The Origins of the Court

This chapter provides an outline of how the Court of Appeal was first established and charts several significant turning points in its subsequent development. Those turning points include the creation and subsequent abolition of a separate Court of Criminal Appeal in 1930 and 1978, a fundamental restructuring of the Court’s governing framework in 1978, and a suite of gradual modifications to the process for appointing Court of Appeal judges.

2.1 Introduction

This chapter charts the genesis of the Court of Appeal in Northern Ireland before outlining how the Court has evolved in several fundamental respects over time. In the first section of the chapter, we assess the starting position of the Court by examining the Supreme Court of Judicature Act (Ireland) 1877 and the Government of Ireland Act 1920. We explain, in particular, how the 1920 Act originally established three courts: the Supreme Court of Judicature of Southern Ireland, the Supreme Court of Judicature of Northern Ireland, and a court having appellate jurisdiction throughout the whole of Ireland called the High Court of Appeal. The remainder of the first sub-section focuses on the only surviving Court established under the 1920 Act, namely, the Court of Appeal in Northern Ireland. We explore how that Court was established in practical terms under the leadership of its first President, Sir Denis Henry, and the roles played by its first Lords Justices, Sir William Moore and Sir James Andrews.

In the second section of the chapter, we turn our attention to some of the most significant changes to the governance of the Court of Appeal since its establishment. We explain that two key turning points in the legislative framework governing the structure and jurisdiction of the Court occurred in 1930 and 1978. In 1930, an Act was passed by the UK Parliament which created a new Court of Criminal Appeal that was separate from the Supreme Court of Judicature of Northern Ireland but staffed by all the same judges. In 1978, the Court of Criminal Appeal was abolished in tandem with the introduction of several fundamental changes to the overall court structure in Northern Ireland. We analyse the rationale for each of these significant developments. Finally, in the third section of the chapter, we recount the changing nature of the system that has been employed to determine the membership of the Court. We chronicle archival evidence which shows that a politicised judicial appointments system gradually gave way to a significantly de-politicised system.

2.2 The starting position

Long before the partition of Ireland, the Supreme Court of Judicature Act (Ireland) 1877 had created a consolidated supreme court structure for the island which mimicked that which had been introduced to England and Wales by the Supreme Court of Judicature Acts of 1873 and 1875.¹ There was a High Court of Justice in Ireland with a King’s Bench Division and a Chancery Division,² with appeals lying to a Court of Appeal in Ireland,³ and from there to the Appellate Committee of the House of Lords at Westminster.⁴ The High Court and the Court of Appeal together constituted the Supreme Court of Judicature in Ireland.⁵ Interestingly, the immediately inoperative Government of Ireland Act 1914, which would have enabled home rule for Ireland as a whole, did not envisage any changes to the court structure introduced in 1877.⁶

In contrast, when the partition of Ireland was brought into effect at Westminster by the Government of Ireland Act 1920, and Northern Ireland itself was thus established as a legal entity separate from Southern Ireland for the first time,⁷ a significantly different set of court arrangements was provided for. Under section 38 of the 1920 Act, the Supreme Court of Judicature in Ireland ceased to exist and was replaced by three new bodies, namely:

a court having jurisdiction in Southern Ireland, to be called the Supreme Court of Judicature of Southern Ireland, a court having jurisdiction in Northern Ireland, to be called the Supreme Court of Judicature of Northern Ireland, and a court having appellate jurisdiction throughout the whole of Ireland, to be called the High Court of Appeal.

The Southern Ireland and Northern Ireland Supreme Courts of Judicature were similar in their structure, if not their overall size, given that the Southern Court was to have six puisne judges (or, until the existing Master of the Rolls retired, five puisne judges plus that office-holder), whereas the Northern Ireland Court would have only two puisne judges.⁸ Structurally, however, each Supreme Court of Judicature consisted of a High Court and a Court of Appeal, with the Court of Appeal in each jurisdiction being presided over by a separate Lord Chief Justice and ‘two ordinary judges’ known as Lords Justices of Appeal.⁹

The Lords Chief Justices of Southern Ireland and Northern Ireland were members of the High Court of Appeal for Ireland ex officio, together with the Lord Chancellor of Ireland, who presided over the High Court of Appeal.¹⁰ That bench could receive cases from both the Court of Appeal in Southern Ireland and the Court of Appeal in Northern Ireland,¹¹ and in this way it briefly ‘interposed’ between those Courts of Appeal and the Appellate Committee of the House of Lords¹² (which retained a closely prescribed jurisdiction to hear certain appeals from the High Court of Appeal).¹³ However, the High Court of Appeal for Ireland was short-lived. Soon after the Southern Court of Appeal became inoperative following the formation of the Irish Free State in December 1922, the High Court of Appeal for Ireland was abolished and its jurisdiction as regards Northern Ireland was transferred to the Court of Appeal in Northern Ireland.¹⁴ During its brief existence, the High Court of Appeal decided ten reported cases, including one in which the bench held that it was not bound by decisions of the former Court of Appeal which had been established under the 1877 Act.¹⁵ Thus, while it lasted, the High Court of Appeal presided over by the Lord Chancellor of Ireland was plainly keen to emphasise that it was ‘separate and distinct’ from its predecessors, though it did resolve to ‘consider with the utmost reverence and respect the decisions of [earlier] appellate courts’.¹⁶

Before returning our focus to the Court of Appeal in Northern Ireland, it may be worth noting that, although it was short-lived, the business of the High Court of Appeal for Ireland certainly impacted on the workload of the newly created Lord Chief Justice and Lords Justices of Appeal in Northern Ireland when they were nominated to sit on it. A memorandum on the first year of the Supreme Court of Judicature of Northern Ireland reveals, for instance, that the Lord Chief Justice attended the High Court of Appeal in Dublin ‘on four occasions during the year, and Lord Justice Andrews on six’.¹⁷ In addition, it records that the High Court of Appeal ‘sat once in Belfast on July 27th [1922], when the Lord Chancellor, the Lord Chief Justice of Ireland, and Lord Justice Moore sat to hear an appeal from the Chief Justice [of Northern Ireland] and Lord Justice Andrews’.¹⁸ Had it existed for longer, it would have been interesting to observe the degree of judicial comity that might have evolved under this unusual appellate court structure.

