THREE: An Overview of Recent Activities

Publication Date:
07 Nov 2024
Pages:
35–57
DOI:
https://doi.org/10.51952/9781529241754.ch003
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This chapter offers a bird’s-eye view of the business that has been conducted by the Court of Appeal over the past 25 years – since the signing of the Belfast (Good Friday) Agreement in 1998 – as a precursor to the qualitative analysis of that business in subsequent chapters. The chapter begins by providing a statistical breakdown of the cases which have been ‘disposed of’ between 1999 and 2023 and the rather smaller number of cases which have been ‘reported’ in some way. It then examines the contributions of individual judges to the Court of Appeal on a statistical basis and sets out some interesting trends such as the increasing frequency with which retired and puisne judges have been sitting, and the increasing use of two-person appeal panels.

3.1 Introduction

The Court of Appeal has existed for more than 100 years. While its core function remains the same today as in 1921, its workload and the way it has gone about dealing with it have changed considerably. To help paint the present picture, and to contextualise the qualitative analysis of the Court’s civil and criminal jurisdiction in Chapters 4 and 5, this chapter summarises the activities of the Court during the past 25 years – essentially the period since the Belfast (Good Friday) Agreement of 1998. It first provides some statistical information on the number of cases disposed of by the Court, the number of ‘sitting days’, and the number of ‘reported’ cases. It then examines the part played by judges who have sat in the Court of Appeal, noting some interesting trends. Finally, particular attention is paid to several aspects of judgment-writing.

3.2 The Court’s caseload

Table 3.1 displays the numbers of cases disposed of by the Court of Appeal during the past quarter of a century and also the numbers of reported cases, differentiating in each instance between civil cases and criminal cases.

Table 3.1:

Court of Appeal cases disposed of and reported, and sitting days, 1999–2023
Year Civil disposals Criminal disposals All disposals Sitting days (civil) Sitting days (criminal) Reported civil cases Reported criminal cases All reported cases
1999 69 53 122 143 92 19 6 25
2000 34 69 103 107 102 14 20 34
2001 74 67 141 190 129 27 28 55
2002 77 53 130 136 98 24 25 49
2003 79 57 136 81 86 20 34 54
2004 91 69 160 159 140 17 27 44
2005 106 87 193 220 195 23 32 55
2006 86 55 141 140 158 20 27 47
2007 91 51 142 83 57 33 21 54
2008 78 58 136 89 62 22 30 52
2009 84 65 149 114 53 442 21 65
2010 80 69 149 93 62 24 20 44
2011 91 63 154 102 61 31 38 69
2012 96 94 190 102 86 24 36 60
2013 81 89 170 104 77 39 39 78
2014 97 96 193 111 85 44 37 81
2015 70 109 179 102 91 33 44 77
2016 92 91 183 134 80 34 24 58
2017 68 122 190 129 65 40 36 76
2018 79 104 183 111 83 25 26 51
2019 101 97 198 136 89 42 32 74
2020 79 77 156 88 86 30 30 60
2021 61 76 137 104 68 33 31 64
2022 95 95 190 149 69 39 29 68
2023 89 95 184 137 89 39 30 69
Total 2,048 1,961 4,009 3,064 2,263 740 723 1,463
The sources for disposals and sitting days are the annual Judicial Statistics, published jointly by the Northern Ireland Statistics and Research Agency and the Department of Justice: see www.justice-ni.gov.uk/publications/nicts-judicial-statistics (for 2008 to 2023). The sources for reported cases are the websites of the judiciary of Northern Ireland (www.judiciaryni.uk) and of the British and Irish Legal Information Institute (www.bailii.org).

It can be seen at a glance that the two jurisdictions have been almost equally demanding in terms of overall disposals, with 49 per cent of all disposals being criminal and 51 per cent civil, whereas the number of days when judges sit to hear criminal cases (42 per cent of the total) is generally lower than the number of days to hear civil cases (58 per cent).1 This implies that, on average, civil cases are more complex than criminal cases and so take longer to hear. Regardless, the number of cases disposed of by the Court in recent years, whether civil or criminal, has fluctuated considerably since 1999. The average annual number of disposals during the first five-year period (1999 to 2003) was 126, while during the last five-year period (2019 to 2023) it was 173, an increase of 37 per cent.

