Judicial report calls for binding laws to make unruly behaviour in court a criminal contempt
Judges have questioned the adequacy of the Courts Service building safety policy to deal with potential threats from disruptive personal litigants in courts, including the possible use of Bibles and chairs as “projectiles”.
A report by a judges’ working group on challenges posed by increasing numbers of litigants in person (LIPs) also recommended that the Government consider introducing binding laws to make disruptive behaviour in court a form of criminal contempt.
There have been serious incidents where a judge’s safety was compromised and further such incidents “cannot be ruled out”, it said.
Among the more serious incidents was an assault on District Court judge Miriam Walsh during a family law case in 2015, which led to her being taken to hospital.
The superior courts have experienced disruption by LIPs motivated by far-right nationalism, anti-immigrant beliefs, extreme religious views and opposition to government policies, the report said.
The District and Circuit courts “routinely encounter” a significant number of LIPs who do not recognise the court and are there “to generate publicity for their agendas”.
A significant challenge for all courts, but particularly the District Courts, is the number of LIPs with mental health problems, the report added.
Just published on the Judicial Council’s website, the detailed document noted LIP numbers range from 15 per cent to 30 per cent, depending on court jurisdiction and subject matter.
It stressed the “fundamental right” of access to justice and the constitutional right to represent oneself in legal proceedings.
For various reasons, including costs of legal representation, litigants are not always represented, it said.
The lack of widely available and adequately funded legal aid was “by far the biggest contributing factor” to the increasing number of litigants in person.
Cases involving LIPs impact the administration of justice as they take “significantly more” court time, meaning significant additional legal costs for other parties.
After consulting with judges, the working group, comprising judges from the District Court, Circuit Court, High Court and Court of Appeal, made many recommendations to address the challenges. The recommendations are directed at bodies including the Courts Service, Judicial Council, court presidents and rules committees and the legislature.
The group supported any proposals to extend legal aid or assistance to potential litigants, and a power/discretion for judges to assign legal aid in exceptional circumstances, particularly in family law matters.
It recommended that more detailed information be provided to litigants in person to help them navigate the court system and the preparation of a bench book setting out appropriate principles for judges dealing with LIPs.
The disruption by some litigants in person, “intentional and unintentional”, of court hearings is often driven by factors such as mental health issues, religious and/or political beliefs, desire for publicity and a lack of recognition of judicial authority, the report noted.
It questioned whether the Courts Service’s “theoretical and aspirational” building safety policy can adequately deal with safety threats from disruptive litigants in person.
The policy identified violence and aggression in court as a “low risk” hazard and proposed controls, including on-site security checks, panic buttons, staff training and the “removal of projectiles”.
While likely “projectiles” such as Bibles and chairs are in common use, the policy does not identify what type of projectiles will be removed or when, the report said. Other possible projectiles included litigants’ laptops and water bottles.
The policy failed to state what the current on-site security for each court venue consists of, including whether there are working panic buttons in each venue, the report noted.
A Garda should be available to deal “immediately” with disruptive behaviour, it recommended.
The gradual phasing out of court ushers, known as tip staff, imposed an “unfair and inappropriate” burden on judges and registrars in respect of courtroom control, and service officers should be appointed to assist courtroom management in appropriate courts. External training for judges in dealing with violent and abusive behaviour was also recommended.
Noting there is no legislation regulating “repetitive” litigation, the report recommended measures to address that.
It opposed permitting “McKenzie friends”, people without legal qualifications who accompany litigants in person to court to help them with their case, to assist them in court for remuneration. Some McKenzie friends have drafted legal documents in breach of the Solicitors Act, it noted.