Although it is tempting to review the formative years of the Supreme Court of Judicature of Northern Ireland as a whole, we must refrain from analysing the establishment of the High Court (which consisted originally of the Lord Chief Justice and two puisne judges)¹⁹ and focus only on the Court of Appeal (which, as mentioned earlier, consisted of the Lord Chief Justice and two Lords Justices of Appeal).²⁰ We will confine ourselves to the consideration of two interesting points about the practical formation of that Court. First, we will outline some details about the judges that were appointed to it. Second, we will offer a brief evaluation of the workload they faced.

2.2.1 The inaugural judges

The first Lord Chief Justice of Northern Ireland was Sir Denis Henry,²¹ whose background as a Catholic unionist has been studied with renewed interest over recent years.²² Indeed, Sir Denis’s appointment as Lord Chief Justice has been described by one of his successors as ‘the obvious choice’ at least partly because the objective of Sir James Craig, who was one of the two people responsible for the appointment, ‘was to ensure that the position … was filled by someone who was committed to the unionist cause’.²³ Sir Denis had been a successful unionist MP (elected in 1916 and again in 1918) before becoming the Attorney General for Ireland between 1919 and 1921. Having chosen to assume the office of Lord Chief Justice ‘in preference to a Lordship of Appeal which he was offered at just about the same time’,²⁴ Sir Denis was sworn into office at Portrush Town Hall (seemingly because of ‘the Lord Chancellor’s holiday arrangements’) on 15 August 1921,²⁵ which satisfied the statutory requirement that he should be in post not less than one month prior to ‘the appointed day’ on which the Supreme Court of Judicature would formally come into being, namely, 1 October 1921.²⁶ Through no shortage of effort on Sir Denis’s part,²⁷ the Supreme Court of Judicature opened its doors shortly thereafter in the County Courthouse on the Crumlin Road of Belfast, where it continued to sit until the purpose-built Royal Courts of Justice that are still in use today were opened on Chichester Street in 1933.²⁸

The senior Lord Justice of Appeal to join Sir Denis Henry as a judge designated to form the first Court of Appeal in Northern Ireland was Sir William Moore,²⁹ who, prior to this appointment, was a puisne judge of the King’s Bench Division of the High Court of Ireland and a former Unionist MP. Moore ‘accepted appointment as the senior lord justice, being the only member of the southern judiciary who signified a desire to serve as a judge in Northern Ireland’,³⁰ and indeed the only judge appointed to the new Supreme Court of Judicature for Northern Ireland who had any prior judicial experience.³¹ It might be reasonably inferred from correspondence by the last Lord Chancellor of Ireland, Sir John Ross,³² that Sir William was motivated to jump ships because he was not highly regarded by at least some of his judicial peers in Southern Ireland.³³ In addition, Sir Declan Morgan has observed that by the time Sir William was appointed (on 1 September 1921),³⁴ ‘the risk to the establishment of Northern Ireland as an entity had disappeared and the worst of the sectarian violence had abated’.³⁵ That said, it has also been recorded by Sir Declan that the evidence in connection with Sir William’s judicial contributions to the Court of Appeal in Northern Ireland shows he ‘conducted the business of the court in an orderly and professional manner’.³⁶ Sir Declan’s lukewarm reading of the man confirms an earlier assessment by Lord Carswell,³⁷ though the latter account is perhaps a little more unflattering than the former.

The second Lord Justice appointed to complete the original Court of Appeal bench, long before a third Lord Justice was installed in 1975,³⁸ was Sir James Andrews.³⁹ Sir James, who hailed from a phenomenally successful family,⁴⁰ was appointed to this high office at the early age of 44 and stayed on the bench for approximately 30 years thereafter. For part of this time – namely, from 1937 onwards – Sir James was the Lord Chief Justice of Northern Ireland (having succeeded Sir William Moore, who had himself succeeded Sir Denis Henry from 1925 onwards). We note that following a review of Sir James’s judgments from 1921 to 1925, Lord Carswell was unable to discern any pattern in his judicial opinions that might be said to ‘demonstrate a particular judicial philosophy on his part’, which is to say His Lordship detected neither any ‘obvious liberalising or modernising’ nor any ‘undue inclination to conservative acceptance of established rules of law’.⁴¹ Sir Edward Jones, on the other hand, was willing to qualify his otherwise gushing account of Sir James’s judicial character by suggesting he may have been ‘a little Crown minded’, though Sir Edward was quick to add that if Sir James ‘had any such faults they were more than counterbalanced by his politeness, patience and thoroughness’.⁴²

2.2.2 The initial workload

The volume of work carried out by the newly established Court of Appeal in Northern Ireland was remarkably slender, in that it heard just 14 cases between 1 October 1921 and 31 July 1922.⁴³ While a slow start could be expected as a result of the various practical challenges associated with its establishment, other evidence suggests that the Court was widely regarded as a broadly undemanding place to work. The sharpest qualitative account of its workload also comes from Lord Carswell, to whom we owe this free-spoken description:

According to all accounts the plum jobs were in the court of appeal, which had by today’s standards a very light list. It was customary in the early days for the two lords justices to sit on their own. It was not until the tenure of office of Sir James Andrews that the lord chief justice would preside regularly in the court of appeal. The junior lord justice was in charge of the civil bill appeals, which occupied him to some extent, but the reports indicate that the senior lord justice would generally prepare the leading judgment in appeals before the court of appeal, so the overall burden of work, if such it can be called, may have evened out.⁴⁴

A similar impression emerges from this contemporary account of the Court’s workload in 1925:

The Court of Appeal, it is true, does not get enough work to do, but as the expense of an Appeal to the House of Lords is, in most cases, prohibitive to an ordinary litigant, it is essential that the Court of Appeal should be maintained here as in 99% of the cases it is in fact the House of Lords for Northern Ireland.⁴⁵

