The recent High Court decision in Ó Cadhla v The Minister for Justice and Equality IEHC 503 confirms that that the State has a constitutional duty to make “reasonable efforts” to assign a bilingual judge in a District Court criminal trial where the accused wishes to present his side of the case in the Irish language.
Mr Ó Cadhla (the Applicant) was charged with criminal damage and requested that his hearing be conducted through the Irish language and for a judge who understood Irish to accommodate this.
This request was refused by District Court Judge, Mr Justice Kelleher, who found that the extent of the Applicant’s right was to present his own evidence in Irish and to cross-examine witnesses through Irish but not to a hearing in Irish or to a judge that understood Irish (the Refusal).
The Applicant subsequently initiated judicial review proceedings of the Refusal seeking, in particular, a declaration that there is a constitutional duty on the State and a duty under Section 8 of the Official Languages Act 2003 to assign a judge with Irish to his hearing.
In particular, the Applicant contended that having the case conducted through English was a disadvantage for him as his evidence and submissions would be heard by a judge who did not understand them in their original form and would hear them solely through the prism of a translation. He submitted that this disadvantage constituted unequal treatment which is in conflict with the guarantees contained in Article 8 of the Constitution (i.e. that the Irish language is the national and first official language of the State).
The State argued that the Official Languages Act 2003 did not confer a legislative right to a bilingual judge and accordingly, there was no constitutional right or duty for the judge to be bilingual.
The Right to a Bilingual Decision-Maker
Ms Justice Ní Raifeartaigh considered the decision in Ó Maicín v Éire 4 IR 477 in which the Supreme Court found that the accused had no right to a bilingual jury. In that case, the basis for the majority’s decision was that any right the accused might have under Article 8 to an Irish-speaking decision-maker had to be balanced against the constitutional imperative of a representative jury, and it concluded that this representative aspect could not be achieved by having an Irish-speaking jury.
Ms Justice Ní Raifeartaigh in analysing this decision emphasised that the only reason the applicant was not entitled to have an Irish-speaking jury in Ó Maicín was because it was impossible to achieve this result while simultaneously honouring the constitutional requirement that a jury be representative.
By contrast, however, in the current context the competing constitutional imperative was absent in circumstances where all that was sought was a single professional decision-maker with Irish. Accordingly, she concluded that there must be some duty for the State to make “at least some effort” to assign a bilingual judge.
Lost in Translation
The State’s opposition to the application was also predicated on the assumption that any disadvantage could be remedied by the process of interpretation/translation, however, Ms Justice Ní Raifeartaigh emphasised that anyone who speaks more than one language would be acutely live to the difference between understanding a language directly and receiving a version of what the person has said through a translation (which can be flawed or defective).
Conclusion and practical consequences
Ms Justice Ní Raifeartaigh’s decision to impose on the State a duty to make reasonable efforts to assign a bilingual judge follows a trend in several cases which have emphatically upheld the need for a practical implementation of the status of the Irish language as the first official language and to take Article 8 of the Constitution at its word.
Ms Justice Ní Raifeartaigh noted that the duty or obligation to assign a bilingual judge was not onerous as it would simply require the taking of reasonable or practical steps (i.e. picking up the phone or sending an email to see if a bilingual judge is available). Having due regard, however, to the “steadily decreasing” number of judges capable of conducting a case through Irish, she believed that the practical effect of her decision would be very limited.