Criticism, fiction and other writing
A few weeks ago, I picked up a secondhand paperback copy of Ruadhán Mac Cormaic’s The Supreme Court (2016), a history of Ireland’s highest court. I enjoyed the book more than any other work of nonfiction I’ve read in the last few years, but it also got me hot under the collar in places. It reminded me of constitutional and historical details I’d once been very familiar with, and filled in the background of some more recent events that I’d been less familiar with, as they had occurred while I was living outside Ireland. My overall impression was that Irish constitutional development has taken several wrong turnings since (and arguably including) Crotty v An Taoiseach [1987] IESC 4. I might at some point write a longer post setting out my argument for that point of view. For now, though, I’d like to look at one particular episode which doesn’t have any direct constitutional implications.
In 1996, a young architect named Philip Sheedy crashed his new sports car into another vehicle, killing the driver of that vehicle, Anne Ryan, and seriously injuring her husband and children. He pleaded guilty in the Circuit Court to dangerous driving causing death and was sentenced to four years’ imprisonment. There was initially supposed to be a review date after 2 years, in October 1999, but the Circuit Court judge removed the review date on Sheedy’s own application.
In October 1998, Hugh O’Flaherty, a judge of the Supreme Court, spoke to the Dublin County Registrar and asked him about getting Sheedy’s case relisted before the Circuit Court. The County Registrar arranged to have the case listed and it came before Judge Cyril Kelly, who suspended the remainder of Sheedy’s sentence. Sheedy was immediately released. Neither the Director of Public Prosecutions nor the Chief State Solicitor’s office had been notified of the relisting and were not represented. Cyril Kelly didn’t hear any argument from the prosecution before making his order, which he said was based on Sheedy’s deteriorating mental condition. However, there was no new evidence, such as a psychological report, before the court. The only reports on the court file were there since the original hearing.
The Chief Justice, Liam Hamilton, carried out an investigation into the circumstances of Sheedy’s release and produced a report which was severely critical of the two judges, Hugh O’Flaherty of the Supreme Court and Cyril Kelly, who had since been promoted to the High Court from the Circuit Court. One thing I learned from Mac Cormaic’s book is that Hamilton’s initial report was toughened up under pressure from his Supreme Court colleagues. Two judges, including Donal Barrington, threatened to resign “unless the conclusions were hardened” (Mac Cormaic, p. 322).
The report in its final form said:
I also conclude that Mr Justice O’Flaherty’s intervention was inappropriate and unwise, that it left his motives and action open to misinterpretation and that it was therefore damaging to the administration of justice. (Mac Cormaic, p. 323, quoting “Report of the Chief Justice into … the Early Release … of Philip Sheedy”, 14 April 1999)
The Chief Justice’s criticism of Cyril Kelly are considerably harsher. In the first place, it was wrong of Kelly to review the sentence imposed by a different Circuit Court judge.
I conclude moreover that, having entered on the review, he failed to conduct the case in a manner befitting a judge. In these circumstances, I conclude that Judge Kelly’s handling of this matter compromised the administration of justice. (Mac Cormaic, p. 323)
Hamilton is particularly critical of Kelly’s failure to hear submissions from the prosecution and purporting to reach a conclusion as to Sheedy’s mental condition “at the moment” without any current psychological report.
The government wrote to both judges, threatening impeachment if they didn’t resign. It was obvious that Cyril Kelly would have to go, but O’Flaherty, while expressing “‘deep regret’ for his ‘inappropriate and unwise action’” (Mac Cormaic, p. 324) clearly didn’t feel that he had done anything sufficiently wrong to justify the ending of his career. O’Flaherty had been highly regarded as a lawyer and a judge. He was one of the few Supreme Court judges to have been appointed directly from the bar, without having to serve his time in the High Court first. “In 1992, O’Flaherty’s star was on the rise. Everyone knew he was a future Chief Justice” (Mac Cormaic, p. 290). In the end, both judges resigned, as did the County Registrar who had relisted the Sheedy case.
It seems to me that there’s a gulf between the blameworthiness of O’Flaherty’s behaviour and that of Cyril Kelly’s. At worst, O’Flaherty initiated the relisting of Philip Sheedy’s case in the Circuit Court. The relisting was irregular but if the hearing had been conducted in a proper judicial manner that needn’t have mattered (and it would most probably have resulted in the dismissal of Sheedy’s application). A properly conducted hearing would arguably have cured the irregularity, and if it hadn’t the only harm done would have been to give Sheedy an extra day in court.
As far as I know, there’s no evidence that O’Flaherty knew which judge the case was likely to come before. To have foreseen how Kelly would deal with the case he would have needed periscopic vision. I think we have to assume that O’Flaherty expected that, if the case were to be relisted, it would be dealt with in an appropriate judicial (and judicious) way. He was very unlucky that it wasn’t. Remember, O’Flaherty behaved in an “inappropriate and unwise” way, thus damaging the administration of justice, while Kelly’s failure “to conduct the case in a manner befitting a judge” compromised it.
At the time, it seemed to me grotesquely unfair that these two very different levels of misconduct should attract the same penalty. Reading Mac Cormaic’s book reminded me of the sense of outrage I had felt at the time. That reminder is why I’m writing about it now, more than 25 years later. Talk about old news …
Posted by Art on 10-Nov-2024.