Supreme Court dismisses appeal challenging composition of Irish courts and standing to litigate abstract issues.

THE SUPREME COURT

411/06

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

DENIS RIORDAN

APPELLANT

AND

THE GOVERNMENT OF IRELAND, OIREACHTAS NA hEIREANN, THE ATTORNEY GENERAL AND

IRELAND

RESPONDENTS

JUDGMENT of the Court delivered by Murray C.J. on the 27th day of May, 2009.

This is the appellant’s appeal against the judgment of the High Court (Smyth J.) delivered on the 6th October, 2006, and the

consequential order made the 13th October, 2006. The appellant’s claims which are set out at some length in his twenty

page notice of appeal and his thirty-nine page submissions to this Court, relate in the main to the Constitutional provisions

and the statute law regarding the constitution and composition of the Supreme Court.

The appellant has been a frequent litigant with numerous appearances in this Court and has 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

to say that they were heard by divisions of three or five judges. This, he says in the present proceedings, is unlawful and

indeed unconstitutional. He also objects to the provisions whereby a judge of the High Court may be invited to sit on the

Supreme Court in certain circumstances and, by parity of reasoning, to the provision whereby a judge of the Supreme Court

may be invited to sit as an additional judge of the High Court in certain circumstances.

All of these points are agitated in the present proceedings. The appellant also advances certain submissions in relation to the

Court of Criminal Appeal although he has never been a litigant before that Court. This is because he has, of course, never

been charged with or convicted of an indictable offence triable in either the Circuit Court, the Central Criminal Court or the

Special Criminal Court, and has therefore never required to invoke the jurisdiction of that Court or have had it invoked

against him in the limited circumstances where this is possible at the suit of the Director of Public Prosecutions. He says that

the only person entitled to appoint judges to the Court of Criminal Appeal is the President of Ireland, who has not done so;

that no delegation of this power is possible; and that a person who is a judge of the Supreme Court or the High Court must

function only as such judge and is not entitled to sit in another court, such as the Court of Criminal Appeal, whether at the

request or on the appointment of the Chief Justice, or otherwise. Such judges he says have not made or subscribed the

declaration required by Article 34 of the Constitution as a judge of the Court of Criminal Appeal.

In making these and the other points to be set out below the appellant faces the difficulty that the practices to which he takes

great objection appear to be mandated by statute. Accordingly, on the hearing of this appeal the primary relief he seeks are

declarations of repugnancy to the Constitution as follows:

(1) Section 1(2)(b) of the Courts, (Establishment and Constitution) Act 1961as inserted by s.6(1) of the Courts and Courts

Officers Act, 1995, is repugnant to the Constitution. This relates to the statutory constitution of the Supreme Court.

(2) Section 3(2) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution. This relates to

the composition of the Court of Criminal Appeal.

(3) Section 7(3) of the Courts (Supplemental Provisions) Act, 1961 is repugnant to the Constitution. This and the next two

grounds relate to the ability of the Supreme Court to sit in divisions.

(4) Section 7(4) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.7 of the Courts and Courts Officers Act,

1995 is repugnant to the Constitution.

(5) Section 7(5) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.7 of the Courts and Courts Officers Act,

1995 is repugnant to the Constitution.

(6) Sections 1(3) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution. This and all

remaining grounds relate to additional and ex officio judges of the Supreme and High Courts.

(7) Section 1(4) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

(8) Section 2(3) of the Courts (Establishment and Constitution) Act is repugnant to the Constitution.

(9) Section 2(4) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

(10) Section 2(5) of the Courts (Establishment and Constitution) Act, 1961 is repugnant to the Constitution.

The last sentence of paragraphs 1, 2, 3 and 6 above have been added for ease of exposition.

It is proposed in this judgment to deal first with the first of these claims, relating to the constitution of the Supreme Court

itself. The exposition necessary to deal with this claim will involve a number of points of wider application in the plaintiff’s

appeal and may thus shorten the judgment at other points.

Before addressing this claim, however, it seems appropriate to deal with two points made throughout his argument by Mr.

Riordan. The first of these relates to the declaration a judge is required by the Constitution to make on his or her

appointment. The second relates to his characterisation of the Supreme Court as “the (Full) Supreme Court”.

Article 34.5 of the Constitution requires that every person appointed a judge under the Constitution shall make and subscribe

the declaration. This must be done before the new judge enters on his or her duties as such judge and in any event not later

than ten days after the date of his or her appointment or such later date as may be determined by the President. Any judge

who declines or neglects to make the declaration shall be deemed to have vacated his or her office. The form of declaration

is the following:

“In the presence of Almighty God I, , do solemnly and sincerely promise and declare that I will duly

and faithfully and to the best of my knowledge and power execute the office of Chief Justice and (or

as the case may be) without fear or favour affection or ill will towards any man and that I will uphold

the Constitution and the laws. May God direct and sustain me.”

