Conservation and Reform Reflections

This chapter unveils various findings from interviews with current and retired judges who have sat on the Court of Appeal in Northern Ireland. The authors examine the judges’ views on three groups of issues in turn, highlighting policy areas where there seems to be a consensus in favour of either conservation or reform, in addition to areas where the judges’ views vary. The three issues explored are the legislative framework within which the Court of Appeal operates, the Court’s practices and procedures, and the role of the Court’s President (the Chief Justice).

8.1 Introduction

A plethora of interesting revelations emerged from our interviews with a range of judges who have served on the Court of Appeal in Northern Ireland.¹ By peppering quotations from those interviews throughout the preceding chapters of this book, we have sought to share relevant judicial viewpoints in the context of our historical, statistical, and qualitative case law analyses wherever possible. In this chapter we intend to concentrate on our conversations with the judges in their own right. We will examine their views on three groups of issues in particular, highlighting policy areas where there seems to exist a consensus in favour of either conservation or reform, in addition to policy areas where the judges’ views are mixed. First, we will explore some judicial opinions on whether the legislative framework that governs the Court of Appeal should be changed in any way. Second, we will consider whether the judges we have spoken to believe there are any procedural or practical aspects of the way the Court of Appeal works that could be usefully reformed without the need for legislation. Finally, we will unpack some judicial reflections about the role of the President of the Court of Appeal.

At a granular level, we trust that our analysis of various comments and proposals shared by the judges will be a useful starting point for policy development by those who are formally responsible for it at some point in the future. We hope, at least, to provide a helpful window into senior judicial thinking about what works well and what progress might entail. At a more macro level, we believe our interview analysis advances one of the academic aims of this book in so far as it sheds light on what Northern Ireland appellate judges do and think beyond the pages of their judgments. In particular, we will highlight the extent to which our interviewees revealed a fairly consistent propensity to balance pragmatism with idealism when considering each of the discussion points we explored with them. Far from being inherently conservative, in the non-political sense of the word, our conversations with the judges suggest that they are largely open-minded to evidence-based changes to their governance and indeed eager to pilot new initiatives.

8.2 The legislative framework for the Court

Some of the previous chapters in this book have explained the historical development of the statutory framework for the Court of Appeal, culminating most notably in the Judicature (NI) Act 1978,² as well as the statutes which currently confer jurisdiction on the Court by creating specific rights of appeal from various lower courts and tribunals.³ Interestingly, when we asked our interviewees for their views on this legislative scheme, we received an assortment of responses on whether an essentially comprehensive review was required. On the one hand, we heard from a judge who was unaware of any problems with the present statutory framework⁴ and another who said ‘it works satisfactorily in practice’ and has ‘not been found wanting’.⁵ On the other hand, we spoke to a judge who thought that while the 1978 Act, in particular, ‘achieves its purpose’, it was ‘out of date’ and needed reform in order to ‘catch up’.⁶ Similarly, another judge told us that ‘an Access to Justice Act of some sort is … an important bit of structural work that needs to be done here’.⁷ Falling somewhere between these two poles, a different judge shared the following comments:

If there was a functioning Law Commission, political will and funding, I am quite sure people would enthusiastically look again at some of our procedures. But we shrug our shoulders and say, well, we don’t have an Assembly. The rules are really hard to change. We have to do stuff by Practice Direction, and there is no way you are going to get an amendment. ... There is just an assumption that these things are not worth the candle at the moment.⁸

As our conversations with all of the judges unfolded, however, it became clear that even those who did not favour wholesale reform of the statutory framework, and those who were apathetic, were nonetheless keen to explore discrete changes in response to particular challenges. There were three statutory areas in particular that came up for discussion in most of our interviews: namely, the rules on leave to appeal; the scope of appeal rights, particularly in cases involving the judicial review of a criminal cause or matter; and the size of the bench, both as limited overall and as limited in particular cases. In the following sub-sections, we will consider the judges’ reflections on each of these areas in turn before summarising some miscellaneous reflections about the statutory framework thereafter.

