Balancing The scales

The last untouched institution of State has finally come under media scrutiny", the Sunday Tribune told us on April 4th, apropos the Philip Sheedy affair.
Sheedy is the Dublin architect who was sentenced in October 1997 by Judge Joseph Matthews to four years for a fatal drunk-driving accident, but released by Judge Cyril Kelly last November. No plausible explanation has been produced at the time of writing of how, why or by whom the case, having been disposed of by Judge Matthews, was referred back to Judge Kelly, or of the reasoning behind Judge Kelly's decision to remit the remainder of Sheedy's sentence.
It is reported that a Supreme Court judge, Hugh O'Flaherty, has been asked for his comments on the matter. A considerable political and media brouhaha is under way.
The fact that the case has sparked media interest in the workings of the judicial system underlines how remiss the media have been in the past.
Suggestions of dodgy behaviour by judges have long been considered taboo, even by commentators who relish rummaging through suggestions of a similar sort against business people, politicians or churchmen.
But if journalists have been cautious, others have been craven. A TD can denounce the doctors, lash the publicans, suggest that trade unions are holding the country to ransom, and Leinster House will take it as par for the political course. But lay a rhetorical finger on the rights and privileges of the judiciary and all hell will break loose. So, it has hardly ever happened.
This hands-off approach is commonly encapsulated in references to "the independence of the judiciary", a concept which, we are sometimes invited to believe, is "the corner-stone of democracy". In fact, it might be argued, the direct opposite is the case: that the judiciary is independent of democracy.
The judiciary is tight-knit and secretive to an extent which the State intelligence services would envy. Uniquely among the institutions of State, it has no designated spokespersons, no press office or PR operation to present its workings to the wider world. Sitting judges never submit themselves to questioning about the reasons for particular decisions. Leaks from within the ranks of the judiciary are unknown.
There is a reason for this. One of the functions of the judiciary, sealed off from questioning society, is to provide the ruling elite - of which judges are part - with a mechanism for dealing with issues which an elected body finds it difficult or too dangerous to tackle. Take the problem facing the political system a decade ago with regard to the beef industry.
The law had been breached in the political arena to put huge sums of public money at the disposal of companies selling beef to foreign buyers with bad reputations for paying. A number of politicians were personally friendly with some of the bosses of companies involved.
The affair had the potential to destroy the reputation of major political and business operations and to undermine confidence in sections of the public service. In the absence of official action, the media might have declared open season on the subject. It had been a brilliant report by Dublin journalist Susan O'Keeffe for Granada Television's World In Action which had blown the cover off the affair in the first place. What to do?
In May 1991, under intense political and media pressure, the Government of Charlie Haughey appointed the president of the High Court, Liam Hamilton, as the sole member of a Tribunal of Inquiry. Hamilton conducted public hearings at Dublin Castle which lasted until June 1993, and produced his report in August 1994. The then Taoiseach, Albert Reynolds, Minister for Industry and Commerce at the time of most of the events covered by the Inquiry, was able immediately to announce that he had been personally exonerated. No politician or public servant was identified in the report as having been criminally at fault.
Many of us who read the Report found it difficult to relate these conclusions to the evidence which had been presented at the hearings. But there was no mechanism for pressing Hamilton to justify his findings, no requirement that he account to the public for the way he had handled the task given to him by the Government. The State paid a massive bill for lawyers' and 'consultants' fees. Thereafter, business continued as usual. Liam Hamilton was appointed Chief Justice.
Judge Kevin Lynch presided over the 1984/'85 'Kerry Babies Tribunal'. His key finding was that a Cahirciveen woman, Joanne Hayes, had murdered her new-born baby.
The Tribunal had been appointed after it emerged that, although Ms. Hayes had confessed to the garda murder squad that she killed a baby which she'd given birth to, and whose body had been found along the shoreline some distance from her home, and although members of her family had given gardai statements corroborating this confession and admitting to various roles in the murder and the disposal of the remains, the body in the case turned out not to be that of the baby she'd given birth to at all.
How could this have happened? How could this series of detailed and internally-consistent, but clearly-fabricated, confessions to murder have been made? The careers and reputations of an elite garda unit was at stake.