In the case of a person appointed an ordinary judge of one of the Courts the office is invariably described as “Judge of the

High Court” or of whatever court is in question.

This declaration relates to the manner in which a judge will discharge his or her judicial functions in the office which he

holds, but not in any specified court. More to the point, the declaration has nothing to do with the jurisdiction which is

conferred on the judge: that derives from his appointment as a judge of a particular court and from the jurisdiction which is

intrinsic to, or conferred on, that Court by the successive Courts Acts. As will be seen, these Acts, even before the passage

of the Constitution, specifically envisaged that a judge appointed for example, to be a judge of the Supreme Court would

nonetheless sit on occasion in the Court of Criminal Appeal and as an additional judge of the High Court. But the essential

point is that the declaration relates to the manner in which a judge will carry out his duties, and does not in itself confer any

specific jurisdiction on him.

It is also important to bear in mind that the Constitution speaks of “the Supreme Court” and not of “the (Full) Supreme

Court”. On the contrary, as will be seen below, the Constitution specifically envisages that the Supreme Court may sit in a

division less numerous than the number of judges in that Court and Statute specifically envisages that the Court may sit in

divisions. Mr. Riordan’s phrase is apt to express his view that the Supreme Court should always sit en banc, with all its

members, but it is not a legal or constitutional phrase.

Article 34.2 of the Constitution provides “The Courts shall comprise Courts of First Instance and a Court of Final

Appeal”. And at Article 34.4. it is provided that:

(1) “The Court of Final Appeal shall be called the Supreme Court

(2) The President of the Supreme Court shall be called the Chief Justice

(3) The Supreme Court shall with such exceptions and subject to such regulations as may be prescribed by law

have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction

from such decisions of other courts as may be prescribed by law.

(6) The decision of the Supreme Court shall in all cases be final and conclusive”.

Article 35:

(1) “The judges of the Supreme Court, the High Court and all other courts established in pursuance of Article

34 hereof shall be appointed by the President.

(2) All judges shall be independent in the exercise of their judicial functions and subject only to this

Constitution and the law…”.

Article 36:

“Subject to the foregoing provisions of this Constitution relating to the Courts, the following matters shall be

regulated in accordance with law, that is to say:

(i) The number of judges of the Supreme Court and of the High Court, the remuneration, age of

retirement and pensions of such judges,

(ii) The number of judges of all other courts, their terms of appointment and

(iii) The constitution and organisation of the said Courts, the distribution of jurisdiction and

business amongst the said courts and judges and all matters of procedure.”

Having regard to those provisions, the appellant’s first challenge is to s.1(2)(b) of the Courts (Establishment and

Constitution) Act, 1961 as inserted by s.6(1) of the Courts and Courts Officers Act, 1995. This provides:

“(2) The Supreme Court shall be constituted of the following judges -

(a) The President thereof namely An Proimh-Bhreithneamh (The Chief Justice) and

(b) Not more than seven ordinary judges each of whom shall be styled ‘Breithneamh den Chúirt Uachtarach’

(‘Judge of the Supreme Court’).

Mr. Riordan’s case is as follows:

(1) “Article 36.1 of the Constitution requires that the number of judges of the Supreme Court ‘shall be regulated in

accordance with law’.”

(2) The statutory provision last quoted is the law which purports to do this.

(3) Prior to the passage of the present measure, previous Acts regulating the number of judges in the High Court had

referred to a precise number. For example, prior to amendment, s.4(1) of the Courts (Supplemental Provisions) Act, 1961

stated that:

(1) “The number of ordinary judges of the Supreme Court shall be four”.

(4) The appellant relies on a dictum of Murray C.J. delivering the judgment of the Court in Curtin v. Dáil Eireann [2006] 2

I.R. 556 as follows:

“… words denoting numbers, places or identified persons admit of no debate”.

(5) He says that the phrase “not more than seven ordinary judges” is not the specification of a number of judges with the

result that the composition of the Supreme Court is no longer clearly defined or “regulated” by law. The statutory regulation

would be complied with if the Chief Justice sat alone or with any number of ordinary judges up to seven.

(6) There is now a lack of clarity and precision in the constitution of the Supreme Court. The actual constitution of the

Supreme Court on any particular day on which it sits to conduct its judicial business is determined by an administrative

decision whether of the Chief Justice or of another party: this is not what is envisaged by the Constitution.

(7) The appellant refers to s.7 of the Courts (Supplemental Provisions) Act, 1961 which at subsection (4) provides as

follows:

“The Chief Justice or, in his absence, the senior ordinary judge of the Supreme Court for the time

being available may determine that an appeal to or other matter cognisable by the Supreme Court, not

being a matter so cognisable under Article 12 or Article 26 of the Constitution or a question of the

validity of any law having regard to the provisions of the Constitution, is to be heard and determined

by three judges and, where such determination is made, the appeal or matter to which the

determination relates shall be heard and determined by three judges of the Supreme Court, including

judges who are by virtue of subsection (3) or (4) of section 1 of the principal Act, additional judges of

the Supreme Court.”