8.2.1 The rules on leave to appeal

A reasonably strong majority of our interviewees was in favour of uniformly requiring leave to appeal to the Court of Appeal in civil cases, as it already is in criminal cases, though some were more certain about the need for this than others. From a practical point of view, one judge regarded the idea with some ambivalence given that the Court is generally able to process civil appeals quite quickly under present arrangements:

I think the question is whether in this jurisdiction you would be making more or less work for yourself. If you look at the ability to get a civil case in the Court of Appeal: you will generally be offered a slot within three [or] four working months, something in that order, to deal with the case. It might be reviewed once in the course of that if it was thought necessary. I can understand why it is absolutely critical in jurisdictions where they have got limited slots to deal with the cases that they have got. I do not think it is urgent here. I have no objection to it, but I do not think it is urgent.⁹

Similarly, another judge weighed up the considerations in these terms:

The jury really is out on this. … I think, first of all, it would mean lots more work for the puisne judges doing leave decisions. … Maybe that’s not a reason itself not to have it, but that would be a practical reality. Then the second thing is I think inevitably you would have to offer litigants a chance to review the application orally before the court in any event. Query whether you would really be saving very much in terms of time and resource by creating another layer. Yes, you might be able to knock out the totally hopeless reasonably quickly, but I am not sure whether it would be particularly effective if the threshold was just arguability. I suspect a lot of applications would be granted and therefore query whether it would make a lot of difference to the running of our courts. We have all seen cases that are just rubbish and we would say to ourselves: that should have really never got to the Court of Appeal. But it is still a relatively small number, I think. I wax and wane, in that I am not convinced either way at the minute.¹⁰

Likewise, we heard the practicality of the reform proposal framed and considered as follows:

One would have to work out what the mechanics would be. The critical question for the model would be whether a decision of a Court of Appeal judge or a panel of Court of Appeal judges refusing leave to appeal would be final or capable of being renewed, which is the English system. We would have to draw on their experience and their statistics in order to determine whether this might simply incur a greater investment of judicial resource and greater delays with no particular gain.¹¹

Other judges were ‘strongly of the view there should be some filter system’,¹² with the challenges presented by a rise in the presence of litigants in person being a frequently cited justification for it.¹³ While one judge expressed reservations about whether it was ‘a very good principled reason’ to introduce a leave stage simply in order ‘to deny personal litigants another bite of the cherry’,¹⁴ another did in fact articulate their support for the proposal in substantially principled terms:

I think there has to be some filter, and that is not just for the convenience of the court. That is to save public money, and I think to properly not give people the expectation that you can bring an appeal which is not formulated at all or is meaningless. That you just have a right to argue a case. … In other words, it is not coming from a place that is trying to restrict appeals. It is simply trying to streamline appeals.¹⁵

8.2.2 The scope of certain appeal rights

Two discrete issues arising from our conversations about the present scope of appeal rights are notable at this stage.

The first concerns the current rights of appeal in respect of judicial reviews involving a criminal cause or matter which, as we have explained elsewhere,¹⁶ must be decided by a Divisional Court at first instance and cannot be appealed by the applicant to the Court of Appeal thereafter – an appeal to the Supreme Court lies only at the instance of the defendant or prosecutor, assuming the restrictive test for permission to that Court is met. There was an essentially unanimous view among the judges whom we spoke to about this issue,¹⁷ in favour of reform, though we detected some divergences in opinion as regards the basis of their desire for change and the best model with which to replace the present rules. Several judges pointed to the difficulties they have experienced when called upon to interpret the phrase ‘criminal cause or matter’ as it appears in the Judicature (NI) Act 1978. Notwithstanding some ostensible clarification provided by the Supreme Court in Re McGuinness’s Application,¹⁸ our Court of Appeal judges maintain that ‘it still throws up interpretative issues which distract the Court and take a lot of time to resolve’.¹⁹ Indeed the time taken up by such interpretative issues was noted by several judges,²⁰ with one saying ‘you have nonsensical situations where two judges are sitting hearing a leave application just in case it’s a criminal cause of matter, which is a total waste of resources’.²¹ In addition, some judges stressed that ‘arguably, the point is that people lose a strong appellate right if they are captured by criminal cause or matter’.²² One elaborated on the serious nature of the problem in this way:

[It] has created this unfair appeal structure where in some cases litigants only have one bite of the cherry, whereas in other cases that are not particularly different you have got three, and that seems to me to be farcical. If, as we do, we treat the decisions of the PPS whether or not to prosecute, as criminal causes or matters … and therefore heard by a Divisional Court, you have a situation there where the PPS, if aggrieved, has a right at least to seek an appeal to the Supreme Court, but the family of the victim has no appeal right whatsoever, and that is just nonsensical.²³

When discussing the best model to replace the current rules, a range of ideas was suggested to us. One judge felt so strongly about the need to avoid unnecessary duplication that they proposed ‘there should be a kind of leapfrog right for every case’ which would involve identifying cases at first instance that are likely to require the attention of the Supreme Court and providing a direct appeal route to that Court in order to avoid the production of multiple judgments in several of the courts below.²⁴ Another said:

You could widen section 41²⁵ to allow an appeal from the Divisional Court by anybody to the Supreme Court, with the same hurdles of certification of a question. That is one way to solve it. The cleaner way is to do away with the distinction altogether, have everything heard by a High Court Judge sitting alone, first instance in judicial review, with the same appeal rights that everybody else has. That seems to me to be just a much more straightforward application of both principle and practice.²⁶

However, when asked to reflect on the second proposal outlined in the previous quotation, one of the judges warned that care should be taken to ‘place some filter on appeals to the Supreme Court in criminal law on a point of law because of the nature of criminal cases: the need for certainty’.²⁷

The second discrete issue arising from our conversations about the present scope of appeal rights concerns whether it should be possible to appeal cases all the way to the Supreme Court regardless of where they start out. One of the judges referred to the fact that in civil appeals by way of case stated from the county court to the Court of Appeal, for example, the Court of Appeal’s judgment is statutorily final unless a devolution issue has arisen, as in the conspicuous case of Lee v Ashers Baking Company Ltd.²⁸ The judge thought it was ‘wrong as a matter of principle’ that that case was only able to reach the Supreme Court ‘by the most circuitous of routes’ when it was widely regarded as ‘an important case’ and could not be appealed in the normal way simply because it had commenced in the county court.²⁹ Other judges had sympathy with this view,³⁰ but regarded the scenario as ‘one in a million’.³¹ Moreover, several interviewees felt it was important to emphasise that ‘there is nothing wrong in principle with the Northern Ireland Court of Appeal being the final Court of Appeal for certain types of case’.³²

8.2.3 The size of the bench

There are three notable issues to record from our conversations with the judges as regards the size of the Court of Appeal.

The first issue concerns a statutory limitation on the number of judges who can be designated to sit in an appeal. The maximum number of judges who can hear any particular matter arising in the Court of Appeal is capped at three.³³ One of the judges we spoke to indicated that in a difficult case it might be helpful if the Court was empowered to sit as a panel of five ‘in order to make clear where the law stands’.³⁴ They did not regard this as a ‘critical issue’, but thought it was worth sharing the idea for consideration, not least because the Court of Appeal in England and Wales does not face the same statutory constraint and has in fact sat as a panel of five in order to modify earlier lines of case law.³⁵ Likewise, the Supreme Court has published criteria governing when it will sit as a panel of more than five Justices and has done so in several high-profile cases.³⁶ The judge we spoke to suggested that ‘the four members of the Court of Appeal and the senior High Court judge’ could be enlisted to establish a particularly authoritative precedent, if the relevant statutory provision was amended to enable an enlarged court formation in appropriate cases.³⁷