It is important to stress, however, that the inaugural judges were engaged to carry out judicial business beyond the jurisdiction of the Court of Appeal. For instance, as mentioned earlier, Henry LCJ and Moore and Andrews LJJ were required to sit on the High Court of Appeal for Ireland on several occasions during their first year in office, in addition to their extra-curial responsibilities relating to establishing the new court system. Moreover, archival records show that Moore and Andrews LJJ were relied upon by Henry LCJ ‘to relieve the Puisne Judges’ of historically under-reported business, including the cases arising from a newly established City Commission (which sat four times per year to obviate for Belfast prisoners ‘the delay which used unavoidably to happen before trial at the next Assizes’).⁴⁶ In addition, early law reports reveal that while Henry LCJ did not regularly preside over appeals, true to Lord Carswell’s words, he did preside regularly over proceedings in the High Court.⁴⁷ As such, while subsequent appellate court office-holders can still look upon the workload of the first Court of Appeal bench with justifiable envy,⁴⁸ we would emphasise that the negligibility of its caseload should not be taken to mean that its judges were exorbitantly indolent.

2.3 Significant changes to the governance of the Court

We will now examine some of the most significant developments that have taken place in connection with the governance of the Court of Appeal since its inauguration under the Government of Ireland Act 1920. There have been at least two key turning points in the legislative framework governing the structure and jurisdiction of the Court, which came about in 1930 and 1978. In the following two sub-sections, we shall consider each of those turning points together with some practical changes to the operation of the Court over the course of the years in question.

2.3.1 The (temporary) Court of Criminal Appeal

In 1930, Westminster passed the Criminal Appeal (NI) Act 1930, which had been introduced to Parliament by the UK Government following a request from the Northern Ireland Government that was accompanied with assurances that ‘all parties in the Parliament of Northern Ireland desired the Bill which had been drafted in consultation with the legal authorities and with the Chief Justice’.⁴⁹ Notwithstanding this clear desire for change on the part of the devolved authorities, the Act had to be passed at Westminster because all matters relating to the Supreme Court of Judicature of Northern Ireland were ‘reserved’ at the time.⁵⁰ Political demand for the Act was essentially predicated on the success of similar legislation passed for England and Wales in 1907,⁵¹ and likewise for Scotland in 1926,⁵² which created a new criminal appeals jurisdiction in each legal system. The 1930 Act did this for Northern Ireland by replicating the 1907 framework to a large extent; namely, by establishing a Court of Criminal Appeal which was separate from the Supreme Court of Judicature but staffed by all the same judges.⁵³

Prior to the 1930 Act, anyone ‘convicted on indictment in Northern Ireland who wished to appeal against conviction continued to invoke the powers of the Court of [sic] Crown Cases Reserved’ as the ‘jurisdiction of that Court had been preserved by the Judicature Act of 1877 and was ultimately vested in the Northern Ireland Court of Appeals [sic]’.⁵⁴ Northern Ireland’s newly established Court of Criminal Appeal, on the other hand, could hear appeals from persons convicted on indictment against their conviction, sentence, or both.⁵⁵ Such appeals could be taken either on a point of law or, if leave was granted, on a question of fact or any other ground that appeared sufficient to the Court.⁵⁶ The 1930 Act in Northern Ireland differed from the 1907 Act in England and Wales in only one significant respect; namely, that it adopted some different language used in the 1926 Act for Scotland, which enabled the Northern Ireland Court of Criminal Appeal to quash or substitute sentences passed ‘in any appeal, whether against conviction or sentence’,⁵⁷ whereas in England and Wales if a person did not appeal against their sentence there was no power to alter it.

For our purposes, the most notable effect of the 1930 legislation was that it substantially expanded the powers and responsibilities of the Lord Chief Justice and the Lords Justices of Appeal in Northern Ireland, and indeed those of the puisne judges before long. This latter point is worth elaborating on here by reference to the fact that it became more and more commonplace for Lords Justices of Appeal and puisne judges of the High Court to be regarded as functionally ‘interchangeable’ in practice, such that by 1957 ‘they all took their turn on circuit and on criminal trials at Belfast city commission, the puisne judges regularly sat in the court of appeal and the lords justices would sit when required on civil trials and county court appeals’.⁵⁸

An editorial essay published in an issue of the Northern Ireland Legal Quarterly for 1946 reveals, moreover, that even by then the ‘small number of Judges in the Supreme Court of Northern Ireland’ had made it ‘inevitable that each Judge should be called upon to be an exponent of every branch of the law’.⁵⁹

It should be emphasised that while the Court of Criminal Appeal dealt with appeals against convictions and sentences by persons convicted on indictment, the ‘general’ Court of Appeal in Northern Ireland retained jurisdiction over criminal appeals from county courts and magistrates’ courts by way of case stated, as well as criminal appeals from lower courts (including the High Court) in proceedings for criminal contempt.⁶⁰ It was against this complicated backdrop that the Court of Criminal Appeal was abolished in 1978⁶¹ in order to ‘obviate the anomaly of having one type of criminal appeal heard by a court whose business is mainly civil and others by a court whose jurisdiction is exclusively criminal’.⁶²

2.3.2 The (reconstituted) Supreme Court of Judicature

The Judicature (NI) Act 1978, which abolished the Court of Criminal Appeal, also fundamentally consolidated and restructured the jurisdiction of the ‘general’ Court of Appeal alongside many other reforms to the Northern Ireland court system. Papers prepared by the Northern Ireland Office at the time summarised the four major purposes of the Bill which became the 1978 Act in the following terms:

i)The reconstitution of the Supreme Court of Judicature of Northern Ireland; the Court of Criminal Appeal, which is not part of the Supreme Court, will be abolished, and its jurisdiction absorbed by the Court of Appeal, which is and will continue to be part of the Supreme Court.
ii)[T]he establishment of a Crown Court, similar to that established in England and Wales under the Courts Act 1971, for the trial of all indictable offences throughout Northern Ireland. The existing courts of assize will be abolished, and the Crown Court will become part of the Supreme Court.
iii)[T]he establishment of a unified Court Service, comprising staff of the three court services which exist separately at present, the Petty Sessions Service, the County Court Service and the staff of the Supreme Court, together with personnel from the Courts Administration Branch of the Northern Ireland Office.
iv)[T]he territorial reorganisation of courts in Northern Ireland; the county will no longer be the territorial basis for the jurisdiction of the inferior courts; instead, Petty Sessions districts will become coextensive with the new local government districts, and these districts will then be grouped together to form County Court circuits.⁶³

In realising these purposes, the 1978 Act also gave effect to a carefully developed suite of recommendations concerning the organisation and jurisdiction of Northern Ireland’s courts that had emerged from three judge-led reports.⁶⁴ As a result, the 1978 Act marks an enduring turning point in the development of the Court of Appeal.