Counter to expectations, the rise in the number of disposals has not been matched by a rise in the number of sitting days, whether in civil or criminal cases, and the number of sitting days spent on civil cases per year has remained consistently higher than the number spent on criminal cases. Only in two of the last 25 years were more days spent on criminal cases. Over the 25-year period the average number of days spent on civil cases was 123 while for criminal cases it was 91. During the first five-year period the averages were 131 and 101 days respectively, but during the final five-year period these were down to 123 and 80 days. The reduction is probably due in part to the impact of the COVID-19 pandemic in recent years but it is also likely to be attributable to more stringent judicial case management.

The total number of ‘reported’ cases during our period is 1,463, which is obviously a lot lower than the total number of disposals (4,009). A ‘reported’ case, in our definition, is one which is publicly available without any special request having to be made to the court for its release. They are published on the website of the Northern Ireland judiciary and the vast majority are also published on the website of the British and Irish Legal Information Institute (BAILII).2 A selection of concluded cases are not reported in this way because they are deemed to be relatively insignificant from a legal point of view, even though they may be very significant in the lives of the parties involved. The official statistics show that approximately two thirds of all criminal appeals are against sentence only and because they turn on the specific circumstances of each appellant they often do not have the requisite significance to deserve reporting. A very small number of appeals are, by the agreement of the parties, dealt with ‘on the papers only’; that is, with no oral hearing. They too are rarely reported.3

Every appeal will result in a conclusion and on occasions this will be announced in what is called an ex tempore judgment spoken by the presiding judge at the end of the hearing, with reasons being given for the result. Generally speaking such judgments are not reported, though an audio version will be recorded in case a written transcription is requested. Indeed, one of the judges we spoke to for this project indicated that it is their preference ‘to procure a transcript in every case for reasons of transparency’.4 In all other cases, the appeal judges ‘reserve’ their judgment, which means that at some point after the court hearing they discuss what they think the result should be and decide which of them will write a judgment. The common practice today is that before the appeal even starts the Lady Chief Justice will designate which of the judges will be tasked with writing the eventual judgment, but of course this does not preclude one of the other judges in the case also writing a judgment, whether concurring or dissenting. Today, however, it is very unusual for there to be more than one judgment delivered: it did not happen at all during 2023, for instance. The standard practice is for the designated judgment-writer to produce a draft judgment, share it with his or her colleagues so that they can suggest any amendments to it, and then issue a revised judgment for delivery to the parties.

The presiding judge in each case typically ‘signs off’ a judgment when they submit it to the judges’ librarian, who, subject to any minor amendments suggested to the judge and approved as corrections, then uploads it to the website of the Northern Ireland judiciary. We have been informed that in criminal cases where a decision is not published, it is often because a retrial has been ordered. Decisions on whether a case should be commercially reported by the Incorporated Council of Law Reporting for Northern Ireland are taken independently by that body, but the Court of Appeal in any given case can indicate whether it thinks a particular decision should be commercially reported when it is submitted to the judges’ library. There are two commercially printed law report series in Northern Ireland: the Northern Ireland Law Reports and the Northern Ireland Judgments Bulletin. It is for the editors of those series to choose which cases on the judiciary’s website should be included. Each of them provides more information about the case than the bare judgment on the judiciary’s website: they name the barristers and solicitors involved in the case and in the Northern Ireland Law Reports there is a headnote which sums up the facts and the result of the case and also a list of previously reported cases referred to in the judgment. Each volume of these printed reports will contain perhaps 15 to 20 cases, so they represent well under one half of all the cases on the judiciary’s website.

As Table 3.1 indicates, there are 1,463 reported Court of Appeal cases included on the website of the Northern Ireland judiciary and it is these upon which we have focused in the research for this book in order to illustrate the workings of the Court. Reported cases are by definition the most important from a legal point of view, they are freely accessible to everyone, and they are numerous enough to suggest that any findings we base on them are likely to hold good for unreported cases as well. More prosaically, it would have been extremely difficult (even if it had been permitted) for us to go through the Court files relating to the 2,546 unreported cases.