This provision was substituted by a new subsection, by s.7 of the Courts and Court Officers Act 1995, as follows:

7 .—Section 7 of the Act of 1961, is hereby amended by the substitution of the following subsections for

subsections (3) and (4):

"(3) The Supreme Court may sit in two or more divisions and they may sit at the same time.

(4) Subject to subsection (5) of this section, the Chief Justice or, in his or her absence the senior ordinary judge

of the Supreme Court for the time being available, may determine that an appeal to or other matter cognisable by

the Supreme Court may be heard and determined by a division of five or three judges of the Supreme Court,

including judges who are by virtue of subsection (3) or (4) of section 1 of the Principal Act, additional judges of

the Supreme Court.

(5) An appeal to or other matter cognisable by the Supreme Court under Article 12 or Article 26 of the

Constitution or a question of the validity of any law having regard to the provisions of the Constitution shall be

heard and determined by not less than five judges of the Supreme Court including judges who are, by virtue of

subsection (3) or (4) of section 1 of the Principal Act, additional judges of the Supreme Court.".

(8) Unless, according to the appellant, this power is exercised there is no general statutory regulation of the composition of

the Supreme Court. This, says the appellant, is plainly contrary both to the letter and spirit of Articles 36 of the Constitution,

quoted above.

In answer to the foregoing arguments, the respondents point out that, in the constitutional provisions relied upon,

there is in fact no requirement as to the number of judges who must constitute the High Court or the Supreme

Court in any case. Indeed, neither Article 34 nor Article 36 imposes any requirement that the Supreme Court sit

as a multi-judge court in all cases or precludes the High Court from sitting as a multi-judge court at its own

discretion. The High Court in fact does this when it is thought desirable that a particular case be heard by a

“divisional court”.

There are two other constitutional provisions specifying the number of judges who must sit in the Supreme Court on

particular occasions. By reason of Article 12.3.1 of the Constitution, the term of office of the President of Ireland is fixed at

seven years unless before the expiration of that period the President dies, resigns, is removed from office or:

“… becomes permanently incapacitated (such incapacity being established to the satisfaction of the

Supreme Court consisting of not less than five judges”. (Emphasis added)

Similarly, under Article 26, which makes provision for the President referring bills to the Supreme Court in order to have

their constitutionality determined prior to their being promulgated as law by presidential signature, it is provided that:

“… The Supreme Court consisting of not less than five judges shall consider every question referred

to it by the President under this Article for a decision…”. (Emphasis added)

The significance of these constitutional extracts is precisely that they are of that nature: constitutional provisions. They are

the only constitutional provisions whereby a particular minimum number of judges must sit for a particular type of business.

Even then, a number is not rigidly indicated, rather the phase “The Supreme Court consisting of not less than five judges” is

employed.

These two constitutional provisions plainly address matters of procedure within the Supreme Court and regulate them in the

way we have seen. It would clearly have been possible for the Constitution to state that a particular number of judges had to

sit for a particular type of business or that not more than a particular number of judges could sit in such a case. It adopted

neither of these courses but provided that “not less than” a particular number should sit.

The total number of judges of the Supreme Court has varied on a number of occasions since the foundation of the State.

The number was originally fixed at three in 1924, increased to five in 1936 and increased to the Chief Justice and “not more

than seven” ordinary judges by amendment to the Act of 1961 effected in 1995. Accordingly, at the time when the

Constitutional provisions quoted above were framed the Supreme Court consisted of a Chief Justice, four ordinary members

of the Court, and the President of the High Court as an ex officio member.

It is accordingly clear that in providing, by way of “regulation”, only that the Court should in certain circumstances consist

of not less than five members, the Constitution, in the Articles mentioned above, was specifically envisaging that not every

member of the Court might sit in such a case, at least if the ex officio member is taken into account. Indeed, a provision

requiring that certain matters be determined by a Supreme Court consisting of “not less than five judges” naturally envisages

that there will normally be at least five persons capable of sitting on the Court, and clearly implies that the Supreme Court

may well consist of more than five judges.

In regulating the composition of the Supreme Court, for certain purposes, as it does, the Constitution does not in any way

equate the number of judges thus fixed (not less than five) with “the (Full) Court” (a phrase of Mr. Riordan’s) or any such

construct. On the contrary it expressly envisages, and permits, that some one or more of the members of the Court may not

be sitting in any individual case. Since the amendment to the 1961 Act effected in 1995, it is particularly clear that the

Oireachtas envisaged this.

Speaking of the constitutional provisions now under discussion, the Supreme Court in Riordan v. An Taoiseach (No. 4)

[2001] 3 I.R. 365 at p.369 observed:

“Those are the only provisions to be found in the Constitution which require that a decision of a court

is to be given by not less than a specified number of the members of the Court. Their existence is

wholly irreconcilable with any alleged requirement that every matter coming before the Court in the

exercise of its appellate jurisdiction may only be decided by a court consisting of all the members of

the Court for the time being. No provision exists either in the Constitution or in statute law and given

the extent of the Courts appellate jurisdiction and the necessity to ensure, in the interests of the proper

administration of justice, its reasonably expeditious and economic dispatch, it would be remarkable if

any such provision existed”.