The second notable issue as regards the size of the Court of Appeal concerns a statistical increase in the use of two-person panels over the course of the past several years.³⁸ When we asked our interviewees about the rationale for having two-person panels, we gleaned a number of helpful insights. One said:

Sometimes it is a convenience thing, and you would not see this in cases that … are obviously of great moment and need three … sometimes they are coming from the magistrates’ court; they are important issues, but they are not at the apex, so they would have twos quite a bit. The simple reason for it, I think, is to do with the subject matter. If the two disagree, you have to hear it again with another person, but that very rarely happens, because, as I said, these are not identified as the most difficult or challenging cases.³⁹

Another judge said:

The first question I think that raises is has that given rise to a difficulty? I am pretty certain that it resulted in a disagreement in only one case in the last number of years, and that appeal was then transferred to a new panel of three judges for a hearing afresh. Interestingly enough that particular problem has not arisen. The second question is a very interesting one and that is whether the public and the professions should be aware of the criteria for selecting a panel of two. I am not aware of any outcry in favour of that. I suppose on balance I would favour leaving the Chief Justice with a broad discretion in the matter of selection of panels and the number of panel members.⁴⁰

Nonetheless, the same judge informed us:

Much of the routine business of the Court of Appeal can be very efficiently and properly transacted by a panel that does not have to consist of three of the four senior judges, but approximately one third … is better dealt with by a panel of three from the four because of the complexity, importance, public perception, expectations of the parties and the public. I do believe that those are the criteria which should normally shape the composition of the panel.⁴¹

The risk of a stalemate in the event of disagreement between two judges, which would require a re-hearing with three,⁴² was also raised by other judges.⁴³ As one of them put it:

There is a difficulty because you do not want to say that you have decided the case in advance, but if you have only got two judges, you have got to have unanimity. You have three in case there is not. If you are going in with two, then you may have to reconvene with three if you find there is disagreement.⁴⁴

With these reasons in mind, a fair proportion of the judges we spoke to seemed to have ‘a strong preference’⁴⁵ for three-person panels. One said they simply ‘work better’,⁴⁶ while another said they were aware of ‘feedback’ from people who were ‘not happy’ about the use of two-person panels because ‘they felt the appeals were not being taken as seriously as they should’.⁴⁷ This led one of the judges to say that there should be ‘three person courts for virtually everything’.⁴⁸ There is therefore still room for debate regarding whether the statutory power of the Chief Justice to convene two-person panels should be altered.

Interestingly, when we asked our interviewees whether the recent increase in two-person panels had been necessitated by a shortage in judicial resources, we were told that this was not the case. This was because all of the judges we spoke to regarded their ‘High Court colleagues as able substitutes for the Court of Appeal’,⁴⁹ and because the Chief Justice is also able to draw on the support of retired Lords Justices if necessary.

As regards the use of puisne judges, all of our interviewees were quite strongly of the view that this was a positive practice. One judge described it as ‘essential’ because sitting on the Court of Appeal substantially enhances a High Court judge’s understanding of how their own decisions might be scrutinised on appeal.⁵⁰ Another judge emphasised that High Court judges play an important role in certain Court of Appeal cases primarily because they ‘bring expertise, particularly in the area of crime’.⁵¹ A different judge justified the practice predominantly by reference to the ‘training aspect’ of the opportunity it provides to puisne judges, and because it ‘was always going to improve collegiality’.⁵² By way of a small reservation, we were advised that while there was no harm in having one or even two puisne judges sitting on a Court of Appeal case, some care should be taken to avoid the possibility or perception of undue deference from one to the other, which could arise, for example, if the Lord or Lady Chief Justice was to sit on a two-person panel with a very junior High Court judge.⁵³ In contrast, another judge observed that ‘you might get an equally forceful puisne judge and others who are more consensus driven’, adding that ‘that is just the way lawyers divide up in any walk of life’.⁵⁴