3.3 The composition of the Court

Since 1975 the Court of Appeal has consisted of four judges – the Lord or Lady Chief Justice (as its President) and three Lords Justices of Appeal (there has not yet been a Lady Justice of Appeal). During the 25-year period under review (1999 to 2023) a total of 20 different judges have occupied those positions.5

For almost the first six years – the first few years of Northern Ireland’s peace process after the Belfast (Good Friday) Agreement – the composition of the Court of Appeal did not alter. The first change came in January 2004 when Sir Brian Kerr was appointed to replace Sir Robert Carswell as Lord Chief Justice, the latter having moved to the House of Lords as a Lord of Appeal in Ordinary. Kerr LCJ joined a Court on which the three Lords Justices were already well established in their positions: Sir Michael Nicholson had been a Lord Justice of Appeal since 1995,6 Sir Liam McCollum since 1997,7 and Sir Anthony Campbell since 19988 and they had all been appointed to the High Court bench before he had. The two new Lords Justices appointed in 2007, Sir Malachy Higgins and Sir Paul Girvan, remained in post for seven and eight years respectively and after Sir Patrick Coghlin was appointed in 2008 he too remained for seven years. The most dominant player in our period, however, was Sir Declan Morgan, who was the Lord Chief Justice for just over 12 years, from 2009 to 2021. During that time he partnered with no fewer than 11 different Lords Justices, the last seven of whom served between 21 and 38 months only. The retirement age for judges was still 70 and time had caught up with them. Now that the retirement age has been raised again to 75 there is likely to be less of a turnover in Court of Appeal judges than in previous years.9 It remains to be seen whether the periods served will come close to those served by some of the earliest Lords Justices: Sir James Andrews served from 1921 to 1937, Richard Best from 1925 to 1939, Arthur Black from 1949 to 1964, and Sir Lancelot Curran (the longest of all) from 1956 to 1975.

Recent years have also been momentous as regards the participation of female judges in the Court of Appeal. The first reported case in which a woman adjudicated there was Harkin v Brendan Kearney and Company, Solicitors, in which McBride J sat.10 Madam Justice McBride was also the first woman to deliver a judgment in a reported Court of Appeal decision, in R v Ruddy.11 Dame Siobhan Keegan, after becoming the first woman to be appointed as the Chief Justice of Northern Ireland in 2021, was thus also the first to preside in the Court of Appeal – Re OV’s (A Minor) Application appears to be the first reported case in which that occurred.12 We have also witnessed the first reported case in which two female judges sat together in the Court of Appeal: R v Hughes.13

There are no ex officio members of the Court of Appeal in Northern Ireland, unlike in England and Wales. All members of the UK Supreme Court are ex officio members of the Court of Appeal of England and Wales if, at the date of their appointment, they were qualified for appointment as a Lord or Lady Justice of Appeal.14

3.3.1 The composition of appeal panels

It is the Lord or Lady Chief Justice who decides which judges should sit in any particular appeal. In Re the Northern Ireland Human Rights Commission’s Application counsel objected to the fact that the composition of the Court of Appeal had been decided by Carswell LCJ, against whose decision the appeal in question was being brought. But the Court of Appeal rejected the point, McCollum LJ saying:

I am not impressed by the suggestion that the Lord Chief Justice has been or could be thought to be influenced in any way by his perception of the likely attitude of any of the members of the court or that he would in any circumstances choose a court on the basis that it is one that would be likely to uphold his judgment irrespective of its assessment of the true merits of the case.15

What is certainly clear is that the four judges who currently make up the Court of Appeal cannot by themselves cope with all the cases that are brought to the Court. In fact, this has been the position for quite some time. Table 3.2 indicates the various formations in which the Court sat in reported cases during the 20 years from 2004 to 2023.16

Table 3.2:

The composition of appeal panels, 2004–23
3-judge panels 2-judge panels
Year LCJ, LJ, and LJ LJ, LJ, and LJ LCJ/LJ, LJ, and J LCJ/LJ, J, and J LCJ/LJ and LJ LCJ/LJ and J Total
2004 24 4 14 0 0 0 42
2005 23 3 15 3 2 4 50
2006 20 8 13 2 3 0 46
2007 26 4 12 1 4 1 48
2008 28 4 10 0 4 0 46
2009 29 14 15 2 2 1 63
2010 22 10 7 0 4 0 43
2011 32 16 18 0 3 0 69
2012 33 8 16 0 2 0 59
2013 41 15 17 0 0 0 73
2014 29 11 35 1 2 0 78
2015 34 9 23 9 1 0 76
2016 16 12 19 4 5 2 58
2017 19 5 39 6 4 3 76
2018 10 7 16 2 12 3 50
2019 16 8 33 5 5 6 73
2020 10 5 25 9 5 5 59
2021 8 2 34 8 4 8 64
2022 13 1 24 8 8 13 67
2023 3 0 40 8 9 9 69
Total and % 436

36%		 146

12%		 425

35%		 68

6%		 79

6%		 55

5%		 1,209

100%

In some years it was not possible to determine how many judges sat in a number of the reported cases: 2004 (2), 2005 (5), 2006 (1), 2007 (6), 2008 (6), 2009 (2), 2010 (1), 2012 (1), 2013 (5), 2014 (3), 2015 (1), 2018 (1), 2019 (1), 2020 (1), and 2022 (1).