Accordingly the position is that the Constitution does not purport to fix the precise number of members of the Supreme

Court. Legislation requires that the Court consist of the Chief Justice and not more than seven ordinary judges, together with

the President of the High Court as an ex officio member. It is hard to allege that this arrangement is repugnant to the

Constitution when the Constitution makes no statement as to the number of members of the Supreme Court. Accordingly,

the plaintiff advances his case along the lines that the requirement to regulate the number of judges by law cannot be

complied with by providing that they shall be “not more than” any particular number, but that a specific number must be

specified.

The Court can see no basis on which an obligation (if such it is) to “regulate”, that is to provide by rule for, the number of

judges, cannot be met in the way it has in fact been met in our statute law. The fact that the Constitution itself regulates the

number of judges that sit in particular circumstances by the use of the formula “not less than” appears to the Court to mean

that the Constitution itself specifically contemplates regulation in that form and there is no difference whatever between a

“not more than” formulation and a “not less than” formulation in principle. Each envisages that practical exigencies may

arise which make it possible that more than the minimum number of judges should be able to sit, on the one hand, and on

the other that the business of the Court may be capable of being discharged with less than the total number of members of

the Court.

It seems to the Court that to interpret the Constitutional provisions in the way contended for by Mr. Riordan would actually

restrict, rather than expand, the regulatory power of the Oireachtas.

(2) Mr. Riordan’s second challenge, to Sections 7(3), (4) and (5) of the Act of 1961 (expressed at paragraph 3, 4 and 5 of

the Notice of Appeal) amounts in effect to a contention that the Court of Final Appeal in deciding any particular issue must

consist of all the members of the Supreme Court sitting together and may not consist of any smaller number of members of

the Court. This contention, or an issue difficult to distinguish from it, has come before the Courts on two previous

occasions, Riordan v. Ireland (No. 4) [2001] 3 IR 365 and State (Williams) v. Kelly [1970] IR 259. This latter case

predated the provisions of the Act of 1995 making particular provision for divisions of the Supreme Court sitting to deal with

particular cases. No constitutional issue was raised until Mr. Riordan did so.

Many of the arguments which were rehearsed in relation to Mr. Riordan’s previous submissions are relevant here also. The

fact is that there is no constitutional provision requiring that the Court of Final Appeal can consist only of all the members of

the Supreme Court sitting together. Indeed, as set out above, Mr. Riordan contends that the Supreme Court, under the

present legislative and constitutional regime, might consist of the Chief Justice sitting alone or of the Chief Justice

accompanied by any number of ordinary judges from one to seven. As was the case in relation to the previous point taken

(as to the number of members of the Supreme Court), the appellant’s case here reduces itself to the proposition that there

has been a failure to regulate this matter of procedure so that the question of the number of members of the Supreme Court

who may sit is left to the determination of the Chief Justice rather than being regulated by law.

The provisions of the impugned sections here, which are clearly in the nature of provisions to regulate certain matters to do

with the Supreme Court’s procedures, are as follows, as substituted by section 7 of the Act of 1995:

7 .—Section 7 of the Act of 1961, is hereby amended by the substitution of the following subsections for

subsections (3) and (4):

"(3) The Supreme Court may sit in two or more divisions and they may sit at the same time.

(4) Subject to subsection (5) of this section, the Chief Justice or, in his or her absence the senior ordinary judge

of the Supreme Court for the time being available, may determine that an appeal to or other matter cognisable by

the Supreme Court may be heard and determined by a division of five or three judges of the Supreme Court,

including judges who are by virtue of subsection (3) or (4) of section 1 of the Principal Act, additional judges of

the Supreme Court.

(5) An appeal to or other matter cognisable by the Supreme Court under Article 12 or Article 26 of the

Constitution or a question of the validity of any law having regard to the provisions of the Constitution shall be

heard and determined by not less than five judges of the Supreme Court, including judges who are, by virtue of

subsection (3) or (4) of section 1 of the Principal Act, additional judges of the Supreme Court.".

(7)(3) “Subject to subsection (4) of this Section, an appeal to or other matter cognisable by the Supreme Court shall be

heard and determined by five judges of the Supreme Court, including judges who are by virtue of subsection (3) or (4) of

s.1 of the Principal Act Additional Judges of the Supreme Court.

(4) The Chief Justice or, in his absence, the senior ordinary judge of the Supreme Court for the time being available may

determine that an appeal to or other matter cognisable by the Supreme Court, not being a matter of so cognisable under

Article 12 or Article 26 of the Constitution or a question of the validity of any law having a regard to the provisions of the

Constitution, is to be heard and determined by three judges and where such a determination is made, the appeal or matter to

which the determination relates shall be heard and determined by three judges of the Supreme Court, including judges who

are by virtue of subsection (3) or (4) of section 1 of the principal Act additional Judges of the Supreme Court.

