Judges are often treated like a breed apart... not this time

WET behind the ears as a cub reporter I turned up at Sixmilebridge Court one day to find that old judicial warhorse and noted alcoholic, the late District Justice Gordon Hurley in foul mood. It was the late Seventies and farmers weren’t exactly raking it.

That didn’t stop the sozzled judge from lashing out hefty fines on those farmers which gardaí found availing of the doubtful privilege of the pothole-pocked roads of Clare without any tax at all being paid. Hurley was outraged and this kind of thing had to stop.

During a break in proceedings I took a breather outside and called over one of the gardaí who’d been giving evidence against the impecunious farmers.

‘What about that?’ I asked the garda as I tapped the car in front of the courthouse door with my foot.

‘What about what?’ he asked, before I nodded towards the out-ofdate tax disc on the windscreen.

‘Jaysus, the cheek of some people,’ he blurted as he started to pull his notebook out of his top pocket. Then, he stopped rigid on realising that the car belonged to the drunken judge on the bench inside. ‘F*** off Colleran you little s***,’ he said, walking back inside.

The message was clear – judges are a breed apart.

Things are a lot more orderly and a lot more professional now as far as judges are concerned although, in fairness, there have been reliable accounts in recent years of a few outliers who still managed to survive on the bench despite their – how do I put this – eccentricities.

FACT is, judges have had a great welcome for themselves in this country since the State was founded a hundred years ago – and many centuries before that under our colonial masters. And the thing about that great welcome is – it’s entirely deserved.

As an essential, constitutionally mandated pillar of government the judiciary are, currently, in all practical respects untouchable. The only means of showing one of them the door is by way of Article 35.4 of the Constitution – and it’s a binary choice between sacking or no punishment at all.

The proposed method for dealing with complaints against judges as provided for in the Judicial Council Act 2019, is not yet in force and therefore entirely moot in the current crisis confronting Supreme Court Judge Séamus Woulfe, arising from the disastrous Oireachtas Golf Society misadventure in Clifden.

The current intolerable incapacity to deal with judges who may misbehave contrasts entirely with the extraordinary powers they wield over all of us on the most significant matters conceivable to impact our lives.

Judges decide on matters of life and death (medical intervention cases), on liberty and personal freedoms, including whether we’re jailed, whether gardaí were entitled to arrest us in the first place; they decide on money and property matters, whether we must cough it up or whether it’s due to us, whether the boundary fence is in the right place, whether we have legal ownership even in cases involving life-changing amounts of money; whether we have to exit our own homes in domestic dispute situations and, even more critically, when, where and how frequently we may see and enjoy the company of our own children. And much more besides.

Tom O’Malley, the highly regarded professor of law at NUI Galway, has said the removal of Judge Woulfe from office would be disproportionate to any wrong that may have been committed, according to the Law Society Gazette. He says: ‘Proportionality is not just the overarching principle of sentencing in this country. It has also been described by the Supreme Court as a “well-established tenet of Irish constitutional law”, referring to a 1997 case of Rock v Ireland.’

The difficulty with Professor O’Malley’s analysis is that it positions the question of Judge Woulfe’s future in the context of the highly legalised, courtroom, case law environment – when, in fact, that’s not where it properly resides. Judge Woulfe, by attending at Clifden, stepped off the bench and entered the public realm – and, because of that, it’s entirely right that public opinion should act as the jury in his case.

The fact that the Supreme Court has now asked former chief justice Susan Denham to investigate whether Judge Woulfe should have attended the Clifden shindig is a clear acknowledgement by the court that outraged public opinion has to be accommodated. But former Judge Denham’s findings will hardly count for much if the gardaí recommend prosecutions.

Further, and much more serious, what happens if – on account of the principle regarding the inviolability of the home in the Constitution – proposed legislation to allow gardaí break up house parties as part of the battle against the coronavirus ends up in the Supreme Court?

IN ALL the circumstances, is it conceivable that Judge Woulfe would be included in the panel of judges to decide such an issue – and if he’s not included, what does that say about his membership of the court in the first place? The Irish Times quoted retired judge Garrett Sheehan as warning against hounding ‘good people’ out of office for ‘one serious mistake’. There was a danger, said Mr Sheehan, that ‘good people will refrain from entering public life having witnessed the personal consequences for many people of having made one serious mistake’.

It’s a strange argument to say the least.

Does he mean that highly paid public employees should be granted a licence to misbehave even to the point of grossly offending public sensibilities at a time of an extraordinary health crisis involving the tragic and huge loss of life, on the basis that, otherwise, ‘good people’ would not be willing to work in such positions?

His comments come, at least in The Irish Times, without any supporting evidence that such would be the case.

Judge Woulfe is now the last man standing. Dara Calleary has lost his Cabinet position but still draws his TD’s salary.

Big Phil Hogan has lost everything. His resignation leaves him unemployed – at least for the moment – which, in legal terms, might be considered ‘disproportionate’.

And the question is: why should Big Phil be made walk the plank and Séamus Woulfe retain his position in the highest court in the land?

Or, are judges always to be such a breed apart?