Three features stand out from Table 3.2. The first is that the number of cases which are dealt with only by the four permanent members of the Court of Appeal has dropped considerably. In the last five years (2019 to 2023) less than 20 per cent of the Court’s decisions have been heard only by the Lord/Lady Chief Justice and the Lords Justices (and in 2023 the figure was just 4 per cent), whereas in the first five years (2004 to 2008) as many as 62 per cent were so heard. Over the entire 20-year period only 48 per cent of all cases were the sole preserve of the permanent members. The corollary of this development is that the Court has relied increasingly on High Court judges serving as ad hoc members of the Court of Appeal, as the Judicature (NI) Act 1978 permits.17 In fact it is now the norm that a High Court judge will sit in a Court of Appeal case. In our interviews with judges who have sat on the Court of Appeal there was virtual unanimity that High Court judges benefited from the experience of serving in the Court of Appeal from time to time: it is a good opportunity for them to see how that Court goes about overseeing the work of judges in lower courts and it provides some training to those who may in due course apply for a permanent post in the Court of Appeal.18

The second noticeable feature of Table 3.2 is that much greater use is being made than before of two High Court judges in appeals. During the first ten-year period (2004 to 2013) the phenomenon occurred on only eight occasions, while in the second ten-year period (2014 to 2023) it occurred no fewer than 60 times. This is quite remarkable and can hardly be attributable to the need for High Court judges to learn about appellate processes because in those cases they will constitute the majority in the Court of Appeal and could out-vote the Chief Justice or Lord Justice who is presiding.19 A closer look at these cases does not suggest that two High Court judges are being used more often in one kind of case rather than in another (for example, criminal rather than civil). It should be noted, as well, that the number of available High Court judges has increased over the years. Today there are 11 in office while in 2004 there were nine.

The third stand-out feature of Table 3.2 is the rise in the number of two-judge panels. Again, these are perfectly lawful because, while section 36(1) of the Judicature (NI) Act 1978 provides that ‘every appeal to the Court of Appeal, other than an appeal under the Criminal Appeal Act, and every matter preliminary or incidental to such appeal shall be heard before three judges of that court’, section 36(2) then provides that ‘[w]here the Lord [or Lady] Chief Justice so directs, any such appeal or matter may be heard before two judges’. The reference in section 36(1) is to the Criminal Appeal (NI) Act 1980, but it too contains a provision saying that, while every appeal or reference to the Court of Appeal under that Act must be heard before three judges, the Chief Justice may direct that any such appeal or reference or matter can be heard before two judges.20 If two judges hear an appeal but cannot agree on the outcome, the case must be reheard before three judges if it is a criminal case and may be reheard before three judges if one of the parties to a civil case so applies.21 It is interesting that in England and Wales a two-judge Court of Appeal is prohibited from determining, among other things, an appeal against conviction and an application to appeal to the Supreme Court.22

Table 3.2 shows that 11 per cent of appeals in the last 20 years have been heard by two-judge panels and in the last five years the figure has been 21 per cent. During the latter period 17 of the 69 two-judge appeals (25 per cent) were criminal appeals and in 40 appeals (58 per cent) one of the two judges was a High Court judge. We will return to this topic in more depth later in the book, where some differing points of view among the judges we interviewed will be set out.23 For comparison’s sake, we note at this juncture that in England and Wales three judges are the norm in both civil and criminal cases, although in the latter the three judges in question are usually one Lord/Lady Justice and either two High Court judges or one High Court and one circuit court judge.24 The thinking there is that the involvement of judges who have experience of Crown Court trials can be very beneficial to the Court of Appeal. Appeals against sentence are routinely heard by two High Court judges in England and Wales, a practice which is unheard of in Northern Ireland. Legislation for Northern Ireland precludes the Court of Appeal from sitting as a bench of more than three judges, but the relevant legislation for England and Wales contains no such limitation.25 Benches of five judges are used there in particularly important cases, especially on the criminal side.26