These provisions, plainly, set out to regulate the number of judges who shall sit for the determination of any particular

appeal and expressly envisage that, (except in the three cases mentioned) a particular appeal or matter may be heard and

determined by three judges only.

The appellant attacks this statutory provision on the basis that a determination of the Chief Justice or the senior ordinary

judge cannot oust the jurisdiction conferred “on the (Full) Supreme Court” by Article 34.4.3 of the Constitution nor can an

Act of the Oireachtas do so under the conditions specified in Article 34.4.4 when the case involves questions as to the

validity of any law having regard to the provisions of the Constitution.

The appellant also submits that there is no provision in the Constitution which authorises a delegation of power to determine

the jurisdiction of a division of five or three judges of the Supreme Court to the Chief Justice or the senior ordinary judge.

These matters which it is within the power of the law-making authority to “regulate”. The appellant’s argument in the view

of the Court becomes circular: he says that only the Oireachtas can regulate the composition of the Supreme Court for any

particular case and he then claims that the regulation actually made by the Oireachtas, quoted above, is invalid because the

Oireachtas has no power to provide that this power be exercised by anyone else.

In the view of the Court this ground of appeal, a composite of three grounds of the original notice of appeal, must likewise

fail because the practice of having the Supreme Court sit in divisions is plainly envisaged by statute and no adequate case

whatever has been made for the propositions that the statutes are unconstitutional. It must also be stressed that there is

simply no such body in law such as Mr. Riordan describes as “the (Full) Supreme Court”. The constitutional entity is the

Supreme Court, the Court of Final Appeal in our jurisdiction. This Court is required by and described in the Constitution

and regulated, as to the matters mentioned in the Constitution, by statute. The Constitution provides that certain matters

including matters of procedure, are to be regulated by law. It would certainly have been possible for the Constitution or the

law to provide that the Supreme Court should sit always en banc but it did not do so. It is a matter of general knowledge, at

least amongst lawyers, that certain Courts of Final Appeal such as the United States Supreme Court do sit en banc, and that

others, such as the Appellate Committee of the House of Lords in the United Kingdom do not, but sit in divisions. No doubt

there is something to be said for each arrangement. But there is in this jurisdiction a statutory provision for the Court to sit in

divisions and nothing in the Constitution which precludes the making of such provision. Nor is there anything which

precludes the Oireachtas from deciding that (apart from the two specific cases mentioned) the Court may on any particular

occasion consist of three or five judges at the discretion of the Chief Justice or the Senior Ordinary judge available. It is the

will of the Oireachtas that matters should be so arranged. They are so arranged by Act of the Oireachtas. The Court cannot

see that this in any way cuts down or restricts the power of the Oireachtas: on the contrary it expresses its will. The power

of the Oireachtas would be cut down if it were required itself to decide in every case how many judges were to sit and were

precluded from allowing this function to be performed by a judicial office holder familiar with the individual cases. The

Constitution itself, in Article 36, quoted above, specifically provides for the regulation of certain matters concerning the

Courts to take place by law. Mr. Riordan is entitled to dislike the provisions of these laws and to consider that some other

provision would be better, but he has failed to point to any constitutional provision which could be considered as preventing

the Oireachtas regulating as it did.

The foregoing portions of this judgment addresses grounds (1), (3), (4) and (5) of the relief sought in the Notice of Appeal.

It is now proposed to discuss the appellant’s challenges to the constitutionality of Sections 1(3), 1(4), 2(3), 2(4) and 2(5) of

the Courts (Establishment and Constitution Acts at 1961). These matters are raised at paragraphs 6, 7, 8, 9 and 10 of the

Notice of Appeal. This will, accordingly, be the third substantive portion of the judgment.

(3) Ex officio and additional judges.

It will be seen from the Notice of Appeal that s.1(3) of the Act of 1961 which is impugned provides that:

“The President of the High Court shall be ex officio an additional judge of the Supreme Court.”

The following subsection provides:

“(4) “Where, owing to an illness of a judge of the Supreme Court, or for any other reason, a sufficient number of judges of

the Supreme Court is not available for the transaction of the business of that court, the Chief Justice may request any

ordinary judge or judges of the High Court to sit on the hearing of any appeal or other matter cognisable by the Supreme

Court and any judge so requested shall sit on the hearing of such appeal or other matter and be an additional judge of the

Supreme Court for such appeal or other matter”.

Section 2 of the same Act provides:

“(3) The Chief Justice shall be ex officio an additional judge of the High Court.

(4) The President of the Circuit Court shall be ex officio an additional judge of the High Court.