As regards retired judges, we were informed that they have been drawn upon to populate Court of Appeal panels over recent years either because they were involved in particular cases prior to retirement that the Chief Justice asked them to finish,⁵⁵ or in order to ‘fill gaps’.⁵⁶ One of our interviewees elaborated in this way:

Their use has been driven by necessity, by and large. The necessity is on a very genuine basis. One, the lack of manpower, which really was the main reason for drawing on retired judges, but very occasionally, there were cases where the number of judges available for other reasons to form a panel was extremely small, i.e. judges who could not, for recusal-type reasons, form a panel. If it can be avoided, a Court of Appeal panel should not consist of retired judges only. … I think everybody would probably agree with that. Secondly, it is better for a Court of Appeal panel to have at least two serving judges. That is another principle which I would put forward.⁵⁷

As the start of that quotation illustrates, some judges acknowledged that there was a resourcing issue for at least some of the 25-year period focused on in this book. We understand that the issue stemmed from a shortfall in the High Court complement over a number of years, which reduced the pool of puisne judges from which the Court of Appeal could draw. Notwithstanding these events, quite a number of the judges we spoke to were doubtful when we suggested that perhaps a fourth Lord or Lady Justice of Appeal may be required.⁵⁸ The various mechanisms for dispatching the workload of the Court that we have adumbrated earlier – the ability of the Chief Justice to convene two-person panels together with the availability of puisne and retired judges – led several judges to doubt whether such an appointment was necessary.⁵⁹ However, two of the judges we spoke to suggested some persuasive reasons in favour of expanding the Court.⁶⁰ Significantly, it was put to us that ‘there certainly would be enough work in the appellate court’ to justify a fourth position.⁶¹ In addition, those in favour of expansion adverted to the fact that the number of judges on the High Court has expanded significantly over the years,⁶² whereas the number of Lords/Ladies Justices has expanded only once, in 1975, from two to three. This, we heard, might be viewed as having created a ‘slightly unbalanced’ distribution of senior judges:

You do not want to have a Court of Appeal that has no Lords Justices. You probably do not want to have it all that often [that] you have only got one. If you have two plus a puisne, that seems to me to be fine. Maybe that balance would be easier struck if you have the Chief and four LJs.⁶³

Lastly, as against the argument that to expand the Court of Appeal might reduce the frequency with which puisne judges would be offered the opportunity to gain experience at that level, one of our interviewees pointed out that while that was true, ‘there would be more natural progression for High Court judges to get to the Court of Appeal if there were four rather than three’,⁶⁴ in the sense that there would be more appellate court posts to apply for in the long run.

8.2.4 Other statutory suggestions

Before turning to the non-statutory issues explored in our conversations with the judges, there are two issues which would require statutory amendments that can be noted in relatively brief terms here. The first is that one of our interviewees suggested it might be helpful to confer an express power on the Court of Appeal to refer relevant parties to mediation or arbitration in appropriate cases.⁶⁵ In the public law context, for instance, our interviewee wondered ‘whether sometimes encouraging mediation as a resolution to some of these issues might produce a better outcome than simply going through the courts’.⁶⁶ The second issue was suggested to us by a different judge who indicated that the present Lady Chief Justice was planning to evaluate the possibility of broadcasting sentencing remarks made in the Court of Appeal by way of a ‘not-for-broadcast pilot’.⁶⁷ If the Chief Justice was minded to proceed with that initiative beyond the pilot, legislation would be needed to remove the statutory prohibition of any filming with a view to publication. This prompted our interviewee to reflect on the regrettable fact that while there was clearly ‘good will to do things’ within the Court of Appeal, ‘getting them copper fastened’ was stymied by the lack of a working Executive at the time of our interview.

8.3 The administrative functioning of the Court

Several of the issues that have been surveyed through the prism of statutory conservation and reform as outlined in the previous section could also have been analysed from a more administrative point of view. Having registered that caveat to our chosen structure for this chapter, we now wish to document some matters which have not been mentioned thus far because they involve conservation and reform ideas which are more clearly non-statutory in nature.