Moreover, from the 1980s onwards, as part of the Supreme Court of Judicature the Court of Appeal ceased to apply rules descended from ‘the old Irish courts’ and instead adopted ‘rules closely in line with the English rules of the supreme court’.⁶⁵ This had the benefit of enabling Northern Ireland practitioners to ‘make use of the English White Book in arguing and deciding matters of procedure’,⁶⁶ which obviously had the added benefit of making it generally less laborious for Northern Ireland judges to determine such points anew. However, the benefits of this procedural alignment did not last long, because the system in England and Wales underwent ‘a fundamental change-over’ to the Civil Procedure Rules in 1998 which was not (and still has not been) replicated in Northern Ireland.⁶⁷ While a useful text on the Northern Ireland specific practice and procedure of the Court was published by Barry Valentine in 1997 and supplemented with an addendum in 2000,⁶⁸ the most comprehensive annotations on the 1978 Act as later amended, and the Rules of the Court of Judicature made thereunder,⁶⁹ are now published by the same author in an online resource which is available only to Lexis+ subscribers.⁷⁰ It might be queried whether there is a good case to be made for revisiting this framework and the resources for navigating it, now that it is 46 years since the 1978 Act was passed. The judges we have interviewed hold different views about that proposal.⁷¹

We will not attempt to comment on all the provisions of the 1978 Act and the Rules of Court made thereunder, given that Valentine’s commentaries are best consulted for those details. In general terms it may be helpful to conclude our discussion of the Act’s effects with the following summary. The Court of Appeal is now a superior court of record which has inherited all the jurisdiction that was previously capable of being exercised by its ‘general’ predecessor and by the Court of Criminal Appeal which existed alongside that predecessor, as well as any other jurisdiction that is conferred upon it by the 1978 Act or any other statutory provisions.⁷² It has no inherent or original jurisdiction, other than on certain ancillary and procedural matters,⁷³ but its statutory jurisdiction is vast. We cite the specific statutory basis for the most common civil and criminal appeal routes in Chapters 4 and 5 of this book, in the course of discussing cases that have been taken via each of those routes over the past 25 years.⁷⁴ At this stage we need only emphasise that while the Court generally hears no original applications, it is now burdened with a great deal of appellate work arising from its expansive statutory jurisdiction. Moreover, since 2005, the Lord/Lady Chief Justice has assumed a particularised responsibility for various statutory powers and duties flowing from his/her role as President of the Courts of Northern Ireland and Head of the Judiciary of Northern Ireland.⁷⁵ Clearly, there are no longer any ‘plum jobs’ on the Court of Appeal.

2.4 Significant changes to the appointments process of the Court

The process for appointing judges to the Court of Appeal in Northern Ireland has changed in a number of ways since it was first established, though there has been relatively little written about those changes from an academic point of view.⁷⁶ In the next two sub-sections of this chapter, we will provide a synopsis of the most significant changes to the process that we have corroborated by studying original archival papers in the Public Records Office of Northern Ireland and in the National Archives.⁷⁷

2.4.1 A politicised appointments system

The first set of judicial appointments to the Court of Appeal, discussed earlier, was made on an openly political basis. Formally, the relevant process initially involved the Prime Minister of Northern Ireland recommending individuals for appointment to the UK Home Secretary, who would then decide on a final recommendation to the monarch.⁷⁸ However this practice was ‘challenged’ in 1945 when the Home Secretary decided to recommend that Samuel Porter, who was ‘the father of the Bar’ but did not belong to a political party, should be appointed to the Court of Appeal to replace the recently deceased Murphy LJ.⁷⁹ The Home Secretary recommended Porter’s appointment despite the Prime Minister of Northern Ireland having recommended that William Lowry, the then Attorney General for Northern Ireland, should be appointed.⁸⁰ All of Lowry’s Ulster Unionist predecessors in that role had been given judicial appointments,⁸¹ but records show that the Home Secretary defended a departure from the conventional practice ‘on two counts’:

(a)that the responsibility for advising the Crown rested with the Home Secretary alone and in the exercise of that responsibility he was not inhibited from seeking advice wherever he wished [and]
(b)that in the past these appointments had invariably been made from one political party and the time had come to break this convention and to bring the whole field of the Bar under review.

Despite initial resistance, the Prime Minister of Northern Ireland ultimately conceded that ‘future holders of the office of Attorney General should have no claim, as of right, to succession to judicial office’ and that the Home Secretary should ‘aim to get the best and most suitable man, irrespective of his political views or of his occupancy of any particular political office, regard being had to the qualifications and merits of all the leading men at the Bar’.⁸² Likewise, and notwithstanding spirited efforts to stress that ‘constitutional proprieties demanded acceptance of the advice of the Prime Minister of the day’, the Home Secretary prevailed in that it was eventually recognised ‘there was no hope of re-affirming that principle’.⁸³

The Home Secretary therefore controlled the process for judicial appointments to the Court of Appeal up until 1949, when another significant set of developments occurred. It was first proposed, in the context of a Bill which would become the Ireland Act 1949, that responsibility for the whole Supreme Court of Judicature of Northern Ireland should become a transferred matter.⁸⁴ This proposal was firmly rejected.⁸⁵ The then Lord Chief Justice, Sir James Andrews, wrote to the Prime Minister of Northern Ireland, Sir Basil Brooke, resisting the proposal with these words:

I have had an opportunity of conferring separately (and, of course, in confidence) with all my colleagues on the Supreme Court bench in regard to the suggestion that the Supreme Court Service should cease to be ‘Reserved’, and should be transferred to the Government of Northern Ireland. … I found that there was a complete unanimity of opinion against the change, viewed as it was, entirely from the strictly legal standpoint. This confirms and strengthens my own opinion upon the matter. I think that, without any trace of personal egotism, I can claim that our Legal Service enjoys the confidence of the people of Northern Ireland: and I can see no sufficient reason for making a change which might gravely imperil our future, and for which I have never heard any public demand. The present system ensures independence which is vital.⁸⁶

It was then suggested that ‘the responsibility for making nominations to the Supreme Court Bench should be placed in the hands of the Lord Chancellor’, which was ultimately agreed upon.⁸⁷ The procedure to be followed from late 1949 onwards was set out in a detailed memorandum on the ‘Procedure for the Appointment of Lord [sic] Justices of Appeal in the Supreme Court of Judicature in Northern Ireland, and Judges of the High Court of Justice in Northern Ireland’.⁸⁸ The practical operationalisation of this procedure obviously involved an array of delicate political calculations, though for many years these were not a matter of public record. In 1992 one of us felt bound to write that it was ‘impossible to say that a particular judge has ever been appointed because he was of a particular religion’.⁸⁹ It is clear from our more recent research based on subsequently disclosed papers that religion became a significant consideration for a certain period of time.

The single most illustrative example of religious discrimination in respect of a senior judicial appointment occurred in 1956. In line with the process set out in the 1949 memorandum mentioned earlier, the then Lord Chief Justice, Lord MacDermott, listed a range of candidates whom he considered eligible for consideration by the Lord Chancellor, Lord Kilmuir, in respect of a vacancy created by the death of Porter LJ.⁹⁰ Cyril Nicholson QC was among those suggested by Lord MacDermott to Lord Kilmuir,⁹¹ but ‘secret’ minutes of a meeting between these two reveal that Nicholson was apparently ruled out because ‘it would be too difficult to appoint another Catholic to the Bench at present’.⁹² This view was reinforced by a subsequent letter sent to Lord Kilmuir from the Prime Minister of Northern Ireland, Sir Basil Brooke, in which the latter stated that ‘politically I couldn’t support Cyril Nicholson as in my opinion it would unbalance the Judgeship and I would be open to very severe criticism’.⁹³ Shortly thereafter, in a ‘confidential’ letter from Lord MacDermott to Lord Kilmuir, the following admission was committed to page:

I went to the P.M. at Stormont last week to see if there was any possibility of him having second thoughts about C.A. Nicholson, Q.C. who on his own merits would rank high. Personally, the P.M. would have no objection to Nicholson but he felt that a second Roman Catholic in a Judiciary of five would be politically embarrassing, and on that account he could not acquiesce in his appointment.⁹⁴

Following these exchanges, Nicholson was not appointed.⁹⁵ Curran J was elevated to the Court of Appeal seat made vacant upon the death of Porter LJ and Herbert Andrew McVeigh QC was appointed to the High Court seat vacated by Curran J.

2.4.2 A gradually de-politicised appointments system

The weight laid upon the religious background of individual candidates for senior judicial positions seems to have reduced slowly over time. As such, by 1968 the Prime Minister of Northern Ireland, Terence O’Neill, was keen on avoiding so much as the appearance of religious preferment. In a letter to the UK Lord Chancellor, Lord Gardiner, which was copied to the UK Prime Minister, Harold Wilson, O’Neill set out the position as follows:

Until the recent legislation authorising two additional appointments, our Supreme Court consisted of the Lord Chief Justice and four Judges. Traditionally, one of these five appointments had long been held by a Roman Catholic Judge. With the addition to the court of Mr. Justice McGonigle [sic] (at the same time as Mr. Justice Jones), the number of Roman Catholic Judges became two out of seven. The appointment now of Mr. Gibson in the place of Mr. Justice Sheil would reduce the ratio to one out of seven.

It is distasteful to me to have to mention considerations which, in an ideal world, would be irrelevant. But we have learned from hard experience here that appointments made on merit alone are frequently criticised if they do not result in a balance between the two sections of our community.

Moreover, the position of the Northern Ireland Government in relation to Supreme Court appointments is imperfectly understood, and if Mr. Justice Sheil is now replaced by a Protestant, I have no doubt that it will be insinuated, if not actually alleged, that it is the Northern Ireland Government which has brought its influence to bear to ensure the appointment of a Protestant.

You may well say that it is your duty to ignore this, and to appoint the person you consider best qualified. We have been in the same dilemma many times, and have made the same decision. But I do want to make it absolutely clear – although I hope you would in any case take it for granted – that we would be perfectly happy to see a qualified Roman Catholic barrister appointed to this vacancy.⁹⁶

The Lord Chancellor responded in sympathetic terms:

I made a point of considering with Lord MacDermott the claims of the leading Roman Catholic Silks as well as a Roman Catholic county court Judge, but having done so I was left with no doubt at all that there is at present no other candidate as well qualified as Mr. Gibson. … I am quite sure that in the long run there would be stronger criticism if I failed to recommend the man who is best qualified for appointment.⁹⁷

The UK Prime Minister subsequently confirmed that ‘if the appointment is criticised in the House of Commons I should certainly wish to make it clear that the Government here take full responsibility for the appointment and that it was made entirely on merits without pressure of any kind’.⁹⁸

By 1984 there were still ‘two Roman Catholic judges out of the nine judges of the Supreme Court’ and records show that the religion of possible candidates was not taken into account by the Lord Chancellor ‘unless, though this is not generally known, there were candidates of equal standing and ability and there was a serious imbalance in the Bench in favour of one side’.⁹⁹

Eventually, the Lord/Lady Chief Justice was designated as the Head of the Judiciary of Northern Ireland¹⁰⁰ and a Northern Ireland Judicial Appointments Commission was created.¹⁰¹ These changes were prompted by an extensive review of the criminal justice system that was carried out following the Belfast (Good Friday) Agreement of 1998.¹⁰² That review recognised, inter alia, that ‘the extent to which the composition of the judiciary reflects the society which it serves is a confidence issue and has implications for its legitimacy in the eyes of many in the community’.¹⁰³ The review further recognised that if there is ‘a perception that judges come predominantly from a narrow pool, then there is liable to be concern that the way in which the law as a whole is developed will be unduly influenced by one particular set of values’.¹⁰⁴ These principles clearly informed the modern-day appointments system which resulted from the review.