(5)(a) Where, owing to the illness of a judge in the High Court or for any other reason a sufficient number of judges of the

High Court is not available for the transactions and business of that Court, or on account of the volume to be transacted in

the High Court or for any other reason arising from the state of business in that Court, it is expedient to increase temporarily

the number of judges available for the purposes of the High Court, the Chief Justice, at the request of the President of the

High Court, may request any ordinary judge of the Supreme Court to sit in the High Court as an additional judge thereof,

and every ordinary judge in the Supreme Court so requested shall sit in the High Court.

(b) Wherever an ordinary judge in the Supreme Court sits in the High Court in pursuance of this subsection he shall be an

additional judge in the High Court for all the purposes of that Court.”

In summary, the appellant challenges, as unconstitutional, the provisions whereby the President of the Circuit Court is ex

officio an additional judge of the High Court; the President of the High Court is ex officio an additional judge of the

Supreme Court and the Chief Justice is ex officio an additional judge of the High Court. He also challenges the provisions

whereby a judge of the High Court may be requested by the Chief Justice to sit on the hearing of any appeal or other matter

cognisable by the Supreme Court and shall do so if requested and be an additional judge of the Supreme Court for the

matter to which the requests relates, and the provision whereby an ordinary judge of the Supreme Court may, in the

circumstances set out, be requested to sit as an additional judge of the High Court and that, if he does so, he shall be an

additional judge of the High Court for all the purposes of that Court.

The appellant’s case in this regard appears to be as follows:

(1) By reason of Article 34.5 of the Constitution a person appointed a judge of the Supreme Court or the High Court (or

indeed of any other court) must make and subscribe a declaration in a form laid down by the Constitution. This declaration

says in terms that such person will discharge the office of a judge of the High Court, or the Supreme Court, as the case may

be, to the best of his knowledge and ability, duly and faithfully, without fear or favour, affection or ill will, and that he (or

she) will uphold the Constitution and the laws.

(2) All judges, pursuant to Article 35.1 of the Constitution are to be appointed by the President.

(3) The appellant considers that the appointment of a judge by the President to a particular court, and the making by a

person so appointed of a declaration saying that he or she will duly and faithfully and to the best of his knowledge and ability

discharge the duties of a judge of that particular court, precludes him or her from sitting in any other court in a temporary

capacity as a judge of that Court. As the learned High Court judge pointed out the issue in principle is the same whether the

judge moves up a jurisdiction (from the High Court to the Supreme Court) or down a jurisdiction (from the Supreme Court

to the High Court).Mr. Riordan alleges that, if a judge sits in a court other than that to which he or she was appointed he or

she does so without making the declaration required by the Constitution.

It should be noted that the declaration prescribed by Article 34.5.1 of the Constitution is identical for all judges save that the

name of the Court to which each individual judge is appointed is part of the declaration which he or she makes. But the

commitment made by the person making the declaration, to execute his or her office duly and faithfully, to the best of his or

her knowledge and “without fear or favour affection or ill will towards any man”, and to “uphold the Constitution and the

laws” is identical for all judges. The declaration is relevant to any judicial function exercised by the judge in whatever

capacity assigned to him or her by law.

Where a judge of the High Court sits as an additional judge of the Supreme Court, or a judge of the Supreme Court as an

additional judge of the High Court, he or she does not therefore cease to be a judge of the Court to which he or she was

appointed. On the contrary, the liability to be asked to sit as a judge of the other court on a temporary basis is an incident of

membership of the Court to which he or she was first appointed. It will be seen from the statutes that the circumstances in

which such a request may be made relate to a deficiency of the number of judges actually available to attend to the business

of the Courts or reasons to do with the volume of such business or arising from the state of business in the Court. Where

these matters give rise to a temporary difficulty, a temporary redeployment of the available judicial manpower is permitted.

It is quite wrong to suggest that a person so requested to sit temporarily in another court is, while doing so, immune or

exempt from the obligations to act duly and faithfully, to the best of his or her knowledge and ability, without fear or favour

affection or ill will, or to uphold the constitution of the laws.

In considering the applicant’s submissions on this point, it is relevant to consider the state of the law at the time of the

Constitution’s adoption. The nature of this relevance was outlined in: Re Article 26 of the Constitution and the Offences

against the State (Amendment Bill) 470. There, this Court was asked, by counsel assigned to challenge the Bill which had

been referred pursuant to Article 26, to find its provisions for internment unconstitutional. In the course of its judgment the

Court said:

“Before dealing with [the relevant articles] we desire to point out that several Acts authorising the

detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment

of the Constitution which we are now considering. The existence and effect of these Acts must have

been within the knowledge of the framers of the Constitution and, nevertheless, there is no express

prohibition in the Constitution against such legislation. This is a matter to which we are bound to

attach considerable weight in view of the fact that many articles of the Constitution prohibit the

Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.”

In this case it seems relevant to note that at the time the Constitution was drafted and put before the people in 1937, there

were several statutory measures in being which permitted or required a judge to sit as a member of a court other than that to

which he was appointed, or which made a judge an ex officio member of a court other than that to which he was appointed.

