Seán O'Leary's censure of the Supreme Court

  • 3 January 2007
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Seán O'Leary was a lovely, clever, honest, humourous man, devoid of conceit, contemptuous of humbug. His posthumously-published observations on recent decisions of the Supreme Court deserve to be taken seriously, most particularly by members of the court itself.

In a note dictated some months before his death on 22 December last and published in the Irish Times on 3 January, he commented on “a harsh, populist approach to those persons who stand accused of socially unacceptable crimes”, notably by the Supreme Court. He wrote of how “the trend is toward the denial of rights of those who George Bernard Shaw characterised as ‘the undeserving poor' and the emphasis on the rights on those who fall into more populist categories”. He cited three cases, one of them being the “A” case in which, last July, the Supreme Court ordered the re-arrest and incarceration of a man for an offence it itself had decreed did not exist. He said this smacked “of an attempt to curry favour with a potentially hostile media” – a reference to a clamour got up, notably, by RTé's Liveline programme on the day that case was being heard by the Supreme Court.

An extraordinary feature of that case – one not mentioned by Seán O'Leary – was that a complex legal issue was deliberated upon and decided by the judges in double-quick time as the populace was baying on the streets. The court issued its decision that very afternoon, although it took some weeks for it to come up with the reasoning for that extraordinary decision.
Seán O'Leary was not the only high court judge or senior legal personage to think that that decision was not alone wrong, but one which damaged the credibility and independence of the court. One senior judge of the high court made his views generally known and a number of other high court judges also made known their dismay with what had happened, as did senior members of the Bar.

Seán O'Leary also made a good point about legal representation at tribunals, notably, the Morris tribunal. Characteristically, he identified one case of injustice for a person who appeared before the Morris tribunal, a person for whom not many would have sympathy – this was one of the gardaí who had been involved centrally in the scandals involving gardaí based in Donegal. This garda, Kevin Lennon, was denied a guarantee of his legal costs (Seán O'Leary was mistaken in claiming Kevin Lennon was denied legal representation).
He (Seán O'Leary) went on to comment critically on the Personal Injuries Assessment Board, writing “the manner of its establishment, the backgrounds of those in charge of it and the general tone of their interaction with the community has created a culture where all claimants for personal injury can be characterised as ‘insurance fraudsters'.”

In a concluding observation, Seán O'Leary was scathing of some of the younger members of the Supreme Court, the youngest of whom, Adrian Hardiman, is now perhaps the most influential member of the court. He wrote: “The background of these younger members, their identification with the media consensus, the power which they will yield over the careers of solicitors and barristers, make it vital that a spirit of independence from the populist consensus develops from within that powerful state institution.”

It is refreshing that someone with the authority of Seán O'Leary should speak out as he has done, albeit posthumously. The issues he has raised are of central importance to the governance of this state because the power that is conferred (and appropriated!) by the Supreme Court is enormous.

That “A” case decision was deeply damaging to the credibility of the court, although the verdict the judges delivered so hastily and on such flimsy grounds won popular acclaim at the time as well, incidentally, as political gratitude from the government. But the role of the courts and, in particular, of the Supreme Court is to ensure that this state is ruled not by the whims and demands of the mob, nor by the conveniences of politicians, but ruled by law. It is because the Supreme Court's decision in the “A” case is seen to have broken that trust that so much damage has been caused.