The modern-day appointments system applicable to Northern Ireland judges at High Court level and below provides that appointments and recommendations for appointment ‘must be made solely on the basis of merit’¹⁰⁵ but still requires the relevant appointments commission to engage in a programme of action which, among other things, is ‘designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland’.¹⁰⁶ These rules may indirectly shape the pool of competitive candidates for the Court of Appeal. However, as regards the directly applicable rules for appointment to the office of Lord/Lady Chief Justice and as regards Lords/Ladies Justices of Appeal, the relevant legislation now in force simply requires the UK Prime Minister to consult both the incumbent Lord/Lady Chief Justice or, if they are unavailable, the senior Lord/Lady Justice of Appeal who is available, and the Northern Ireland Judicial Appointments Commission, before making a recommendation to the King.¹⁰⁷ In practice, the Prime Minister has ‘asked the Chief Justice to establish a selection panel to make a recommendation for appointment’ and it has been stated that all applications are considered strictly on the basis of merit.¹⁰⁸ The non-statutory criteria that applicants are expected to satisfy focus on ‘legal skills’; ‘personal qualities’; ‘understanding and fairness’; ‘communication skills’; and ‘leadership and management skills’.¹⁰⁹ The only statutory criterion for Court of Appeal appointments requires that applicants must be either a solicitor or a barrister of ten years’ standing.¹¹⁰ To this extent, there is an overtly apolitical emphasis to the modern-day appointments system.

2.5 Conclusion

In this chapter, we have sought to elucidate the steps by which the Court of Appeal first came into existence and to provide a guide to the most significant developments that have affected it since. In the first section, we described how the Court emerged consequent to the partition of Ireland and recounted some details about the first judges who were appointed to discharge its relatively small caseload. In the second section, we explained that while the legislative framework for the Court has been chopped and changed on several occasions, the modern-day Court has accumulated a vast statutory jurisdiction over both civil and criminal matters. In the third section, we delineated major modifications to the process for appointing Court of Appeal judges, including the notable shift from a highly politicised process, which included discrimination on the basis of religion, to a largely de-politicised one that places the principle of merit at its centre. Having provided this historical backdrop to the Court as it exists today, we can now turn to a more in-depth exploration of the Court’s recent activities.

1

For a brief account of the judicial system that pertained in Ireland prior to the 1877 Act, see the Report of the Committee on the Supreme Court of Judicature of Northern Ireland (The MacDermott Report: Cmnd 4292, 1970), para 52.

2

Supreme Court of Judicature Act (Ireland) 1877, s 6.

3

Ibid, s 10.

4

Appellate Jurisdiction Act 1876, s 3(3).

5

Supreme Court of Judicature Act (Ireland) 1877, ss 4–5.

6

JAL McLean, ‘Some Developments in Northern Ireland Since 1921’ (1972) 23 NILQ 82, 82.

7

Government of Ireland Act 1920, s 1(2).

8

Ibid, s 39(2), Sch 7, Pt 1, para 1(1), and s 40(2), Sch 7, Pt 2, para 1(1).

9

Ibid, s 39(2), Sch 7, Pt 1, para 2(1), and s 40(2), Sch 7, Pt 2, para 2(1).

Ibid, s 42.

Ibid, s 43.

McLean, n 6, 86.

Government of Ireland Act 1920, s 49.

14

Irish Free State (Consequential Provisions) Act 1922, Sch 1, para 6.

15

Leyburn v Armagh County Council (No. 2) [1922] 2 IR 58.

16

Ibid. For historical details on how the Court of Appeal in Northern Ireland chose to treat precedents established by the courts which had previously exercised an equivalent jurisdiction in Ireland, and how it chose to treat precedents on analogous points of law decided by the Court of Appeal in England and Wales, see FH Newark, ‘Law and Precedent in Northern Ireland’ (1972) 23 NILQ 100. Also see Parkinson v Watson [1956] NI 1, a salient decision by the Court of Appeal which is not cited by Newark but which was brought to our attention by Anurag Deb. We refer to the Court’s current approach to precedents in Chapter 3.

17

Memoranda on the setting up of the Supreme Court of Judicature in Northern Ireland, and other matters incidental thereto, 1st October, 1921–31st July, 1922, 25, in the Public Records Office of Northern Ireland at T311/1.

18

Ibid.

19

Wilson and Brown JJ were the first puisne judges appointed to the High Court of Justice in Northern Ireland. The maximum number of puisne judges expanded to its current limit of 15 in several increments. The original maximum of 2 puisne judges was expanded to 4 by the Administration of Justice Act 1968, s 1(1)(d); it then increased to 5 under art 2 of the Maximum Number of Judges Order 1972, to 6 under the Judicature (NI) Act 1978, s 2(1), to 7 under art 2 of the Maximum Number of Judges (NI) Order 1993, to 9 under art 2 of the Maximum Number of Judges (NI) Order 2001, to 10 under art 2 of the Maximum Number of Judges (NI) Order 2004; and finally to 15 under art 2 of the Maximum Number of Judges (NI) Order 2020. There are currently 11 puisne judges in post, the highest number to hold office at any one time to date.

20

The maximum number of Lords/Ladies Justices of Appeal has been increased only once in the history of the Court of Appeal in Northern Ireland. It was expanded from 2 to 3 by art 3 of the Administration of Justice (NI) Order 1975, which amended the Government of Ireland Act 1920, Sch 7, Pt 2, para 2(1), but the current statutory basis for this limitation is s 3(1) of the Judicature (NI) Act 1978. We will later explore whether there is a now a good case for creating a fourth post. See Chapters 3 and 8.

21

See Appendix A for a complete list of Sir Denis Henry’s successors as Lord/Lady Chief Justice of Northern Ireland.