The most relevant of these are sections 6,7 and 8 of the Courts of Justice Act, 1924. The first two of these sections provide

that the President of the High Court would be ex officio an additional judge of the Supreme Court and the Chief Justice

should be ex officio an additional judge of the High Court. Section 7 permits a High Court judge, on request, to sit on an

appeal in the Supreme Court in the circumstances set out in the section and s.8 deals with the composition of the Court of

Criminal Appeal. Moreover, and closer in time to the enactment of the Constitution, s.35(2) of the Courts of Justice Act

1936 provided:

“Every ordinary judge of the Supreme Court shall travel and sit as a judge of the High Court on

Circuit whenever requested by the Chief Justice so to do, and every such judge when so travelling and

sitting shall be an additional judge of the High Court.”

It is to be presumed that the framers of the Constitution were, of course, well aware of these provisions, one of them very

recent, when framing the Constitution and it is clearly of significance that they did not seek in the Constitution to prohibit the

practices mandated by those statutes. It is equally clear that they would have been aware, for instance, that in 1937 and the

immediately succeeding years judges of the Supreme Court would act as additional judges of the High Court in the

circumstances set out in the statute just quoted and that they did not consider that the terms of Article 34 or any other part

of the Constitution prohibited that from occurring.

Apart from the illness of a judge, which must always be provided for, there may be other circumstances such as a previous

involvement in a case or with the litigant which makes it impossible or inappropriate for a judge of the Supreme Court to sit

in a particular case. This might give rise to a difficulty in hearing the case at all if it were not possible to replace such judge

with an additional judge of the Court, selected from amongst the ordinary judges of the High Court.

As with the previous points raised on this appeal, it is necessary to enquire what is the precise respect in which these

provisions are said to be contrary to the Constitution. The learned High Court judge considered, and the Court agrees with

him, that the real issue raised was that an additional judge of either the High Court or the Supreme Court was sitting in a

court to which he had not been appointed by the President thereby rendering his sitting in that other court unconstitutional.

The appellant says that:

“There is no power in the Constitution providing for the delegation of the power to appoint judges to

the Court established in pursuance of Article 34 of the Constitution to the Chief Justice or any person

or body”.

It appears to the Court that what the impugned provisions provide for is not the appointment of a person to the Supreme

Court or the High Court as the case may be, but for an additional obligation on a person appointed to the Supreme Court or

the High Court to sit as an additional judge of the other court in the circumstances set out. An analogous arrangement in

relation to judges appointed to Tribunals of Inquiry was the subject of litigation by this same plaintiff in Riordan v. An

Taoiseach (No.1) [1999] 4 IR 321.

The Court entirely agrees with the observation of the learned trial judge that:

“There is no constitutional prohibition on judges of either court sitting as judges of any other court provided that

in doing so they do not breach the provisions of Article 35.3 of the Constitution to the effect that no judge shall

be eligible to hold any other office or position of emolument. The effect of the Article of the Constitution on the

ability of judges to perform functions other than their constitutional role of the judges of the Courts to which they

have been appointed has already been considered by the Supreme Court in other proceedings taken by Mr.

Riordan challenging the entitlement to have a High Court judge to sit as the Chairperson of a commission or as

the sole member of a Tribunal of Inquiry (see Riordan v. An Taoiseach (No.1) [1999] 4 IR 321 at 337.”

The Court would add that it has grave doubts as to the appellant’s locus standi to argue the points just dealt with. He has

specifically asserted that where he was a party to an action determined by a panel of three or five judges of the Supreme

Court such determination was not a determination by “the Supreme Court” or “the (Full) Supreme Court”.

But the Court has no reason to believe that he has been a litigant before any judge sitting as an ex officio or additional judge

of either the High Court or the Supreme Court. It notes that he contends in the Statement of Claim that he has a direct

interest in ensuring that the Courts are properly constituted in accordance with the Constitution and the laws as enacted by

the Oireachtas are in accordance with the Constitution. But the Court is not affirmatively satisfied that he had no interest

and is therefore in the position of the plaintiff in Cahill v. Sutton [1980] IR 269, that is to say that he is attempting to

“champion the putative constitutional rights of a hypothetical third party”.

(4) The Court of Criminal Appeal.

The remaining point urged by the appellant is a challenge to the constitutionality of s.3(2) of the Courts (Establishment and

Constitution) Act, 1961. This relates to the Court of Criminal Appeal and provides as follows:

“3(1) On the commencement of this Act, a Court of Criminal Appeal, which shall be called An Chúirt

Achomhairc Choiriúil (The Court of Criminal Appeal) shall stand established.

