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Column: Heather Perrin’s conviction exposes flaws in the system

The system by which Ireland appoints its judges is now under scrutiny, writes Sarah McCabe – so how does it hold up?

Sarah McCabe

THE CONVICTION OF former District Court judge Heather Perrin for deception, after she led an elderly client to leave half of his estate to her children while acting as his solicitor, brings the methods by which Ireland appoints its judiciary under scrutiny once again.

This system has repeatedly been accused of a lack of transparency, a failure to perform basic garda checks and evidence of political influence. Even the most revered judge in the country, Chief Justice Susan Denham, has appeared to express implicit concern.

The current model used to appoint judges begins with the Judicial Appointments Advisory Board (JAAB), which is responsible for selecting at least seven qualified candidates for each available position. It was created after the collapse of the Fianna Fáil – Labour coalition in 1994, following Taoiseach Albert Reynolds’ appointment of Attorney General Harry Whelehan as President of the High Court. This had caused public outrage, as Whelehan had just presided over a nine-month delay in the processing of a warrant for the extradition of clerical paedophile Brendan Smyth to the UK.

The idea behind JAAB is that a body made up of eminent members of the legal community (including the Chief Justice, the three presidents of the High Court, Circuit Court and District Court, and the Attorney General) will be best placed to determine the most qualified and appropriate candidates for any vacant judge positions. However the ultimate decision is still left to the Government. The chosen candidate is then formally appointed by the President, who acts ‘only on the advice of the Government’ per Article 13.9 of the Constitution, and has no real discretion as to who is selected.

Garda check

JAAB, as it states in its annual reports (which it has only been required to produce since 2002), “does not have any function in deciding who should be appointed to judicial office. . . [and] does not give any indication of the relative merits of persons’ whose names it forwards to the Government.” No garda check or even consultation with local gardaí is required even though this would reveal any pending or previous complaints against candidates.

If an informal complaint had been made to gardaí about Heather Perrin’s professional conduct prior to her appointment as a District Court judge in February 2009, this might have been revealed by basic communication with her local Garda station. Instead, JAAB’s sole function is to establish whether applicants meet a general set of criteria or suitability. These include an appropriate degree of competence, probity and knowledge, suitable character and temperament, willingness to undertake recommended training and the provision, oddly, of a tax clearance certificate. No further information as to how these criteria can be satisfied are given. We don’t know why Perrin was considered an appropriate choice because JAAB is not required to release any written explanation of its reasoning to the public.

This lack of transparency has been criticised by both domestic and international senior legal professionals. In June the European Network of Councils for the Judiciary (ENCJ), which represents the collective bodies for judges throughout the EU, declared the appropriate method by which judges should be appointed. It clearly varies from the Irish process. Its recommendations (made at the end of a meeting in Dublin, funnily enough) include a requirement for a clearly defined and published set of selection criteria against which candidates for judicial appointment should be assessed. Any reports or comments from legal professionals used in the process, it said, should be recorded in writing and available for scrutiny. The appointing body should make its decisions in an open and transparent way.

Politics

The appointment of judiciary in Ireland is criticised not only for its lack transparency and proper vetting procedures, but also for being unjustly influenced by politics. Successive governments have been accused of appointing judges who have ties with the parties in power. It is not unreasonable to expect that most of the seven candidates nominated by JAAB will have political leanings, as most people do, and that the government will select the candidate who falls most in line with its party policies. It is also significant, given that they sit on the JAAB Board, that the Chief Justice, the presidents of the High Court, Circuit Court and District Court and the Attorney General are all single-handedly selected by Government.

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The ENCJ recommends that the recruitment or promotion of all judges should be the responsibility of a body independent of government. This view has been endorsed by Chief Justice Susan Denham, one of the most respected legal figures in the country. In September of this year another of the country’s most senior judges, Justice Peter Kelly, stated publicly that appointments to the Supreme Court are ‘purely political’ and called for an independent body to select judges. He said that JAAB ‘doesn’t really work’ and that some people who would make excellent judges were ‘passed over’ in favour of others who were not so well qualified. Several TDs have also called for candidates to be screened by the entire Dáil before a nominated judge is approved.

Some reforms have been considered. The Constitutional Review Group has considered the adoption of the US model, whereby appointments to the Supreme Court are made by the President but must also be confirmed by the Senate, following a public questioning of the candidate before the Senate Judicial Committee. The Review Group rejected this system, primarily citing the media and public scrutiny it creates – ‘A situation where opposition groups or the media could attempt to discredit a candidate selected by the Government as a means of discrediting the Government,’ and ‘the intense public scrutiny of candidates is likely to deter the sort of people who would be suitable appointees.’

Yet surely media and public scrutiny is desirable in the appointment of judges. It just might have revealed the indiscretions of Perrin, who is now the first judge to be convicted of a serious offense in the history of the state.

Sarah McCabe is a law and finance journalist. You can find her on Twitter at @sarahmccabe1.

More: I spoke to the Attorney General about impeaching Heather Perrin – Alan Shatter>

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