Allow me to be Frank
Irish law鈥檚 centre of gravity is moving online 鈥 slowly but surely 鈥 says Chief Justice Frank Clarke.
Chief Justice Frank Clarke says that there鈥檚 not much he misses from the Ireland of his childhood, but he is thankful for the warmly supportive family life he had, and his close relationship with his mother, who valued education and egged him on in life.
At the pinnacle of his profession, he likes to live in the moment, and has always enjoyed each stage of life for what it offers. He never understood the idea of hankering to be a different age, whether older or younger.
鈥淭here were nice things about being a teenager, but I鈥檓 not a teenager any more. At this age, I get to do a very interesting job, which I wouldn鈥檛 have been able to do at 24, but I did other things at 24, and I probably ran around a lot faster!
鈥淚 always felt I was lucky. I was a teenager during the 1960s, which was a very optimistic and expansive time, which helped people like me to feel there were wider opportunities than perhaps might have existed in the past. It was a nice time to grow up.鈥
Old head on young shoulders
An only child whose father died when he was 11, he shouldered adult responsibilities at a younger age than most:
鈥淢y mother would talk to me about things, when I was 15, that the average 15-year-old wouldn鈥檛 have to bother about.
鈥淚 was good at mathematics, so she would often talk to me about what she was doing with the family finances. She would have very much encouraged me to try and do whatever I wanted to do.鈥
As a first year maths and economic student at UCD, he 鈥榝ell in鈥 with debating clubs and other future lawyers 鈥 and loved it. He then identified the King鈥檚 Inns as his career choice, wondering how this would go down at home, but he received nothing but encouragement.
The Supremes
The chief justice wants the legal profession to not just modernise, but to innovate and embrace the digital era. In fairness, he鈥檚 leading by example, scrolling through his smartphone camera roll like a pro.
鈥淚鈥檓 not bad for a person of my age,鈥 he concedes, and offers that he is reasonably tech-minded.
He reveals that the Supreme Court has its own WhatsApp messaging group, called 鈥楾he Supremes鈥.
Modern methods of communication are marvellous, he agrees, once one is not 鈥榯oo鈥 careless about what is said on them. But therein lies a paradox, because expanded means of communication are a trap for the unwary.
Private eye
The chief justice ponders the blurred lines between what is public and what is private in the digital era. The distinction has not yet been properly drawn, he feels, given the prevalence of public shaming over privately expressed thoughts.
鈥淏ecause some bits of social media are public, people don鈥檛 yet make the distinction between what is public and what is a private conversation. If you say something privately, then it is private.
鈥淚n the past, it would have been regarded as unconscionable to go reading your friend鈥檚 private letters in their bedroom because you happened to be there, so why is it any different now?
鈥淚f they went on about something in public, down at the local hall, you could tackle them. Opinions that might have been aired late at night in the pub to one person are now being published to everyone in the country.鈥
Phantom menace
On the growing menace of unguarded online commentary on matters before the courts, sometimes from elected public representatives, the chief justice says he has taken a limited step 鈥 but the only one that is within his direct control 鈥 which is to ban direct comment from a courtroom.
鈥淚f there鈥檚 to be any wider control over online commentary, it really would require wider legislation. But I think there are risks, particularly to jury trials. The professional legal media know the rules.
"The same doesn鈥檛 necessarily apply with amateurs, or people with an agenda. It is probably something that may well need legislation. The judiciary can鈥檛 do it by themselves.
鈥淚t needs legislation, because we can control what happens inside the courtroom; but we can鈥檛 control what happens outside, without a law. If someone goes home and tweets at night, there isn鈥檛 much we can do about it.鈥
The chief justice believes that instant takedown orders from a court would be one effective step, with potential penalties for serious breaches. It鈥檚 part of a wide-ranging problem though, he says.
Need for more judges
鈥淚 think it鈥檚 fair to say that we would all feel that there aren鈥檛 enough judges in Ireland, certainly in the trial courts.
鈥淗appily the Court of Appeal has got six extra judges recently, and that should be enough to solve their problems. And the Supreme Court is fine for numbers. But I think that the three courts that hear substantive cases, I would have thought, are all understaffed.
鈥淚f you look at the number of judges per head of population in Ireland compared with any other country, we鈥檙e at the very bottom end of the scale.
鈥淚 have been trying to persuade Government to set up a working group to take an objective look at the numbers we need, not just now, but into the medium term. I still remain hopeful that that will be done 鈥 I think it will be done.鈥
Why such a dearth of judges?