We have been told that there is an issue of non-compliance with the Court of Appeal Practice Direction and with case management direction orders more generally.⁶⁸ One judge summarised the associated administrative problems like this:

There is a daily problem in the Court of Appeal which arises out of a cultural difficulty prevailing in the legal profession, and that is repeated non-compliance with Practice Directions and specific case management directions. I would love everyone to get around the table to try to address that issue. We have done our best in the Court of Appeal, but it gives rise to a disproportionate investment of judicial resources. Judges should really be preparing for hearings, dealing with hearings, and writing judgments, that is what the circle should entail all the time. I do not object at all to case management. In fact, I am big in favour of it and I always have been, but we have to invest too much resource because of the default of the profession.⁶⁹

In practical terms, the same judge explained that this problem tended to manifest itself in two ways. The ‘main problem’ is non-compliance with time limits and a failure to provide ‘hearing bundles, authority bundles, electronic bundles, that sort of thing’ in accordance with the relevant guidelines.⁷⁰ The other problem is that ‘the content is of variable quality’.⁷¹ Particularising, our interviewee said:

The judge will be focusing … [inter alia] … on the formulation of the grounds of appeal. If there is any lack of coherence or repetition, or if there are simply far too many, then one of the main aims of case management from that point will be to achieve narrow, focused grounds. Coherence. In every case, that is a very desirable objective. In every case, it is achievable. It is the judge taking the lead, the judge being proactive, investment of judicial resource, and so forth. That is cultural also. One would hope that that culture can be improved.⁷²

This sentiment was echoed by another judge who agreed that the grounds of appeal initially articulated by counsel certainly tended to be ‘much too generalised’ at one point in time.⁷³ However, multiple judges acknowledged that there has been improvement in these areas over more recent times. One said:

We have got a pretty rigorous Practice Direction, which is not always adhered to, but most of the cases are reasonably well case managed, it seems to me. Some of them very well case managed, depending on who is in charge. I think, to be fair, when you get to the actual hearing most cases are pretty well defined and prepared. The points at issue are isolated and dealt with and that means, in my experience, the oral hearings are actually quite short because the parties have been put to their mettle on what points are actually of substance here and what needs to be pursued through case management.⁷⁴

Allied to this issue, we were informed of cultural challenges that the Court of Appeal has also encountered in the context of its efforts to advance a programme of digitalisation.⁷⁵ For instance, although the Lady Chief Justice has provided that ‘all authorities should be digital’, one of our interviewees estimated that this rule was observed by lawyers and by the judges themselves only about 50 per cent of the time in practice.⁷⁶

8.4 The role of the President

There is an overlap between the previous section and this one in so far as the President of the Court of Appeal – that is, the Lord or Lady Chief Justice – could be regarded as playing a largely administrative role. However, following our conversations with the judges we believe we can confirm that the managerial influence of the role tends to bleed into jurisprudential leadership in certain respects as well.

The role comes with at least three important powers that can substantively influence the work of the Court of Appeal. The first is the President’s responsibility for allocating cases to particular panels of judges. Revealingly, one of the judges we spoke to recalled the following interaction with a former President:

He actually said to me once, ‘It is a very important power of the Chief Justice to be able to pick the other members of the court’. I do not want to invent the next sentence or two after that, but it was not just about their abilities and expertise. He meant to get the right results.⁷⁷

As an illustration of the outworkings of this approach, the same judge told us that they had not been provided with ‘the opportunity to be in that many heavy cases, partly because of time and partly because … of this judge selection thing’.⁷⁸ A different judge shared similar reflections when they hypothesised that ‘if you are on a whole load of uninteresting cases, you might suspect that you have done something to annoy [the President]’.⁷⁹ At the same time, we were told that judicial workloads are ‘fairly divided’⁸⁰ and that the specialist expertise of particular judges appears to be the most commonly used criterion for allocations.⁸¹ Our sense was that most of the judges we spoke to felt the President is entitled to retain the broad discretion they currently have in respect of panel choices.

