The Position to Date
Article 8 of the Constitution provides that the Irish language is the first official language of the State. It has long been accepted that, flowing from this, people have a constitutional right to present or defend their case before the Courts in Irish. The usual practice is that where interpretation issues arise, the services of a translator/interpreter are utilised.
However, it has not been accepted that there is an entitlement to have an Irish-speaking judge assigned to hear such cases. Until recently, it seemed the entitlement was limited to a right to present one’s own case in Irish, with the assistance of a translator/interpreter where necessary.
The adequacy of translation in the defence of criminal proceedings, in light of Article 8, was recently revisited in the High Court, in Judicial Review proceedings brought by former County Councillor Diarmaid Ó Cadhla.
In November 2017, Mr Ó Cadhla was charged with criminal damage for allegedly blacking out street names in County Cork referring to Queen Victoria. Mr Ó Cadhla, being a native of the Ring Gaeltacht, requested that his trial be conducted in Irish and that he be provided with a bilingual judge who understood both English and Irish. Mr Ó Cadhla indicated that Irish is his native language and that he conducts his business through Irish as much as possible.
The District Court decided that Mr Ó Cadhla could present his own evidence in Irish but that he did not have an entitlement to be assigned a bilingual judge, on the basis that a translator could be appointed. Mr Ó Cadhla judicially reviewed this decision, arguing that his defence would be compromised “through the prism of translation”. Mr Ó Cadhla also argued that under Article 8, he had a right to be provided with an Irish speaking judge.
The State opposed this challenge, submitting that it was obvious from the Official Languages Act 2003 that the Oireachtas considered that any “disadvantage” caused to a person who wished to conduct their side of a case in Irish, could be cured by the process of interpretation/ translation.
Decision of Ms Justice Ní Raifeartaigh
Ms Justice Ní Raifeartaigh considered the central question in this case, which was whether there is a constitutional duty on the State under Article 8 to provide a bilingual, (Irish-English) Judge to hear a case where an accused wants to present their side of the case in Irish.
The Judge held that:
- The case was not concerned with any due process issues, but rather with language rights and the right to use Irish, regardless of whether the accused person understands English.
- While legislation must be interpreted in accordance with the Constitution, the reverse is not true and it was not appropriate to interpret the Constitution by reference to the Official Languages Act 2003.
- The Official Languages Act 2003 does not confer any legislative right regarding the assignment of a bilingual judge, and therefore the issue arises firmly in terms of constitutional right or duty.
- To refuse the application for a bilingual District Court Judge simply because the applicant speaks English was contrary to the whole spirit of Article 8.
- There must be a duty on the State to make “at least some effort to assign a bilingual judge” and this duty is “ no lower than a duty to assign a bilingual judge so far as is practicable or to make reasonable efforts to assign a bilingual judge where requested…”.
Ms Justice Ní Raifeartaigh granted the order of certiorari sought. Ms Justice Ní Raifeartaigh reserved her position in respect of the declaration sought, until further submissions are made. However, the Judge indicated that she was inclined to declare that the State had a duty to make reasonable efforts to assign a bilingual District Judge for the criminal trial of Mr Ó Cadhla.
In giving judgment in this case, Ms Justice Ní Raifeartaigh provided useful commentary on the three main Supreme Court decisions on this subject, as outlined below
- Ó Monacháin v An Taoiseach – there is no right to compel a District Court Judge to hear the whole of a case in Irish if there is a witness etc. in the case who does not understand Irish, as to do so would be contrary to natural justice.
- Ó Maicín v Éire – there is no entitlement to an Irish-speaking jury as providing this would not ensure the constitutional requirement of a representative jury.
- Ó Maicín v Éire – Article 8 requires something more than translation and having an Irish-speaking decision maker in a criminal case should only be displaced if necessary.
This decision reinforces the suggestion that the Constitution envisages a privileged position for the Irish language. The Supreme Court has repeatedly reaffirmed the necessity of a practical implementation of the Irish language in line with Article 8 before the Courts and this case serves to highlight the continuing importance of this.
It is important to note that Ms Justice Ní Raifeartaigh highlighted the specific facts of this case and the relevance of those facts to her decision. Nonetheless, this decision provides clarification on the significance of the Irish language in our legal system today.