鈥淢aybe for historical reasons 鈥 the population fell under three million in the late 鈥50s. It鈥檚 now nearly five million. Also, we are living in a more complex society, so that tends to generate more litigation. Some of the litigation is, of itself, more complex and, therefore, will take longer.鈥
While a combination of all of those factors has significantly increased the need for judges, he believes that pay and conditions are adequate to attract the necessary talent.
鈥淭here have been a lot of very good appointments to the superior courts in recent times, so I think it鈥檚 hard to argue too strongly that pay is working as a deterrent,鈥 he says.
While he expects a reasonable influx of cases here, post-Brexit, he cautions that Ireland is reasonably small, and London is not going to stop being a major centre for international litigation just because of Brexit.
鈥淭here may be some elements of the business that may want to remain within the EU. A small share of what London has would be significant in Ireland鈥檚 context.鈥
Deflection tactics
He reckons that Irish people are slightly above average in their appetite for litigation, comparative to other jurisdictions, and muses that this could be partly the result of a historic feeling of being left on the outside of the State and institutions.
鈥淲e need creative ideas for discouraging people who don鈥檛 really need to go to a court to find a solution to their issues.鈥
This will give the courts more time to deal with their core business, he believes. 鈥淲e would need fewer judges if we had more ways of diverting people away from unnecessarily going to court.鈥
Access to justice
As part of his vision for the next century for Ireland鈥檚 courts, the theme of improving access to justice is particularly close to Frank Clarke鈥檚 heart.
鈥淵ou can have great laws and great judges and fine lawyers, but if the system doesn鈥檛 reasonably allow people to access it, then it isn鈥檛 really much use,鈥 he says.
鈥淭here are a number of strands, and not all of them are within the control of the judiciary.鈥
鈥淭he Courts Service has adopted a major vision, which will involve a significantly increased use of IT, both in administering the courts, filling documents, and in presenting evidence. We would like to think that that will make courts a lot more efficient and easier to use, both for practitioners and their clients 鈥 and therefore cheaper.
鈥淪lowly but surely, the centre of gravity of everything that happens in the courts is going to go online,鈥 he predicts. 鈥淧eople are going to have to start using it.鈥
Ancient technology
Courts鈥 information technology is quite ancient, because recession cutbacks meant the tech budget more than halved in the deepest recession from 2009-12.
鈥淚t became a sticking plaster job, to keep the show on the road,鈥 he says.
But the hiatus may have yielded some advantages, he concedes. 鈥淲e are a long way behind, but we can also see what works 鈥 and what hasn鈥檛 worked 鈥 in other countries.
鈥淪ome of the Australian states have gone almost totally digital, in a fairly quick period of time. And it seems to have worked, so we鈥檝e been taking advice from them.
鈥淚t鈥檚 not rocket science, but you need systems that are secure and can be worked easily by the people interacting with them 鈥 that give added value,鈥 he says.
鈥淭he only point in doing this is if it creates efficiencies for everyone concerned,鈥 he adds.
Legal developments
As regards the new Personal Injuries Committee, he comments: 鈥淚 have emphasised how it is independent of everyone, including me, and I think, because of that, it should be allowed to go about its work, and not be interfered with or 鈥榮trong-armed鈥 by anyone 鈥 even me!鈥
And in relation to the need for more civil legal aid, he says: 鈥淓very year in the budget, there are many mouths wishing to be fed. When you鈥檙e competing with people on trollies in hospitals or schools, or even with more policemen on the beat, it鈥檚 sometimes hard to win the argument, but I do believe there鈥檚 a strong case for an increase in civil legal aid. Criminal legal aid is fine, it works well, but civil legal aid is the poor relation, and it deserves better.
鈥淥bviously people with plenty of money can go to court 鈥 and sometimes people with no money, where there鈥檚 no risk of a practical costs order being of any relevance, and who can persuade lawyers to take their case, either on a pro bono or no-foal, no-fee basis, and have, perhaps, greater access than people who have something to lose.
鈥淏ut it鈥檚 the people in the middle who don鈥檛 have enough money to pay [for court], but who have a lot to lose...
鈥淚 don鈥檛 think you鈥檙e ever going to have a perfect system, but it鈥檚 allowing people who may well have rights that could be enforced in court to have a reasonable chance of doing that 鈥 that has to be the aim of everything.鈥
