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Courts confusion

05 Jun 2020 / Courts Print

Confusion over ‘two-hour sittings’ ends

Confusion reigned for two days while the judiciary clarified new health advice given to the Oireachtas.

On the morning of 20 May, the presidents of the five courts said in a statement that they had become aware of health advice given the previous evening to the Houses of the Oireachtas, to the effect that no two people should spend a cumulative period of more than two hours in the same room in any 24-hour period.

The Courts Service was seeking additional advice in relation to this.

“Pending receipt of such additional advices, the court presidents have determined that all court sittings will last for no more than two hours in each day,” the statement said.

The Director General of the Law Society, Ken Murphy, was very quickly contacted by the media for his reaction to this development.

He expressed himself “very surprised and taken aback” by this news.

He believed there would be shock in legal circles that the already extremely limited sittings of the courts, since the COVID-19 emergency had struck, would be further dramatically reduced as a result.

‘Bizarre’

Later that afternoon, in various national media outlets, Murphy described the development as “bizarre and very frustrating”.

“The question has to be asked if there has been some miscommunication and overreaction here.

The Dáil has frequently sat for periods of well in excess of two hours during the crisis. Furthermore, businesses and workplaces providing essential services have been operating for periods well in excess of two hours for the duration of the restrictions.”

Speaking on RTÉ radio’s Today with Sarah McInerney on 21 May, he said that the new guidance represented a “strange piece of novel and dramatic advice”.

“When we got this news out of the blue, there was dismay, because valiant efforts are being made by the Courts Service to reopen the courts, consistent with the public-health guidelines.

“It was bordering on bizarre that we were being given this advice for the first time more than two months into the COVID-19 crisis, where the public-health advice up until now had been admirably clear.”

Questioned by McInerney on the impact that two-hour-a-day sittings woiuld have, Murphy said that efforts to use technology and hold remote hearings were to be applauded, but were not a substitute for court sittings.

“We need to get the courts open in the interests of citizens, businesses and the economy, and the country generally,” he said.

On the same programme, Micheál P O’Higgins (Chairman of the Council of the Bar of Ireland) said that a two-hour rule would represent a “major setback” to the reopening of the courts.

Detailed advice

By Thursday evening, the Courts Service had received “detailed advice” on the length of sittings, to allow hearings, free of any two-hour limitation period, to resume from Friday onwards.

Angela Denning, Courts Service CEO, confirmed that Prof Martin Cormican (Health Protection Surveillance Centre) had clarified that the public-health advice remained unchanged and that there was no rule that people should spend less than two hours in the same room as others.

Therefore, from an infection-control perspective, there was no need to limit court sessions to two hours.

However, the consequence of sessions lasting for longer than two hours would be that, if someone tested positive, all persons present with them in the courtroom would be considered a potential contact.

Denning said that the Courts Service was assessing how ‘safe hearings’ could be held and would keep a record of every individual present in court for more than two hours, in the event that this information would be needed for contact tracing.

Judicial letters

In their letters published on Thursday, the chief justice and court presidents said that they regretted any inconvenience caused by the confusion over the health advice.

The letters contained information about additional safety measures for judges, staff, and court users.

The Law Society and Bar Council were advised of any changes that could affect their members.

The judges explained the context for the new arrangements, saying that the courts were unlike many enclosed workplaces, in that the public had access to courtrooms without ordinarily being identified, and frequently spent a significant portion of a sitting day at hearings.

Normally, there would be no record of who was in attendance and for how long. From now on, however, there would be a procedure for recording the identity and contact details of all those who attended court, they said.

The Courts Service said it was taking advice to ensure that any such details would be treated in accordance with privacy rules – and those details would be destroyed immediately upon the expiry of any relevant period.

“Those who are unwilling to give such details cannot be admitted to the courtroom,” the judges warned.

“However, this will not absolve any person who has a legal obligation to be present from fulfilling that obligation, unless released by the court.”  

Mark McDermott
Mark McDermott is the Editor of the Law Society Gazette