3.3.2 Assistance from retired judges and others

High Court and Court of Appeal judges who retire before the mandatory retirement age can be asked to sit as ad hoc judges in the Court of Appeal and this was fairly common during the 25-year period under review. There were times when some High Court positions were vacant for long periods, which meant that fewer of the serving High Court judges were available to sit in the Court of Appeal and greater resort was therefore had to retirees. It is difficult to give precise figures on the number of times retirees sat in cases because even though they are listed as a retiree when the judgment is published (by naming them, say, as Sir Paul Girvan rather than as Girvan LJ), it is often unclear whether the judge was already retired at the time the case was heard or whether the retirement occurred between the hearing and the delivery of the judgment. But there are many cases where it is certain that the judge was already retired when the case was heard. Sir Paul Girvan, who retired as a Court of Appeal judge in 2015, sat in at least 17 reported cases before he reached the age of 75 in 2023. Sir Richard McLaughlin, who retired as a High Court judge in 2012 at the age of 65, sat in at least 14 reported cases over the course of the subsequent ten years. There are cases where, by the time the judgment was delivered, all of the judges involved had retired.27

Serving Court of Appeal judges are now also helped in a different way – by a judicial assistant.28 The introduction of this role was an initiative of the current Lady Chief Justice. In 2023 the Law Society of Northern Ireland, in conjunction with the Bar Council and the Lady Chief Justice’s Office, advertised for a judicial assistant to directly support the Lady Chief Justice and the Court of Appeal.29 According to the advertisement the role includes attending hearings and discussing relevant legal issues with the assigned judge, conducting research in connection with particular cases and preparing reports on particular points the judge would like to see addressed, proof-reading draft judgments, drafting press summaries under the direction of the Head of Judicial Communications in the Lady Chief Justice’s Office, assisting with the assigned judge’s extra-judicial communication and educational activities, and liaising with the Lady Chief Justice’s Office and the Northern Ireland Courts and Tribunals Service with regard to cases and listings. The post was a short-term one (for ten months only) but the Law Society and Bar Council, who are paying for it, have already confirmed their support for a second post-holder.

There is also a Legal Unit within the Lady Chief Justice’s Office. It employs a small number of experienced legally qualified staff on a full-time permanent basis, whose duties include assisting both the High Court and the Court of Appeal with their workload. We were told that in criminal appeals the Unit routinely summarises for the judges the arguments being raised. It also undertakes other specific research tasks at the request of individual judges.

3.3.3 A fourth Lord or Lady Justice of Appeal?

The figures presented in this section suggest that the workload of the Court of Appeal may exceed the capacity of the four permanent Court of Appeal judges to deal with alone. The size of the Court has not altered since 1975. The question can therefore fairly be asked: should a fourth post of Lord or Lady Justice of Appeal be created? There is power to do so within the Northern Ireland Executive’s Department of Justice: with the agreement of the Northern Ireland Judicial Appointments Commission it can issue an order authorising the appointment of additional Lords or Ladies Justices of Appeal.30 As far as we know, however, no serious consideration has yet been given to taking such a step, even though the evidence is mounting that such an investment could be easily justified. In England and Wales, which has a population roughly 31 times that of Northern Ireland, there are only 39 posts available for Lords and Ladies Justices of Appeal, so four in Northern Ireland might seem disproportionately high. That said, there must be some regard for the different practices in England and Wales that we have noted previously, including the routine use of two High Court judges in sentencing appeals. We will further explore judicial viewpoints on the proposal for a fourth Lord or Lady Justice of Appeal later in this book.31

3.4 The judges who delivered judgments

Our survey of reported decisions by the Court of Appeal since 1999 looked closely at which judges were delivering the judgments. The almost constant practice is for just one judgment to be delivered. Usually it is described as ‘the judgment of the court’, although occasionally it will be referred to more specifically as ‘the judgment of the court to which all the judges have contributed’. Table 3.3 sets out the data relating to the 20 permanent members of the Court of Appeal who served during our 25-year period. Altogether they delivered 1,417 judgments. A further 150 (10 per cent of all judgments) were delivered by High Court judges.