The second important decision-making power of the President relates to the designation of lead judgment writers. We learned from our interviews that the President of the Court ‘stars’ the name of one of the judges selected to sit on a case,⁸² which indicates that they will be writing the lead judgment:

What happens is that there is an asterisk put against your name and you know that you are the judgment writer. … You undoubtedly do look at the case differently if you are the judgment writer. It is up to you then to tap your colleagues, to find out what they think and get their views on any points, and then try and reach, through argument, an agreement as to what you think the right result should be.⁸³

While we understand that this has been the default approach for the last ten years or so,⁸⁴ we were also informed that the assignment of lead judgment writing work at such an early stage ‘is not set in stone’ and that the responsibility for lead judgment writing is occasionally re-allocated.⁸⁵ Several judges seemed reasonably content with this early assignment model, but we did receive representations from some who intimated that it was sub-optimal. The two downsides noted to us were, first, that early assignments ‘might discourage other members of the court from taking as close an interest in the case as they might otherwise’⁸⁶ and, second, that ‘there is too much focus on one judge and one judgment’.⁸⁷ Expanding on the second point, one interviewee explained that while assigning lead judgment writers early has not given rise to controversy, ‘it does discourage dissenting judgments’ in the sense that ‘a panel of three can come to an agreement among a majority of two and a third member who has differing views’ because ‘the third member is not all that likely to write a dissenting judgment’.⁸⁸ This was ‘not desirable’ because, as the judge put it, ‘dissenting judgments may be tomorrow’s law’.⁸⁹ Other judges also recognised that there is value in having a culture whereby dissents are not actively discouraged,⁹⁰ though there seems to be a consensus around the idea that the present Court of Appeal enjoys ‘a good collegiate atmosphere’ whereby individual members of the Court are able to argue amicably over the issues until a consensus is reached in most cases.⁹¹

The third notable power of the President concerns their influence as the presiding judge in cases in which they sit. We were interested to discover that, in addition to sitting on ‘high-profile’⁹² cases because of the importance of the issues at stake and the perceived ‘clout’ of issuing a judgment from the Chief Justice in those contexts,⁹³ there has evolved ‘an unspoken rule that the Chief Justice should take the lead, and be seen to take the lead, in the most important criminal appeals against conviction and appeals against sentence’.⁹⁴ It was explained to us that, while this practice ‘follows the English tradition whereby the Lord Chief Justice assumed responsibility for most of the big criminal appeals and the Master of the Rolls most major civil appeals’,⁹⁵ there is also a Northern Ireland-specific reason for the Chief Justice’s ‘particularly strong’⁹⁶ role in sentencing appeals. The reason is that in the absence of schematic Crown Court sentencing guidelines in Northern Ireland, if there is a point to be decided about ‘the policy of the courts on drugs’, for example, it is thought to be particularly important that that policy ‘should come from the Chief Justice’.⁹⁷

Interestingly, though perhaps unsurprisingly, we found that the judges we spoke to recognised different leadership styles among those who have held office as President of the Court of Appeal. For instance, whereas one President was described as ‘quite a consensus-driven individual’,⁹⁸ another was characterised as a ‘results-driven’ and ‘policy-minded’ office-holder.⁹⁹ We hope to explore these observations in greater depth at some point in the future, together with further research on the many more non-contentious matters for which the Court’s President is responsible, but let it suffice to note here that we have come to regard the role as a seriously ‘tough ticket’¹⁰⁰ simply by virtue of the multifarious volume of work involved.

8.5 Conclusion

This chapter has canvassed the extent to which our judicial interviewees would either conserve or reform various aspects of the way the Court of Appeal operates.