Judge Lynch produced a report which, in another context, might have been considered richly humorous. He offered the theory that although Ms. Hayes hadn't murdered the unidentified baby she'd originally confessed to murdering, she had murdered her own baby, whose body had been located on farmland near her home. No evidence of any kind had been presented to him to suggest or sustain the theory. But Judge Lynch ruled that it was fact.
The Report was presented to the Oireachtas, which had the right to scrutinise and discuss it. But there was no scrutiny and no discussion. Justice Minister Michael Noonan of Fine Gael declared that "The report speaks for itself" and, even more bizzarely, compared Lynch with "that other great investigator, Mr. Sherlock Holmes". The Fianna Fail opposition, content that the gardai had been "exonerated", sang dumb. The media, for the most part, shied away from challenging the findings of a judge. The story was dropped.
Although the judge's finding of murder against Ms. Hayes has remained on the record, she has never been brought to court to answer to it - in itself a most remarkable state of affairs. Not that it's much remarked on.
The most relevant result of the Inquiry was that a highly embarrassing matter had been brought to a conclusion without any State official being held accountable.
Judge Lynch is now mentioned as a likely appointee to the Supreme Court.
Judge William O'Connor was unconscious on the bench for long periods during the Special Criminal Court hearing in 1978 of evidence against a number of men charged with the INLA robbery of a mail train at Sallins in Kildare. When defence counsel drew the attention of the two other sitting judges to the fact that O'Connor was comatose alongside them, they refused to acknowledge that this was so.
The defence appealed up through the court system, arguing that their clients could not get a fair trial if a third of the court was unconscious. In all, nine judges, including five members of the Supreme Court, were to make a "finding of fact" that O'Connor was alert and following the evidence when it was perfectly plain to everyone that this wasn't fact, but fiction.
On the 65th day of the trial, O'Connor died. The case had to be reheard from the beginning, at a cost of millions to the public purse.
What of the nine judges who had found as a fact something which demonstrably and disastrously hadn't been a fact at all? Was there an outcry? Dail demands for resignations? Thundering editorials in the daily papers? A promise of a review of procedures?
None of this happened, because to suggest such a course would have been to challenge the "independence of the judiciary", which for practical purposes is impermissibe.
The Sallins case was to rumble in the background of Irish politics and the law for more than a decade. It figured in news reports in 1985 when the Chief Justice, Tom O'Higgins, retired to take up an even more distinguished position in Europe. To mark the occasion, he allowed himself to be interviewed. He was asked about one of the Sallins defendants, Nicky Kelly. O'Higgins had presided over, and had turned down, two appeals by Kelly.
O'Higgins defended the way the courts had handled the case, claiming that Kelly, "had never once said he was innocent". That this wasn't a slip of the tongue was confirmed when O'Higgins repeated the claim afterwards in a RTE interview.
In fact, Kelly had twice given evidence under oath and had vehemently protested his innocence on both occasions. Which raises the question - it was raised in these columns at the time - whether the account given by O'Higgins at the time of his retirement had accurately reflected his understanding of the case at the times he'd ruled that Kelly was guilty.
Had the highest judge in the land upheld the conviction and imprisonment of a citizen on the basis of a seriously inaccurate understanding of the evidence given in the case? No-one in politics and hardly anyone in the media ever pressed the matter.
Such is the irrational and debilitating reverence in which the judiciary is held. But perhaps, as the Tribune suggested, this is now going to change.
While we should hope to see this, we should believe it when we do.
The reluctance to challenge the judiciary is based on more than a tradition of deference. Liberal theory would have it that the "independence" of the judiciary is necessary for the proper functioning of our society, in which a number of distinct and separate "estates" - the elected parliament, the independent judiciary and the "free press" among them - exist in delicate balance with one another. To try to make the judges accountable to any of the other "estates" is to upset this balance.
There are no more fervent adherents of this theory than judges. Any attempt to expose their ways of working to the eyes of the people will be met by obdurate resistance, and shameless suggestions that society, even "democracy", is being put under threat.
They should be given short shrift. At present, the judges are unelected and answerable to nobody. Democracy will be greatly in the media's debt if we manage finally to bring them to book. n