Maintaining Access to Justice in the Pandemic
In our latest blog, Oonagh Buckley, Deputy Secretary General of the Department of Justice, assesses the implications of COVID-19 on accessing justice, and how the Department of Justice has responded and evolved during the pandemic.
Oonagh Buckley was appointed as the Deputy Secretary General of the Department of Justice on 1 November 2018. Oonagh’s previous position prior to taking up her new role was Director General of the Workplace Relations Commission. Oonagh had previously worked in the Department of Public Expenditure and Reform, as well as in the Department of the Environment and Department of Foreign Affairs. She holds a BCL; a LLM in Comparative European Law; a MA in European Studies; and was called to the Bar in 1996. In 2018 she completed an MSc in Business from UCD Smurfit School of Business and in 2017 she was appointed an adjunct Professor in Law at UCC.
In meeting the challenge of trying to continue to deliver justice in Ireland during the COVID-19 pandemic, the Justice sector as a whole has evolved, from the reactive responses of the first few weeks, which meant only emergency justice was available, to the level of today, with juries being empanelled to run trials.
Ireland’s initial experience within the justice sector – of being completely unprepared for a pandemic - was not at all unusual. Many countries have court processes that are almost entirely paper-based, based on close and regular contact between people, and on large numbers congregating in or around court buildings. Ireland’s experience therefore – in having to rapidly evolve to more digitally-enabled arrangements - was far from unique.
When COVID-19 first arrived, the Department of Justice established a series of cross-government structures to help all agencies in the sector (the Department has 24 agencies, including An Garda Síochána, the Prison Service, the Probation Service and the Courts Service) to address the significant challenges brought about by the pandemic.
We quickly established a cross-functional COVID-19 response team comprising senior officials from within the Department and from the key agencies. These structures ensure that they can work closely together to deliver solutions. This also allowed us to feed actions and activities happening in justice agencies into the central coordination units managed by the Department of the Taoiseach, and likewise feed information and instructions (say on personnel issues) on how to act down to the agencies. It also ensured that, after a few snap and surprise announcements on the closure of courts driven by local concerns, there were no unanticipated developments after the first few weeks.
In those initial weeks, those groups met very frequently, even daily. For the first six weeks of the first lockdown I had an internal or external COVID-19 response meeting every single day, often many of them. Sunday blurred into every other working day. Subsequently, as matters stabilised, we began to meet weekly and now fortnightly.
We were clear from the beginning that the courts had to remain open for at least the most urgent work. Functioning courts are a critical part of the State architecture. However, the through-put of human beings through the buildings had to be reduced as much as possible.
The courts kept hearing urgent cases not involving witnesses. No new juries were empanelled, although a small number of jury trials that had started, including a capital murder trial, continued to their conclusion. Urgent applications for bail and extradition, habeas corpus, wardship, injunctions and urgent applications for judicial review, urgent family law cases for protection or interim barring orders or urgent matters of childcare law etc. continued to be heard throughout the lockdown.
A huge swathe of court-related legal work just stopped, and the legal professions suffered a very large drop in income consequently. To give them at least partial support, the Department made arrangements to pay criminal legal aid brief fees to solicitors and the full fee for the first day of appearance in court to counsel in respect of all trials and hearings which had been adjourned because of COVID-19. We also saw a large increase in legal aid claims arriving from solicitors’ firms, presumably maximising available income sources.
We also knew from the countries that had experienced a lockdown ahead of us, that one of the side effects was a surge in domestic abuse, and unfortunately, our statistics have shown this – with police reports of an 18% increase in call-outs. In March and April, the Department developed an inter-agency plan to address the heightened threat of domestic abuse at this time with additional funding provided to community and voluntary groups in the sector and An Garda Síochána establishing a proactive targeted policing initiative for domestic abuse victims. Under Operation Faoiseamh, the guards make contact with previous victims of domestic violence to provide reassurance, support and to offer the assistance of local and specialised resources and a renewed focus on the enforcement of court orders and the prosecution of offenders. A public awareness campaign ‘Still Here’ was developed, with TV and radio ads that let victims know the services are still available to them at this time.
Another response was the widespread and immediate cooperation between key agencies to use technology to reduce the footfall and need for movements of people into court buildings. Giant steps were taken in terms of the use of technology over those first few weeks. A key challenge was the absence of necessary legislation or any way to pass legislation with a care-taker government in place. The judiciary stepped in by issuing innovative practice instructions to underpin the use of these measures in the interim. For example, we went from a small number of prisoners appearing for preliminary matters by video-link to the vast majority of appearances from prisons for all people currently in custody being by video-link. Consider the numbers of movements of people that eliminates. It is such an efficient system that we are unlikely to go back to the old routine. The courts, particularly the higher appellate courts, have adapted very successfully to the new style of remote hearing and are working at the same or higher levels of hearings as before the pandemic. There are greater challenges at the level of District and Circuit courts with their high numbers of cases. Even their practices have evolved so that fewer people are required to attend court – with witnesses enabled to give evidence from their own homes, family hearing times being staggered, and so on.
After the initial phase, our thoughts turned to the measures that would be needed for the justice sector to resume a broader range of work in a way that maintains the safety of participants while allowing criminal trials to continue and other legal problems, particularly in civil and family matters, to be determined. We also wanted to maintain momentum for technological change. To be ready for when the government formation talks would conclude and alongside the judiciary, courts service and other agencies, we started to work on the proposals that were subsequently included in July’s Criminal and Civil Miscellaneous Provisions Act 2020, one of the first Acts passed by the new Dáil. The Act included the most urgent provisions necessary to ensure the courts could keep operating in the context of the pandemic. We have secured the resources for a major investment in technology for the courts that are working to an ambitious digitalisation strategy.
We know that there will be a need for more as we move through the waves of this pandemic. We are planning for further legislation to support the work of the courts for 2021, along with a series of long-term reforms in the civil, family and criminal courts. We are working alongside the Courts Service and the judiciary to make sure the necessary flexibility is there so that citizens can access justice throughout this time. If you want to know more about the future changes we are planning, check out the website of the Department of Justice.
 ‘Operation Faoiseamh (Phase 3) – An Garda Síochána Continues to Support Victims of Domestic Abuse’ (Garda Síochána 28 October 2020) <https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/news-media/operation-faoiseamh-phase-3-–-an-garda-siochana-continues-to-support-victims-of-domestic-abuse.html> accessed 11 March 2021.
 ‘Operation Faoiseamh - Domestic Abuse 9th June 2020’ (An Garda Síochána) <https://www.garda.ie/en/about-us/our-departments/office-of-corporate-communications/press-releases/2020/june/operation%20faoiseamh%20-%20domestic%20abuse%209th%20june%202020.html> accessed 14 March 2021.
 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.