I was not wrong on O'Flaherty

Four weeks ago, this column was publicised on the front page of the newspaper with the words "I was wrong about O'Flaherty". I was not wrong about Hugh O'Flaherty.

I was not wrong to assert that hounding him from the Supreme Court was a travesty of justice and surrender to a frenzied mob demanding heads. I was not wrong to point out the unfairness of the language of the former chief justice, Liam Hamilton, in his report on the Sheedy affair, in using almost identical terms to characterise the innocuous behaviour of Hugh O'Flaherty and the more serious conduct of the other judge involved, Cyril Kelly.

I was not wrong to point out that had the Sheedy case been handled properly by the Circuit Criminal Court when it was brought back before it, nobody would even have complained of what Hugh O'Flaherty did. I was wrong about other aspects of the Sheedy affair, but not wrong in defending the integrity of Hugh O'Flaherty. I acknowledged four weeks ago that I was wrong in my evaluation of the scale of public reaction to his nomination to the vice-presidency of the European Investment Bank. Understandably, the public could not comprehend how the Government could think Hugh O'Flaherty was unfit for the Supreme Court in April 1999 but fit for a major European post a year later. That admission of error does not imply that I was wrong about Hugh O'Flaherty. Neither does the reflection that he handled the fallout from the crisis in April 1999 badly, that he was mistaken not to have gone before the Oireachtas committee, that he should have withdrawn his name for the EIB post much earlier. None of this means that I was wrong about Hugh O'Flaherty.

I WAS wrong about other aspects of the case as well. When I first wrote about it I expressed the view that a four-year jail term was an appropriate sentence for Philip Sheedy, for having driven his car recklessly, with alcohol in his system, albeit just sufficient to put him marginally above the legal limit, and causing the death of a young mother of three children. I have changed my mind about that. On reflection, I do not believe that a person who drives recklessly and with alcohol above the legal limit and who kills a young mother should suffer any more retribution than someone who drives recklessly and with alcohol above the legal limit and who happens not to kill anybody. The same culpability is involved in both instances and the same penalty should apply.

Since it would seem unreasonable for a person who drove recklessly and with alcohol in their system marginally above the legal limit to be sentenced to four years' imprisonment, I don't think that Philip Sheedy should have got that sentence.

I may also have been wrong about Cyril Kelly. He claimed that there was a representative from the DPP's office in court when he ordered the release of Philip Sheedy and he has contested the claim that he asked for the file to be tampered with subsequent to the case being heard. I was wrong to have jumped to the conclusion that he acted as improperly as I suggested.

I was wrong about another element of the case as well. My recollection was that in his unfortunate radio interview on the Sheedy affair last June, Hugh O'Flaherty stated that he had asked the Dublin Circuit Criminal Court registrar, Michael Quinlan, to list the case. This, I pointed out four weeks ago, conflicted with what he told the chief justice in April 1999. Hugh O'Flaherty has since told me that he checked back on the tape of that radio interview and that he did not say he had asked Michael Quinlan to list the case. He said he had merely asked if the advice he had given to the people who raised the matter with him - that the case could be relisted - was accurate.

But wrong about O'Flaherty? I was not.

At the core of the case against Hugh O'Flaherty is the conviction on the part of some politicians and excitable journalists and editorial writers that O'Flaherty had to have been involved in some web of conspiracy to "spring" Philip Sheedy from jail. The "evidence" in support of this is a) that Hugh O'Flaherty and Cyril Kelly were social friends and therefore had to be in cahoots; b) that the remark by Michael Quinlan to Sheedy's solicitor that he (the solicitor) did not want to know how the Sheedy case came to be relisted, was proof of impropriety on the part of Hugh O'Flaherty; and c) that there was something improper in Hugh O'Flaherty asking Michael Quinlan to bring a judgment of the Court of Criminal Appeal to the attention of the judge who would review the case.

The first of these - the "friends" factor - does not deserve comment. The Quinlan remark is the kind of blather that people sometimes engage in when pretending to be on the "inside" but should that constitute "proof" of wrongdoing on O'Flaherty's part? And as for the Court of Criminal Appeal judgment, since when did it become improper for a judge of an appellate court to bring to the attention of judges in lower courts judgments that could be relevant to their decisions? Isn't a central point of appeal court judgments to give guidance to lower courts on points of law?

Indeed, this very point is testimony to O'Flaherty's innocence in the whole affair. As a Supreme Court judge O'Flaherty was almost obsessional about the prevalence of appeals from lower to higher courts. He was of the view that the practice overburdened the higher courts, especially the Supreme Court, and that appeals should be discouraged except where significant issues were involved.

As the judge who then regularly presided over the Court of Criminal Appeal, he instinctively would have been keen to discourage an appeal from the Central Criminal Court. If he had been intent on "springing" Sheedy would it not have been far simpler for him to let an appeal come before his court - where, by the way, it is almost certain given the precedents, Sheedy would have been released?