Establishment of Superior Courts

The Courts of Justice Act, 1924 reestablished the courts under the Irish Free State Constitution. Most of the courts and court offices as then established, have continued to the present day. The Courts of Justice Acts, as amended from time to time, regulate the courts, court officers and court business. See generally the sections on the courts of justice legislation.

The Supreme Court found in the 1950s that the 1937 Constitution contemplated the High Court, Supreme Court and courts of local and limited jurisdiction (namely,  the Circuit Court and District) contemplated that courts would be reestablished. Accordingly, legislation was passed in 1961 reestablishing the courts, as the courts contemplated under the Constitution, reestablishing the High Court as the Court of First Instance, the Courts (Establishment and Constitution) Act, 1961.

The Courts (Supplemental Provisions) Act, 1961 as contemplated by the Constitution provides for qualification, appointment of judges, remuneration, pension, retirement, office etc. They also make equivalent provisions in respect of judges of the Circuit Court and the District Court.

LOwer Courts

The High Court is established by the Constitution as having unlimited jurisdiction which cannot be abridged by legislation. The District Court and Circuit Court’s jurisdiction is dependent on legislation and accordingly may be limited. There are financial limits in respect of most of the major types of civil action in the District Court and Circuit Court respectively.

The other courts must be limited and local. This in effect requires that there be a connection between cases on the courts concerned. This accords with the organisation of the District Court and Circuit Court’s jurisdiction in each case has a connection with the relevant district or circuit.

ircuit Court judges and District Court judges are appointed by the President in much the same way as High Court judges. The make an equivalent declaration to that provided in the Constitution for High and Supreme Court judges (Article 34.5).

Constittutional Challenge

No question shall be raised whether in pleading, argument or otherwise in any court other than in the High Court or Supreme Court, in relation to the constitutionality of the law. The Circuit Court and District Court are bound, at least by post-1937 legislation, which is presumed to be compatible with Constitution until established as invalid in accordance with the constitutional provisions in respect of judicial review.

It appears that Circuit Court and District Court may not question pre-1937 legislation or rules of common law on the grounds of constitutionality. This has been held to prevent a reference as to constitutionality on foot of a case stated procedure. A challenge to post-1937 legislation must be brought by way of constitutional judicial review proceedings in the High Court.

Judges in the lower courts may adjourn cases if a question is pending as to the constitutionality of the relevant statute in High Court proceedings. It is not obliged to adjourn cases, including prosecutions where the case is pending.

Constitutional fair procedures principles are a part of the fundamental law of the State and can and  should be applied by the District and Circuit Court in the application of law.

The High Court

The Constitution establishes the High Court as the court of first instance, with full original jurisdiction in and power to determine all matters in question whether of law or fact, civil or criminal. Accordingly, notwithstanding the provisions as to jurisdiction in legislation, this does not limit its inherent constitutionally conferred  jurisdiction.

The ostensibly full jurisdiction is to be read subject to scheme of the Constitution which itself contemplates courts of local and limited jurisdiction. In many cases, legislation  confers  both in civil and criminal matters, exclusive jurisdiction on the lower courts. Courts have accepted that courts may confer exclusive jurisdiction on lower courts such as on District Court in respect of certain categories of matters and offences, provided that the High Court retains supervisory jurisdiction. In practice, a cost penalty arises in relation to, if a person proceeds in the High Court where he could have proceeded in a lower court.

The same principle applies to civil and criminal proceedings.  Provided the High Court is capable of reviewing the lower court’s decisions, the Constitution is satisfied. This includes the possibility of judicial review by way of certiorari, prohibition, mandamus, declaration or injunction. There is a direct appeal in the case of Circuit Court and the judicial review remedies are involved and available in respect of some courts of summary jurisdiction, including in particular the District Court.

The High Court has jurisdiction under Article 34.3.1 in respect of ttje constitutionality of post-1937 legislation. In the case of pre-1937 legislation, authority derives from Article 34.3.1 and common law.

The Court of Criminal Appeal was established by the Court of Justice Acts, without being specifically referred to in the Constitution. A 2013 amendmentsto the Constitution provides specifically for a new Court of Appeal, which embraces both a civil court of appeal and the court of criminal appeal in a single new court. Prior to this amendment, the Supreme Court had held that the Constitution allows the Oireachtas to provide for a court of appeal other than the High Court or Supreme Court.

The Court of Appeal

The Court of Appeal shall  save as otherwise provided by this Article, and  with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

No law shall be enacted excepting from the appellate jurisdiction of the Court of Appeal cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.

THe Suprem Court

The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that  the decision involves a matter of general public importance, or  in the interests of justice it is necessary that there be an appeal to the Supreme Court.

The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:

  • i the decision involves a matter of general public importance;
  • ii the interests of justice.