22

Sir Declan Morgan, ‘Centenary Lecture on the Lord Chief Justices of Northern Ireland’ (8 December 2021), [10]-[26], available at www.judiciaryni.uk/publications/centenary-lecture-lord-chief-justices-northern-ireland-rt-hon-sir-declan-morgan-8; Éamon Phoenix, ‘The Life and Career of Denis Henry (1864–1925): Barrister, Ulster Unionist Politician and First Lord Chief Justice of Northern Ireland’ in Brice Dickson and Conor McCormick (eds), The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore (Hart Publishing 2021); AD McDonnell, The Life of Sir Denis Henry: Catholic Unionist (Ulster Historical Foundation 2000).

23

Morgan, n 22, [22]. The other person responsible for his appointment was Ernest Clark, ‘a civil servant with responsibility for the proposed wider Northern Ireland administration’: ibid [21].

24

Edward Jones, Jones L.J.: His Life and Times – The Autobiography of The Right Honourable Sir Edward Jones (The Impartial Reporter 1987) 91.

25

Morgan, n 22, [23].

26

Government of Ireland Act 1920, Sch 7, Pt 3, para 1(d); Memoranda, n 17, 1.

27

Memoranda, n 17, 2–4.

28

For a definitive account of how the Royal Courts of Justice were commissioned and constructed, see AR Hart, A History of the Bar and Inn of Court of Northern Ireland (The General Council of the Bar of Northern Ireland 2013) Ch 5.

29

See Appendix B for a complete list of Sir William Moore’s successors as a Lord Justice of Appeal.

30

Robert Carswell, ‘Founding A Legal System: The Early Judiciary of Northern Ireland’ in Felix M Larkin and Norma M Dawson (eds), Lawyers, the Law and History (Four Courts Press 2013) 20.

31

Ibid 15.

32

See Richard McBride, ‘Sir John Ross Bt: The Last Lord Chancellor of Ireland 1921–1922’ in David Capper, Conor McCormick, and Norma Dawson (eds), Law and Constitutional Change (Cambridge University Press, forthcoming).

33

Morgan, n 22, [31].

34

Memoranda, n 17, 1.

35

Morgan, n 22, [34].

36

Ibid.

37

Carswell, n 30, 20–1.

38

See n 20. The first Lord Justice of Appeal to be appointed to this third seat on the bench was Sir Ambrose McGonigal. See Appendix B for a complete list of his successors as a Lord Justice of Appeal.

39

See Appendix B for a complete list of Sir James Andrews’s successors as a Lord Justice of Appeal.

40

His brother John was the second Prime Minister of Northern Ireland and his brother Thomas was Managing Director of the shipbuilding company responsible for designing RMS Titanic.

41

Carswell, n 30, 22–3.

42

Jones, n 24, 93.

43

Memoranda, n 17, 32.

44

Carswell, n 30, 17.

45

A letter from AN Anderson to the Prime Minister of Northern Ireland, 29 October 1925, in the Public Records Office of Northern Ireland at CAB/9/I/10/5. The opening paragraphs of the letter indicate that its message reflects a conversation between Anderson and the then Lord Chief Justice.

46

Memoranda, n 17, 12.

47

See, for example, Adams v McGill [1923] 2 IR 98, wherein Henry LCJ delivers a single judgment on behalf of the King’s Bench Division of the High Court, or Macaura v The Northern Assurance Company Ltd [1925] NI 141, where Moore and Andrews LJJ dismiss an appeal against a judgment delivered by Henry LCJ on behalf of the King’s Bench Division of the High Court.

48

See Chapter 3 for our analysis of the Court’s caseload between 1999 and 2023.

49

‘Ulster’s Request: All Parties Desire the Bill’ (Belfast News Letter, 4 July 1930), as excerpted and included in a Ministry of Home Affairs file about the Court of Criminal Appeal in Northern Ireland, in the Public Records Office of Northern Ireland at HA/8/278.

50

Government of Ireland Act 1920, s 47.

51

Criminal Appeal Act 1907.

52

Criminal Appeal (Scotland) Act 1926.

53

Criminal Appeal (NI) Act 1930, s 1(1).

54

McLean, n 6, 84. Some footnotes within these quotations have been removed.

55

Criminal Appeal (NI) Act 1930, s 2.

56

Ibid.

57

Ibid, s 3(3).

58

Robert Carswell, ‘Eheu Fugaces: Fifty Years in the Northern Ireland Courts’ in Daire Hogan and Colum Kenny (eds), Changes in Practice and Law: A Selection of Essays by Members of the Legal Profession to Mark Twenty-Five Years of the Irish Legal History Society (Four Courts Press 2013) 7.

59

James R Lindsay, ‘Editorial: A Review of the Supreme Court of Northern Ireland’ (1946) 7 NILQ 3, 7.

60

Courts in Northern Ireland: The Future Pattern (Cmnd, 6892), paras 22–3.

61

Judicature (NI) Act 1978, s 34(3). We note, for completeness, that the Court of Criminal Appeal was reconstituted by the Criminal Appeal (NI) Act 1968 with the same jurisdiction as before but in a more consolidated format.

62

Courts in Northern Ireland: The Future Pattern (Cmnd, 6892), para 24.

63

These papers are accessible in the Public Records Office of Northern Ireland at NIO/9/2/2/12.

64

See the Report of the Committee on the Supreme Court of Judicature of Northern Ireland (The MacDermott Report: Cmnd 4292, 1970); the Report of the Joint Committee on Civil and Criminal Jurisdiction in Northern Ireland (The Lowry Report: Cmnd 5431, 1972); and the Report of the Committee on County Courts and Magistrates’ Courts in Northern Ireland (The Jones Report: Cmnd 5431, 1974).

65

Carswell, n 58, 20. See the Rules of the Supreme Court (Northern Ireland) 1980, which were modelled closely on the English Rules of 1965. Under the Constitutional Reform Act 2005, Sch 11, para 3(1), the Rules may now be cited as the Rules of the Court of Judicature (Northern Ireland) (Revision) 1980.