(2) For the purpose of hearing and determining any particular appeal cognisable by the Court of Criminal Appeal,

the Court of Criminal Appeal shall be summoned in accordance with directions to be given by the Chief Justice,

and the Court shall be duly constituted if it consists of not less than three judges -

(a) one of whom shall be either

(i) the Chief Justice, or

(ii) an ordinary judge of the Supreme Court nominated by the Chief Justice, and

(b) of whom the other two shall be either -

(i) two ordinary judges of the High Court nominated by the Chief Justice, or

(ii) the President of the High Court, if nominated by the Chief Justice and

willing to act and one ordinary judge of the High Court nominated by the Chief

Justice.

but any other available judge or judges of the Supreme Court or the High Court

may, at the request of the Chief Justice, attend as a member or members of the

Court”.

In relation to this claim, the Court is affirmatively satisfied that the appellant has no locus standi to maintain it. In this regard

it agrees with the finding of the learned trial judge.

The Court of Criminal Appeal is principally concerned with the hearing of appeals, against either conviction or against

sentence, or both, from persons convicted on indictment i.e. after a trial before Judge and Jury in the Circuit Criminal Court,

the Central Criminal Court or after a non-jury trial before the Special Criminal Court. The Court also has a jurisdiction to

hear applications by the Director of Public Prosecutions for review of sentences on the grounds of undue leniency. It also

has certain functions in relation to appeals on the ground of new or newly discovered evidence, and applications to have

certain convictions declared to have been miscarriages of justice, and certain other statutory jurisdiction.

The appellant has never been a party to any litigation before the Court of Criminal Appeal because he has never been

charged with, and therefore never convicted of, an indictable offence. Indeed, lest the contrary impression be given, it

should be stated that, as far as the Court is concerned, he has never been charged with or convicted of any offence.

However it appears that some years ago the appellant attended at the Court of Criminal Appeal and attempted to intervene

in an appeal taken by the accused in a case called DPP v. Gilligan. This was an appeal by one John Gilligan who had been

convicted of serious criminal offences.

The appellant addressed the Court of Criminal Appeal and said that the judges sitting on that occasion were acting “in an

unconstitutional manner” and “in direct violation of their judicial law or declaration of office to uphold the Constitution”. He

claimed that he had locus standi to seek the Court’s assistance to terminate what he described as a “deliberate violation and

subversion of the Constitution by individuals holding judicial office who have acted as judges in his cases”.

It seems that the Court of Criminal Appeal declined to entertain the appellant’s attempted intervention in the Gilligan case.

This was an entirely justifiable stance by that Court since the appellant was not a party to the proceedings involving Mr.

Gilligan. He was not entitled to intervene in the proceedings. His attempted intervention, without any justification, is not

capable in itself of conferring locus standi on him. If it were otherwise, then any person could confer locus standi on

himself by simply going along to a hearing and addressing the Court without invitation or entitlement.

The rules relating to locus standi are of ancient origin and require that a person who wishes to initiate or participate in court

proceedings should himself have a cognisable interest in the subject matter of these proceedings. The leading modern

statement of the rule is that to be found in Cahill v. Sutton [1980] IR 269. There, this Court refused the plaintiff a right to

maintain the proceedings in order to “champion the putative constitutional rights of a hypothetical third party”. A plaintiff

must have a personal standing in the sense of being able to show (in this case) that the impugned statutory provisions

adversely affect or threaten his own personal interest. In the case in which Mr. Riordan attempted to intervene, Mr. Gilligan

and his lawyers had obvious standing and they and the prosecution were the persons entitled to decide what matters or

issues should, and what should not, be raised before the Court.

All citizens have a right of access to the Courts which, in other cases, the Courts have been sedulous in protecting. But this

right of access is for the purpose of resolving 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. In the words of Henchy J. in Cahill v. Sutton:

“It would be contrary to precedent, to constitutional propriety and the common good for the High

Court and this Court to proclaim itself an open house for the reception of such claims”.

The Court agrees with the learned trial judge that:

“In vindicating the constitutional rights of any person it is of importance that the rights of the

community as a whole or identifiable persons or officers or offices in it are not disregarded (e.g. by

being open to harassment oppression or scandalous or vexatious litigation). The common good and the

respect of society as a community for a justice system is not served or ensured by a disproportionate

concern for the rights of the individual at the almost inevitable expense of a disregard for the rights of

society by an over indulgence of every or any complaint of an individual. The Courts in respecting the

rights of all of those who seek access to the Courts must also have some self respect. Otherwise there

is the real possibility, nay probability, that the justice system will be abused and/or manipulated for

unworthy purposes”.

It must also be borne in mind that all litigation, even groundless litigation, causes expense to the individuals or entities

impleaded in it and that this expense will often fall on the taxpayer.

For the reasons set out above the Court would dismiss the appeal. It would also uphold the order made by the learned trial

judge (at pages 32 and 33 of his judgment) to the effect that any further applications by the appellant for leave to commence

or continue proceedings should be made by application in writing on notice to the intended defendants or respondents

supported by an affidavit referring in full and complete detail to all earlier applications, motions, actions or proceedings of

any nature whatever in which the matters intended to be raised in the proposed proceedings were previously raised by him

in such earlier matters or proceedings.

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