his challenge to the Supreme Court sitting in divisions, to members of the High Court sitting occasionally in the Supreme Court, and to the constitution of the Court of Criminal Appeal, were rejected.
BACKGROUND
Mr O’Riordan was a frequent litigant with numerous appearances before the Supreme Court, who on more than one occasion objected to the fact that his appeals were heard by the Supreme Court consisting of less than its full quota of judges, that is, by divisions of three or five judges.
He took proceedings to the High Court claiming that this was unlawful and unconstitutional. He also objected to the provision whereby a judge of the High Court may be invited to sit on the Supreme Court if a judge was ill or otherwise unavailable, and also to the provision whereby a judge of the Supreme Court could sit as a High Court judge.
He also put forward certain submissions with regard to the Court of Criminal Appeal, though he never appeared before that court, having never been charged with or convicted of an indictable offence. He said that the only person entitled to appoint judges to the Court of Criminal Appeal is the President, who had not done so, and that a person who was a judge of the Supreme or High Court was not entitled to sit in another court, like the Court of Criminal Appeal.
Mr Justice Murray said that the practices to which Mr O’Riordan objected were mandated by statute. He had therefore sought declarations of repugnancy to the Constitution of various sections of the Statutes relating to these practices.
Mr O’Riordan claimed that the oath judges made on taking office meant they could only sit in the court to which they were appointed. He also referred throughout his claims to ‘‘the [Full] Supreme Court’’. He claimed that by providing for the Supreme Court to contain ‘‘not more than seven ordinary judges’’ along with the Chief Justice and the President of the High Court, who is an ex officio member, the 1995 Courts and Court Officers Act meant that the number and composition of the Supreme Court was no longer clearly regulated or defined by law, as required by the Constitution.
DECISION
Mr Justice Murray said that the declaration made by every judge on taking office had nothing to do with the jurisdiction to which they were appointed, but to the manner in which they discharged their judicial function. Even before the enactment of the Constitution Acts governing referring to the courts envisaged that a judge appointed, for example, to the Supreme Court would sit on occasion in the High Court.
He also pointed out that the Constitution referred to the ‘‘the Supreme Court’’ and nowhere to ‘‘the Full Supreme Court’’, and it specifically envisaged that the Supreme Court may sit in a division less numerous than the number of judges in the Court, and the Statute specifically envisages it sitting in divisions.
There were just two instances where the Constitution envisaged a specific number of judges sitting: where the President resigns, dies or is removed from office; and where the constitutionality of a law is tested under Article 26, in both of which a minimum of five judges was required. These were the only instances where a minimum number was specified, he said.
It was open to the Constitution or the law to provide for the Supreme Court to sit en banc, as the US Supreme Court did, but it had not done so. Instead, like the Appellate Division of the House of Lords, it sat in divisions.
Turning to the question of judges sitting in courts other than those to which they were appointed, he referred to Mr O’Riordan’s claim that the oath made by a judge included reference to the jurisdiction he or she would sit in. Mr Justice Murray pointed out that the wording of the oath was identical for all jurisdictions. ‘‘The declaration is relevant to any judicial function exercised by the judge in whatever capacity assigned to him or her by law,’’ he said.
This provision was envisaged by legislation in place prior to the enactment of the Constitution, and if the drafter had wished to alter it they would have done so.
He pointed out that Mr O’Riordan had made similar objections to High Court judges sitting on tribunals in inquiry, and had lost this case also. The points made in that judgment were relevant here. In the High Court judgment appealed here, the judge also questioned whether the appellant had locus standi to argue the points made, as there was no reason to believe that he had ever been a litigant before any judge sitting as an additional judge of the High or Supreme Court.
The issue of locus standi also arose in relation to Mr O’Riordan’s challenge to the constitutionality of the Court of Criminal Appeal, as he had never committed an indictable offence and therefore would have no occasion to appear before it.
He had once sought to intervene in a case involving John Gilligan, who had been convicted of serious criminal offences, claiming the judges were acting in ‘‘an unconstitutional manner’’, but was not permitted to do so. His attempted intervention did not confer locus standi on him, as if it did anyone could acquire locus standi by going along to a hearing and attempting to intervene without invitation or entitlement, Mr Justice Murray said.
The rules of locus standi required that a person had a personal standing in relation to the issues being tried. This was not so in the case where Mr O’Riordan had sought to intervene.
Mr Justice Murray said that all citizens have a right of access to the courts. ‘‘But this . . . is for the purpose of resolving the justiciable issues and not for the purpose of constituting the courts as a sort of debating society or deliberative assembly for the discussion of abstract issues,’’ he said.
Dismissing the appeal, he also upheld the order made by the High Court judge that any further applications from Mr O’Riordan for leave to commence proceedings should be made in writing, supported by an affidavit referring in full and complete detail to all earlier applications, motions, actions or proceedings of any nature in which the matters he sought to raise had been raised previously.
The full judgment is on www.courts.ie
The appellant represented himself; Nuala Butler SC and Roisin Lacey BL, instructed by the Chief State Solicitor, for the State