Table 3.3:

Judgments issued by permanent members of the Court of Appeal, 1999–2023*
Name of judge Time served on the Court of Appeal Number of reported cases in which the judge sat** Number of judgments issued Percentage of cases in which a

judgment was given
Carswell LCJ 5 years n/a 168 n/a
Nicholson LJ 8 years n/a 70 n/a
McCollum LJ 5 years, 8 months n/a 14 n/a
Campbell LJ 10 years n/a 35 n/a
Kerr LCJ 5 years, 5 months 193 162 84%
Sheil LJ 2 years, 2 months 76 8 11%
Higgins LJ 7 years, 5 months 285 46 16%
Girvan LJ 8 years, 8 months 333 144 43%
Coghlin LJ 7 years 265 64 24%
Morgan LCJ 12 years, 2 months 471 317 67%
Gillen LJ 3 years, 3 months 140 45 36%
Weatherup LJ 2 years 83 27 33%
Weir LJ 2 years 89 23 26%
Stephens LJ 3 years, 1 month 109 54 50%
Deeny LJ 2 years 58 24 41%
Treacy LJ 6 years, 2 months 169 53 31%
McCloskey LJ 4 years, 4 months 120 91 76%
Maguire LJ 1 year, 8 months 53 7 13%
Keegan LCJ 2 years, 4 months 82 63 77%
Horner LJ 1 year, 4 months 35 2 6%
Total n/a n/a 1,417 n/a

* The column on ‘judgments issued’ includes judgments delivered after the judge’s retirement as a member of the Court of Appeal but not those issued while he or she was still a High Court judge. ** Of necessity these figures exclude cases where it has not been possible to determine the full composition of the Court (see n 16).

The most telling figures in Table 3.3 are those in the right-most column. They indicate how frequently a judge in the Court of Appeal delivered a judgment. Clearly the most prolific judgment-writers tend to be the Chief Justices. During his tenure of that role Kerr LCJ gave a judgment in 84 per cent of the cases in which he sat, Morgan LCJ did so in 67 per cent of his cases, and Keegan LCJ has already done so in 77 per cent of hers. Had it been possible to determine the judgment rate for Carswell LCJ it is likely that the figure might have been even higher than Kerr LCJ’s, since we do know that he gave a judgment in 76 per cent of all the reported cases between 1999 and 2003 (168 out of 217). Given that Chief Justices have so many other responsibilities besides serving as President of the Court of Appeal, it is astonishing that they are able to find the time to write as many appellate judgments as they do. Another very prolific judgment-writer, still in post, is McCloskey LJ, with a 76 per cent judgment rate. Furthermore, although they served as Lords Justices for relatively short periods, Stephens LJ and Deeny LJ also wrote judgments in at least half of the cases in which they sat. Girvan LJ, too, was very active in judgment-writing and over a much longer period.

Of course, such statistics can both reveal and conceal certain insights. We have been informed, for example, that while the number of reported judgments issued by Campbell LJ (35) might look surprisingly low for a Lord Justice of Appeal who was in post for ten years, he ‘was an influential member of the Court of Appeal in that he would be relied on when it came to the formulation of decisions’.32 Thus, by virtue of this influential position, it has been suggested to us that Campbell LJ may have sat more often with the Lord Chief Justice in ‘weighty’ cases, where he would make substantial contributions which cannot be reflected in Table 3.3.33

3.4.1 Concurring and dissenting judgments

Unlike in England and Wales there is no legislation in Northern Ireland requiring only a single judgment to be given in a Court of Appeal case unless the presiding judge is of the opinion that ‘the question is one of law on which it is convenient that separate judgments should be pronounced’.34 The reality is, however, that in Northern Ireland both concurring and dissenting judgments are extremely rare. The Court of Appeal almost always speaks univocally.

Throughout the 25-year period under review, during which there were 1,463 reported cases, single concurring judgments were delivered in only 24 cases and two concurring judgments in only 11. That means that concurring judgments were given in just 2.4 per cent of all cases. As regards dissenting judgments (whether full or partial), there were just 26 (1.8 per cent). In seven of those cases there was a further appeal to the House of Lords or Supreme Court.