66

Ibid.

67

Ibid.

68

BJAC Valentine, Civil Proceedings: The Supreme Court (SLS Legal Publications (NI) 1997); BJAC Valentine, Supplement to Civil Proceedings: The Supreme Court (SLS Legal Publications (NI) 2000). Also see BJAC Valentine, Criminal Procedure in Northern Ireland (2nd edn, SLS Legal Publications (NI) 2010) Ch 15; BJAC Valentine, Civil Proceedings: The County Court (SLS Legal Publications (NI) 1999) Ch 20.

69

Rules of the Court of Judicature (NI) 1980, available at www.justice-ni.gov.uk/publications/court-rules-publications, as amended up to June 2021. See Orders 59–61 in particular.

70

See Valentine: All Laws of Northern Ireland, available to Lexis+ subscribers at https://plus.lexis.com/api/permalink/b4c756cb-3574-444b-9ca1-6450474bacf9/?context=1001073. This resource used to be distributed to subscribers by way of regularly updated CDs that were produced and sold by the Law Society of Northern Ireland, until it was bought over by Lexis+ in recent years.

71

See Chapter 8.

72

Judicature (NI) Act 1978, s 34(1)–(2).

73

Valentine, Civil Proceedings, n 68, 491.

74

We highlight, for completeness, that the Criminal Appeal (NI) Act 1980 consolidated various provisions; the Criminal Justice Act 1988 allowed ‘references’ to be made in relation to ‘unduly lenient’ sentences; the Criminal Appeal Act 1995 provided for possible miscarriages of justice to be referred by the Criminal Cases Review Commission, and the Criminal Justice (NI) Order 2004 permitted the prosecution to appeal against certain rulings by Crown Court judges.

75

Justice (NI) Act 2002, s 12, as amended by the Constitutional Reform Act 2005, s 11. The 2005 Act, s 59, renamed the Supreme Court of Judicature of Northern Ireland by removing the word ‘Supreme’.

76

We have read the draft of a discourse by Graham Truesdale, provisionally titled ‘Doing the State Some Service: Judicial Appointments in Northern Ireland Since 1921’, which fulsomely covers the history of senior judicial appointments in Northern Ireland. We trust that Truesdale’s work will provide an insightful addition to the literature when it is published and we gratefully acknowledge the assistance that we have derived from it for the purposes of this chapter section.

77

As indicated, this section focuses on how the appointments process has changed over time. See Appendix C for a full picture of how the composition of the Court has changed since its inception.

78

There is an excellent historical summary of the appointment processes up to 1956 in a Ministerial advice letter dated 13 August 1956, in the Public Records Office of Northern Ireland at CAB/9/I/10/4.

79

The original correspondence about this episode is contained within the same file, ibid.

80

Ibid.

81

That is, Richard Best, Sir Anthony Babington, Edward Murphy, Arthur Black, and John Clarke MacDermott. It might be worth noting here that, as Claire Palley put it in 1972, active participation in politics is ‘an accepted preliminary in many countries to the path of judicial preferment’: ‘The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution’ (1972) 1 Anglo-American Law Review 368, 398.

See n 78.

Ibid.

Ibid.

Ibid.

Ibid, letter dated 28 December 1948.

87

n 78.

88

An original copy of this memorandum is stored in a separate file in the Public Records Office of Northern Ireland: CAB/9/I/10/3.

89

Brice Dickson, ‘Northern Ireland’s Troubles and the Judges’ in Brigid Hadfield (ed), Northern Ireland: Politics and the Constitution (Open University Press 1992) 133.

90

Correspondence and minutes relating to this episode are accessible from the National Archives at LCO/2/8153 and from the Public Records Office of Northern Ireland at CAB/9/I/10/4.

91

Ibid, LCO/2/8153, letter dated 21 July 1956, wherein Lord MacDermott stated, inter alia, that ‘Mr. Nicholson is a Roman Catholic of good standing’.

92

Ibid, LCO/2/8153, minutes dated 7 August 1956.

93

Ibid, CAB/9/I/10/4, letter dated 5 September 1956.

94

Ibid, LCO/2/8153, letter dated 11 September 1956.

95

His son, Sir Michael Nicholson, was appointed to the High Court in 1986 and then to the Court of Appeal in 1995.

96

CAB/9/I/10/4, letter dated 29 October 1968.

97

Ibid, letter dated 30 October 1968.

98

Ibid, letter dated 31 October 1968.

99

LCO/33/138, note by MD Heubner dated 25 June 1984.

100

Justice (NI) Act 2002, s 12, as amended by the Constitutional Reform Act 2005, s 11.

101

Justice (NI) Act 2002, ss 2 and 3, Schs 1 and 2; Justice (NI) Act 2004, ss 1 and 2, Sch 1.

102

Review of the Criminal Justice System in Northern Ireland (HMSO, 30 March 2000) Ch 6.

103

Ibid, para 6.85.

104

Ibid.

105

On the concept of merit in this context, see John Morison, ‘Finding “Merit” in Judicial Appointments: The Northern Ireland Judicial Appointments Commission (NIJAC) and the Search for a New Judiciary for Northern Ireland’ in Anne-Marie McAlinden and Clare Dwyer (eds), Criminal Justice in Transition: The Northern Ireland Context (Hart Publishing 2015) Ch 7.

106

Justice (NI) Act 2002, Sch 3, Pt 4, para 6.

107

Judicature (NI) Act 1978, s 12, as amended by the Northern Ireland Act 2009, s 2 and Sch 2.

108

See, for example, the following webpages announcing the launch of recruitment schemes for the post of Lord/Lady Justice of Appeal on 24 May 2019, 18 September 2020, and 13 May 2022: www.nijac.gov.uk/news/lord-or-lady-justice-appeal-court-appeal-northern-ireland-0; www.nijac.gov.uk/news/lord-or-lady-justice-appeal; www.nijac.gov.uk/news/lord-or-lady-justice-appeal-court-appeal.

109

Ibid.

110

Judicature (NI) Act 1978, s 9, as amended by the Justice (NI) Act 2002, s 18(3).