In the statutory realm, it has charted how some judges are keener than others on wholesale reform of the Court’s governing legislation. At a more itemised level, it has revealed that there is a strong degree of consensus around proposals to replace the rules in respect of judicial review appeals involving criminal causes or matters. There is less outright support for proposals to require leave to appeal in all civil cases and to expand the scope of appeal rights for cases that begin in inferior courts and tribunals, though, as with all the statutory proposals, there are interesting reasons and nuanced reservations underlying these generalised conclusions. Views are quite clearly mixed when it comes to the size of the Court of Appeal, both as limited in individual cases and as limited overall. Some judges see no problem with two-person panels, whereas others would prefer to see three-person panels used in practically every case. Likewise, there are judges who think there is now a business case that would justify appointing a fourth Lord or Lady Justice of Appeal, while some are more doubtful about whether such a step is necessary.

In the non-statutory realm, there is also a high degree of consensus around proposals to conserve and strengthen a strict approach to practitioners’ non-compliance with Practice Directions and case management direction orders. There seems to be agreement around the President’s powers to choose appeal panel members and to take the lead in writing certain categories of case, though there was a lesser degree of consensus as regards the President’s policy of assigning lead judgment writers very early in the administration of each case.

In both the statutory and non-statutory sections of the chapter, certain proposals were noted notwithstanding that only one or two judges discussed them with us and that they were recognised as relatively low priorities. This category included proposals to empower the Court to sit as a panel of five in appropriate cases, proposals to empower the Court to refer parties for arbitration or mediation, and proposals to enable the broadcasting of sentencing remarks.

As the last-mentioned category of proposals highlights so clearly, all of the judges we spoke to exhibited a propensity to balance idealism with pragmatism. This propensity was evident in the judges’ efforts to identify reform proposals according to different levels of priority. It was likewise evident in the ‘make do and mend’ approach that was adopted by several interviewees in respect of the Court’s governing legislation. We are sure that this same propensity will make it possible for the Court to settle whatever disagreements may exist or arise among its members by way of further conversation and debate. We hope that mapping the independently formed opinions of its judges, as we have attempted here, will usefully inform and advance those discussions.

1

See Chapter 1 for details of our methodology.

See Chapter 2.

See Chapters 4–5.

J3.

J5.

J7.

J1.

J2. There was no functioning Assembly when this interview took place, but it has since been restored.

J1.

J2.

J5.

J4.

J2; J3; J4; J5; J6.

J2.

J7.

See Chapter 5.

With the exception of J3, who said it was not something they had a strong view about.

18

[2020] UKSC 6, [2021] AC 392.

J7.

J2; J5; J6; J7.

J2.

J7; J2.

J2.

J6.

Judicature (NI) Act 1978.

26

J2.

27

J7.

28

J2; [2018] UKSC 49, [2019] 1 All ER 1. See Chapter 6.

29

J2.

30

J1; J7.

31

J1. J2, however, referred to the case of Brady v Northern Ireland Housing Executive [1990] NI 200 as an example of a case which could not be appealed beyond the Court of Appeal, meaning another case had to be ‘manufactured’ in order to get the relevant point of law before the House of Lords, namely, McGeown v Northern Ireland Housing Executive [1995] 1 AC 233. The question at issue was whether a person using a public right of way did so by right and could not therefore be the ‘visitor’ of the owner of the land for the purposes of the Occupiers’ Liability Act (NI) 1957.

32

J5; J7.

33

Judicature (NI) Act 1978, s 36.

34

J1.

35

J1. See, for example, R v F(S) [2011] EWCA Crim 1844, [2012] QB 703 (Lord Judge CJ, Hughes and Goldring LJJ, Ouseley and Dobbs JJ).

36

See ‘Panel numbers criteria’ on the UK Supreme Court website, available at www.supremecourt.uk/procedures/panel-numbers-criteria.html. Also see Robert Reed, ‘Collective Judging in the UK Supreme Court’ in Birke Häcker and Wolfgang Ernst (eds), Collective Judging in Comparative Perspective: Counting Votes and Weighing Opinions (Intersentia 2020) 27.

37

J1.

38

See Chapter 3 for details of our statistical analysis on this point.

J7.

J5.

J5.

Judicature (NI) Act 1978, s 36(3).