3.4.2 The approach to precedents

The Court of Appeal in Northern Ireland is bound by decisions of the House of Lords and the Supreme Court, unless those precedents are not directly relevant because they turn on the wording of legislation which is not applicable in Northern Ireland.35 The Court of Appeal also generally follows its own previous decisions, as McCloskey LJ confirmed in Doherty v Ministry of Defence,36 where he said:

There is a strong general principle that the Court of Appeal in this jurisdiction is bound by its previous decisions. Our approach essentially mirrors that of the English Court of Appeal dating from Young v Bristol Aeroplane. …37 The two leading decisions in this jurisdiction are Leppington v Belfast Corporation …38 and, more recently, Re Rice’s Application.39

As regards previous decisions by the Court of Appeal in England and Wales, these are seen as persuasive but not binding in Northern Ireland. The relevant principle was confirmed by Campbell LJ in Re Staritt’s and Cartwright’s Applications:

It has been long established that while this court is not technically bound by decisions of courts of corresponding jurisdiction in the rest of the United Kingdom it is customary for it to follow them to make for uniformity where the same statutory provision or rule of common law is to be applied. ...40 This is not to say that the court will follow blindly a decision that it considers to be erroneous.41

The Court of Appeal in Northern Ireland is also willing to treat decisions by the Inner House of the Court of Session in Scotland as persuasive.42 In addition, the Court has occasionally taken into account judgments issued by the Irish Court of Appeal and the Irish Supreme Court.43

The Court of Appeal’s invocation of both binding and non-binding precedents is an essential part of how it manages to achieve a good measure of consistency and efficiency when dealing with similar points of law and fact in the course of dispatching its large caseload. It is clearly aware of the conceptual tension associated with the doctrine of precedent; namely, ‘a tension between, on the one hand, the certainty and predictability we need to satisfy the rule of law and achieve systemic justice, and, on the other hand, our perfectly proper concern over achieving justice in the individual cases’.44 As Lord Denning put it to his fellow Law Lords in 1959, the doctrine of precedent ‘does not compel your Lordships to follow the wrong path until you fall over the edge of a cliff’.45

3.5 Conclusion

This chapter has tried to convey a general sense of the quantity of work which the Court of Appeal has undertaken over the past 25 years. Among other features it has highlighted are the increasing reliance on High Court judges and the dominant role played by the Chief Justice. The following two chapters look more closely at the way the Court has conducted itself in relation first to its civil jurisdiction and then to its criminal jurisdiction.

1

A ‘sitting day’ is defined as ‘a period of work by a judge in a single courtroom on a single day’. Different types of business might be heard at one sitting but business heard in different courtrooms is counted as separate sittings. Sittings held in judges’ chambers are not included.

2

See the text accompanying Table 3.1.

3

One example is Horner v Cleaver Fulton and Rankin (a firm) [2018] NICA 36.

4

J5.

5

See Appendix C for a picture of how the composition of the Court has changed since its inception.

6

Sir Michael retired in 2006, after 11 years of service. He died on 30 October 2023, while this book was being written. For an obituary, which includes a reference to the religious discrimination his barrister father allegedly experienced when judicial preferments were occurring a generation earlier, see The Irish Times, 27 January 2024. For our account of the archival evidence substantiating that allegation, see Chapter 2.

7

Sir Liam retired in the summer of 2004. He died on 5 June 2023.

8

Sir Anthony retired in the summer of 2008, after ten years of service.

9

The retirement age was raised to 75 by the Public Service Pensions and Judicial Offices Act 2022, s 121 and Sch 1, in force from 10 March 2022.

10

[2015] NICA 79.

11

[2016] NICA 17.

12

[2021] NICA 58.

13

[2022] NICA 12, a case in which guidance was given on the sentencing of persons who are found guilty of multiple incidents of domestic violence. We have learned that both McBride J and Keegan J, with Deeny LJ presiding, were to have sat in Jordan’s (Teresa) Application [2018] NICA 23, but that prior to the hearing of the case on 1 May 2018 Keegan J was replaced by O’Hara J. Deeny LJ noted publicly at the time that it was the first occasion on which two female judges had sat in the Court of Appeal.

14

Senior Courts Act 1981, s 2(2)(c).

15

[2001] NICA 17, [2001] NI 271.

16

Reported cases dating from the first five years of our period (1999 to 2003) do not provide enough detail of the names of judges who sat in each case to enable accurate figures to be included in Table 3.2.

17

Section 3(2) provides that ‘Every judge of the High Court shall be a judge of the Court of Appeal for the purposes of its jurisdiction in a criminal cause or matter’ and s 6(2) states that ‘A judge of the High Court shall, if requested to do so by the Lord [or Lady] Chief Justice, sit and act as a judge of the Court of Appeal when that court is exercising jurisdiction other than jurisdiction in a criminal cause or matter’.