It has original jurisdiction on reference by the President, under Article 26 of the Constitution and in a handful of other more limited circumstances. The appellate or appeal jurisdiction of the Supreme Court, reflected in the Constitution is acknowledged in the Courts (Supplemental Provisions) Act, 1961. The courts have held that additional jurisdiction may be granted by Acts of the Oireachtas.


At one time, there was a constitutional right of appeal from the decision of the High Court to the Supreme Court. It covered all decisions of the High Court. This was interpreted widely. It was even  decided that an acquittal might be appealed from a direction of a High Court judge (Central Criminal Court) to the Supreme Court.It appears that a decision of the High Court may in principle be appealed even if it is an interlocutory or in relation to an ancillary decision or matters such as costs.

Exceptions to the right of appeal may be defined by law/legislation. Sometimes appeals are to be on a point of law or sometimes the legislation provides that appeals are to be on a point of law. Sometimes the leave of the High Court is required.

Some  legislation in areas where it is feared that there may be a prospect of long delays such as compulsory purchase, immigration and planning, may be appealed only where it is certified that a point of exceptional public importance arises and that it is desirable in the public interest that an appeal should be taken. These restrictions have been upheld by the courts. They  also apply to extradition and the European arrest warrant.

It appears that restrictions on the right of appeal must be contained in post-1937 legislation only, in order to be consistent with the constitutional scheme.

Legislation which limits the right or scope of appeal must be very clearly expressed. Accordingly, although an appeal may require a certificate from the High Court, the Supreme Court will be presumptively free to deal with the matter on any grounds available.

A right of appeal to the Supreme Court does not apply where there is a right of reference to the European Court of Justice now the Court of Justice of the European Union under the European Union law. This is necessitated by the membership of European Union and treaty obligations.

The decision of the High Court is final and conclusive in the particular matter. See generally the principle of res judicata. There are limited exceptions as to when judgments may be set aside.

The Judiciary

The provisions on appointment of judges are provided under the courts of justice legislation. It limits the number of High Court judges. Accordingly, an increase in the size of the High Court bench requires amendment of the Courts of Justice Act.

A judge may not be removed from office except for stated misbehaviour or incapacity and then only on resolution passed by Dáil Éireann and Seanad Éireann for his removal.

The constitutional protection of the provision of judges is one of the longest standing basic features of the separation of powers and the independence of the judiciary.

The provisions for removal of a judge are provided for in the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2003, Part 3. It provides for fair procedures. This includes the appointment of a subcommittee by the Houses. There is provision for a report of the Houses, provision for witnesses to be compelled, privileges and immunity.

Several of the questions arose in the notorious case of Curtin v Dáil Éireann, which involved a Circuit Court judge, who had been acquitted of possessing child pornography. It was found that the seizure of evidence was unlawful and the judge was acquitted. Motions for removal of the judge were proposed by both Houses and were adjourned. A sSubcommittee was established to examine the legislation and committees sought to obtain access to the computer. Ultimately, the judge resigned. However, the proceedings continued.

The Supreme Court held that the Constitution contemplated that the Oireachtas Committee was entitled to organise evidence in a manageable form, point out issues on the evidence, act as a guide to the members when debating the resolution and to the applicant and his advisors in rebutting his defence. The courts would  review an irrational and irresponsible use of the power where it was exercised maliciously or in bad faith. The courts were required to  guarantee fair procedures and preserve a constitutional balance and protect the judge from an abuse of power.

Independence of Judges

The Constitution provides that no judge shall hold any other office or position of emolument. The general principle is that the remuneration of judges cannot be reduced during continuance in office. A 2011 constitutional amendment allowed judicial remuneration to be reduced in line with comparable reductions in public service. It also confirmed that the remuneration of the judges is subject to the imposition of tax, levies and other charges imposed by law on persons generally or persons belonging to a particular class.

It further confirmed that where a reduction is made to remuneration belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision shall also be made by the law to make proportionate reduction in the remuneration of judges.

It has been held by the Supreme Court that there is a duty on the government to keep judges’ remuneration under review so that they do not fall out in line with historical and other remuneration in the economy, such as to jeopardise judicial independence. Judge’s pension rights must be rational. It must not be irrational and inequitable.

The independence of the judges is an essential cornerstone of the rule of law. The Constitution provides that all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law. They are independent of the government and the executive, the Oireachtas and parties to litigation.

Generally, a judge does not join in proceedings, where his decision is challenged. Costs will not be awarded against a judge where he is a party. Where there are allegations of bad faith or impropriety, it appears he must be joined in the proceedings in order to make representations if he choose to do so and defend himself.

Judges may be conferred with other functions. For example, judges have been appointed head to Referendum Commission, Standards in Public Office Commission, Constituency Commissions and to chairs of numerous tribunals and commissions of inquiries. In some instances, the judges are members of committees which have a role in various functions. These are typicall those intimately associated with the administration of law.


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