High Court: State has constitutional duty to make reasonable efforts to assign an Irish-speaking judge

About this case:

• Citation:
  [2019] IEHC 503
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Úna Ní Raifeartaigh

Stating that the courts should construe Article 8 of the Constitution in a manner which gives positive and practical effect to a litigant’s right to use the Irish language, Ms Justice Úna Ní Raifeartaigh said the State has a duty to make “at least some effort to assign a bilingual judge”.  

Background

The applicant, Diarmaid Ó Cadhla, was brought up in a Gaeltacht area in Waterford. He stated that Irish is his native language and he conducts his business through Irish as much as possible.

In 2017, Mr Ó Cadhla was charged with criminal damage in connection with blacking out street names in Cork referring to (Queen) Victoria. Mr Ó Cadhla wrote to the clerk of the District Court in Cork requesting that his trial be conducted in Irish.

In November 2017, District Judge Olann Kelleher said he knew Mr Ó Cadhla from a previous occasion and knew he could speak and understand English and that he intended to conduct the hearing in English.

The proceedings were adjourned, and at the hearing on 4 December 2017, an interpreter was provided for Mr Ó Cadhla. Judge Kelleher rejected an application for the hearing to be conducted in Irish and for a judge who understood Irish to facilitate this, and Mr Ó Cadhla asked for his case to be appealed by way of case stated to the High Court. This application was also rejected, with Judge Kelleher stating that while Mr Ó Cadhla had a right to present his own evidence and to cross-examine witnesses in Irish, he did not have a right to a hearing in Irish with a judge who had Irish.

The proceedings were adjourned, and on 18 December 2017, Mr Ó Cadhla’s legal team made submissions to Judge Kelleher in Irish. Mr Ó Cadhla averred that since the interpreter was unable to interpret for both Mr Ó Cadhla and the judge simultaneously, Mr Ó Cadhla’s counsel switched to English during the proceedings.

Mr Ó Cadhla’s counsel continued to request for the hearing to be conducted in Irish, however, Judge Kelleher rejected this in the same terms as before. He entered a plea of not guilty on behalf of Mr Ó Cadhla and adjourned the proceedings.

Application for judicial review

Mr Ó Cadhla instituted the present judicial review proceedings, seeking, inter alia, the following reliefs:

• A declaration that there is a constitutional duty and/or a duty pursuant to s.8 of the Official Languages Act 2003 to nominate a judge with Irish for the purposes of his hearing in the District Court;
• A declaration that Judge Kelleher acted ultra vires in refusing to assign the summary criminal proceedings to a judge with Irish;
• An order of mandamus directing the State to nominate a judge with Irish for his hearing in the District Court;
• A prohibition order preventing the DPP from continuing the summary criminal proceedings until:
  • A judge with Irish has been nominated
  • Mr Ó Cadhla has entered a plea of guilty or not guilty
  • Judgment has been delivered in these judicial review proceedings
• An order of certiorari quashing Judge Kelleher’s decision to refuse Mr Ó Cadhla’s request to have a judge with Irish available.

A number of solicitors swore affidavits on behalf of Mr Ó Cadhla stating that they had experience with clients who used Irish in court, facilitated by Irish speaking judges; that interpretation from Irish to English could be flawed or defective, and that an Irish speaking judge was needed to keep matters on the right track.

On behalf of the State, it was submitted that it was obvious from the Official Languages Act 2003 that the Oireachtas considered that any “disadvantage” caused to a person who wished to conduct their side of a court case in Irish could be “cured” by the process of interpretation/ translation. 

Ms Justice Ní Raifeartaigh said that while legislation must be interpreted in accordance with the constitution, the reverse was not true – and that it was not appropriate to interpret the constitution by reference to legislation. She said the Official Languages Act 2003 did not confer any legislative right regarding the assignment of a bilingual judge, and therefore the issue arose firmly in terms of constitutional right or duty.

Ms Justice Ní Raifeartaigh said the net issue was whether Article 8 of the Constitution, which gives the Irish language the status of the first official language of the State, generates any duty on the part of the State to provide a bilingual District Judge to try a case where the accused wishes to present his part of the case through the Irish language; and if so, the extent or scope of the duty.

Ms Justice Ní Raifeartaigh said it had been assumed that appointing an interpreter satisfied the constitutional obligations placed on the State by Article 8, but that it was apparent that the Supreme Court in Ó Maicín v Éire [2014] 4 IR 477 envisaged Article 8 as requiring something more than that – that the question of having an Irish-speaking decision maker in a criminal case should only be displaced if necessary.

In Ó Maicín, the necessity and displacement was because of the constitutional imperative of having a representative jury, twinned with the (current) practical impossibility of having a jury which was both Irish-speaking and sufficiently representative. Ms Justice Ní Raifeartaigh said there was no competing constitutional imperative in the present case, and there must be some duty for the State to make “at least some effort to assign a bilingual judge”.

Ms Justice Ní Raifeartaigh said that “to refuse the application for a bilingual District Judge simply because the applicant spoke English” was “contrary to the whole spirit of Article 8 together with the jurisprudence on it”. As such, Ms Justice Ní Raifeartaigh granted the order of certiorari sought.

Stating that she was open to hearing further argument on the appropriate declaration to be granted, Ms Justice Ní Raifeartaigh said she would be inclined to grant a declaration that the Minister for Justice and Equality has a duty to make reasonable efforts to assign a bilingual District Judge for Mr Ó Cadhla’s forthcoming criminal trial.

• by Seosamh Gráinséir for Irish Legal News