19

In Finucane v Secretary of State for Northern Ireland [2017] NICA 7 Gillen LJ dissented from his two High Court colleagues, who held that on the facts the duty to conduct an investigation compliant with Art 2 of the ECHR had been revived.

20

Criminal Appeal (NI) Act 1980, s 44(1) and (2).

21

Ibid, s 44(3) and Judicature (NI) Act 1978, s 36(3)(b).

22

Senior Courts Act 1981, s 56(4). For some judicial reflections on the advantages and disadvantages of using two-judge courts in England and Wales, see Jack Beatson, Launcelot Henderson, and Keith Lindblom, ‘Collective Judging in the Court of Appeal of England and Wales’ in Birke Häcker and Wolfgang Ernst (eds), Collective Judging in Comparative Perspective: Counting Votes and Weighing Opinions (Intersentia 2020) 43–44.

24

Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Hart Publishing 2011) 324. A circuit court judge is more or less equivalent to a county court judge in Northern Ireland. The Senior Courts Act 1981, s 55(6), precludes more than one circuit judge sitting in a Court of Appeal case in England and Wales.

25

Contrast the Judicature (NI) Act 1978, s 36 with the Senior Courts Act 1981, ss 54 and 55.

26

See Chapter 8 for some judicial reflections on the desirability of enabling this in Northern Ireland.

27

Northern Ireland Electricity Networks Ltd v Brickkiln Waste Ltd [2018] NICA 43; Quinn v Cloughvalley Stores (NI) Ltd [2019] NICA 5; Walsh v Department of Justice [2020] NICA 34.

28

For the position in the Court of Appeal of England and Wales see Darbyshire, n 24, 325, and for the position in the UK Supreme Court see Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Hart Publishing 2013) 247–57.

29

A second judicial assistant was recruited to support the High Court judge who has lead responsibility for judicial review applications.

30

Judicature (NI) Act 1978, s 3(4).

32

J6.

33

J6.

34

Senior Courts Act 1981, s 59.

35

Re RM’s Application [2022] NICA 35, [2003] NI 274. The test in question related to when it is lawful to detain a mentally ill person in hospital for treatment. The Supreme Court later reversed the Court of Appeal’s decision: [2024] UKSC 7, [2024] 1 WLR 1280.

36

[2020] NICA 9, [2021] NIJB 193, [30].

37

[1944] KB 718, 729–30, per Lord Greene MR.

38

DR Miers, ‘Rotten Eggs in the Court of Appeal’ (1969) 20 NILQ 308. In Leppington Lord MacDermott CJ suggested that the Court of Appeal in Northern Ireland should be allowed to depart from a previous decision if it felt that its ratio was unclear.

39

[1998] NI 265.

40

Here Campbell LJ cited McCartan v Belfast Harbour Commissioners [1910] 2 IR 470, 494; Re Northern Ireland Road Transport Board and Century Insurance [1941] NI 77, 107; Income Tax Commissioners v Gibbs [1942] AC 402, 414 and McGuigan v Pollock [1955] NI 74, 106.

41

[2005] NICA 48, [2006] NIJB 249, [21]. See too Morgan LCJ in SH v RD [2013] NICA 44, citing Beaufort Development v Gilbert Ash [1997] NI 142; also see Baranowski v Rice [2014] NIQB 122, [19], per Stephens J, citing yet further authorities.

42

See Re Meehan’s Application [2018] NICA 42, [2020] NI 440, [38], where the Court did not demur from Sir Paul Girvan’s statement at first instance that the Court of Appeal should ‘follow and apply the ratio of decisions of the Inner House where the law in the two jurisdictions was essentially the same’.

43

See, for example, Quinn v Cloughvalley Stores (NI) Ltd [2019] NICA 5, [38], citing The Governor and Company of the Bank of Ireland v Brian O’Donnell [2015] IECA 73, [2016] 2 IR 185; Department of Finance v Quinn [2019] NICA 41, [2021] NI 1, [24], citing National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51, [2015] 4 IR 626.

44

Robert J Sharpe, Good Judgment: Making Judicial Decisions (University of Toronto Press 2018) 168.

45

Ostime (Inspector of Taxes) v Australian Mutual Provident Society [1960] AC 459, 489; cited in ibid.

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