McCreevy atones for a serious wrong done to judge

Charlie McCreevy should be congratulated for atoning for a grievous wrong done a year ago to Hugh O'Flaherty. He has taken the predictable political flak which has arisen from doing what was right.

The wrong done to Mr O'Flaherty can be encapsulated in a point: had the Sheedy case been handled properly by Judge Cyril Kelly after it had been listed for a review of sentence nobody would have thought even of criticising what Mr O'Flaherty had done.

He was driven from office not because of anything he had done but because of what was done by somebody else. He was driven out in a frenzied bloodlust generated, as is now a ritual, by the Opposition.

And as is also usual, the Government of the day capitulated. Nobody shouted stop.

John Bruton asks why Mr O'Flaherty resigned as a Supreme Court judge before he had an opportunity to come before an Oireachtas committee and explain his involvement in the Sheedy affair. The answer is that although he had offered to explain his position to an Oireachtas committee, the Government was preparing to impeach him before he had an opportunity to do so.

The injustice of that typified the general handling of the case.

Let us recall the Sheedy affair. Philip Sheedy drove a car recklessly and killed Mrs Annie Ryan, the mother of a young Tallaght family. He was convicted of dangerous driving causing death and sentenced to four years' imprisonment in November 1997.

I think that such a sentence is entirely appropriate given the harm which this reckless driving caused. Yet judicial practice had been to impose a two-year sentence with a review after one year in such cases. This would mean that the convicted driver was released after a year.

Mr O'Flaherty was asked about the case by a neighbour and he offered the view (which, incidentally, was mistaken) that it was open to Sheedy to go back to the Circuit Criminal Court and have the sentence reviewed. Had he wanted to "fix" the case he could have advised that the sentence be appealed to the Court of Criminal Appeal, where he was then presiding judge.

SUBSEQUENT to that conversation, he asked the registrar of the Circuit Criminal Court to come to his rooms at the Four Courts. He asked if it was possible to have the original court, the Dublin Circuit Criminal Court, review the sentence.

That is all he did. He did not conspire to have Sheedy released. He did not suggest that Sheedy be released. He did not ask for the case to be relisted, although the registrar might reasonably have interpreted the query as a request to have it listed, for that is what he did.

One could hardly object to Liam Hamilton's description of what Mr O'Flaherty did as "inappropriate and unwise". Yet is it really suggested that all "inappropriate and unwise" conduct by judges should lead to the threat of impeachment?

Wasn't the refusal of the Supreme Court to give immediate effect to the constitutional amendment on the right to information on abortion not "inappropriate and unwise" and did anyone suggest that the judges in the majority in that case all be impeached?

But to return to the Sheedy affair.

The case came before Judge Kelly, who made four errors. First, he heard the case in the absence of any representative from the DPP's office. Second, he wrongly reviewed the sentence when he had no jurisdiction to do so. Third, he misrepresented what was on the case file to justify the release of Sheedy. And four, and most disturbingly, he subsequently suggested that the file of the case be tampered with.

Commenting on this, Mr Hamilton fairly observed that Mr Kelly "failed to conduct the case in a manner befitting a judge".

Mr O'Flaherty had no part whatsoever in this mishandling of the case by Mr Kelly. What Mr O'Flaherty did left him open to criticism. What Mr Kelly did was of a different order.

And despite that difference, Mr Hamilton in his report used almost identical words to describe the effect of their respective conduct. He said of Mr Kelly that what he did "compromised the administration of justice" and what Mr O'Flaherty did "damaged the administration of justice". It was a grossly unfair equivalence.

Mr O'Flaherty mishandled the fallout in two respects. Once the controversy broke, he should have made a public statement setting out what he had done in relation to the case, in advance of giving his version of events to Mr Hamilton. Then, after he had resigned, he should still have gone before an Oireachtas committee to tell of his involvement in the affair.

I assume he did not do so because he was personally shattered by what had befallen him and because he felt unwilling to co-operate with those who, so unfairly, had demanded - and got - his head on a plate.

The suggestion by Michael Noonan yesterday morning that what Mr O'Flaherty did impinged on the rights of the late Mrs Ryan or her family is nonsense. The suggestion by The Irish Times editorial writer last Saturday that what Mr O'Flaherty did could be bracketed with the corruption recently revealed in Irish public life is outrageous.

The nomination of Mr O'Flaherty to the European Investment Bank was clearly Mr McCreevy's doing and it signals an appropriate acknowledgement that what was done to Mr O'Flaherty a year ago was wrong. There are not many in Irish politics, like Mr McCreevy, who do what is right, irrespective of the consequences. When it happens it should be celebrated.

vbrowne@irish-times.ie