Sheedy case whips a tremble in a teacup into a crisis

Before the report of the Chief Justice, Mr Justice Hamilton, on the Sheedy affair is published, it might be useful to be reminded of the allegations made about that affair and of the rumours which circulated for weeks about the involvement of judges and court officials in what was represented as a piece of grave judicial misconduct.

Jim Higgins, the usually measured Fine Gael spokesman on justice, spoke in the Dail on Tuesday, March 30th, of this being "an extremely serious case". He said: "It goes to the very heart of judicial performance, credibility and the public's faith in a central and vital instrument in the criminal justice system, namely, the courts."

So serious was all this, he said, that "unless a satisfactory explanation is forthcoming, we may have to seek to invoke Article 35.4.1. of the Constitution (that is the clause which deals with the impeachment of judges)". He said that in the Sheedy case "a coach-and-four was driven through time-honoured procedures".

During the same debate, Brendan Howlin, the Labour Party spokesman on justice, said the ["]"at best peculiar and at worst sinister". He said: "This case raises disturbing questions as to whether there was any improper interference with the administration of criminal justice by the courts."

ON THE following day, Wednesday, March 31st, on the Order of Business in the Dail, the Fine Gael deputy leader and former minister for justice, Nora Owen, alleged "the Tanaiste [Mary Harney] is trying to hide somebody" in relation to the Sheedy affair. In a later intervention, she said: "The country is talking about the situation. We have the Cahirciveen connection, we have judges involved, we have all sorts of things that are undermining the judicial process."

In a further comment on the affair, she said: "One of the judges was appointed [to the High Court] very soon afterwards." (That is after the balance of the sentence imposed on Philip Sheedy was suspended in the Circuit Court on November 12th, 1998.) On Thursday, April 1st, Jim Higgins

said: "What is at stake here is the credibility of an essential instrument of our democracy and criminal justice system, the courts." Brendan Howlin said: "It is quite clear that we are dealing with matters of a most serious kind."

All of this arose from rumours that had been circulating in legal, political and journalistic circles for several weeks, which ran along the following lines: Hugh O'Flaherty, a judge of the Supreme Court and a personal friend of the Sheedy family, contacted Cyril Kelly, then a judge of the Circuit Court, about the Sheedy case. It was further alleged that O'Flaherty asked Kelly to re view the sentence in the Sheedy case and to do it in a way that would preclude the representation in the case by the DPP.

Furthermore, it was alleged that O'Flaherty said that through his friend and fellow Cahirciveen man, John O'Donoghue, the Minister for Justice, he would be able to fix Kelly up with a promotion to the High Court, and finally, that Kelly did the business, O'Flaherty delivered on the High Court appointment for Kelly and everything was hunky-dory.

The truth is, as has now emerged informally, that Hugh O'Flaherty did not know the Sheedy family, did not contact Cyril Kelly about the case, did not ask for the case to be listed, did not ask that the case be heard in a manner to preclude the representation of the DPP, made no suggestion that he could arrange through John O'Donoghue for Cyril Kelly to become a High Court judge, and had no part otherwise in Cyril Kelly becoming a High Court judge.

So much for the rumours.

But what about what was said in the Dail, and how will those who made the more extravagant claims about this matter respond if it transpires that there was nothing much at stake at all?

We already have a foretaste of what the reaction of Nora Owen is likely to be. When it was established that her remark at the Order of Business on March 31st about the "Cahirciveen connection" was utterly baseless, her response was not to withdraw the allegation, but to sniff: "I do not have the slightest intention of taking lectures from the Minister on how I should conduct myself in the House." She said: "I am sorry I did not bring my handkerchief so that I could share in the Minister's tears."

However understandable that reaction might have been vis-a-vis John O'Donoghue, given what he said about her when she was minister, surely she owed Hugh O'Flaherty an apology for the "Cahirciveen connection" remark? The only possible meaning this could have had was that Hugh O'Flaherty and John O'Donoghue had been in cahoots in rigging the case. And what about her clear suggestion that Cyril Kelly was appointed to the High Court because he had rigged a case? If it emerges that this is utterly baseless, will an apology be forthcoming?

If it emerges that the sole basis for criticism of Hugh O'Flaherty in this affair is that he spoke informally to the county registrar of the Dublin Circuit Court about the case, seeking only to establish whether the Circuit Criminal Court could hear an application for a review of sentence, where does that leave the array of allegations laid before the Dail two weeks ago?

Where does that leave Jim Higgins's contention that this affair "goes to the very heart of judicial performance, credibility and the public's faith in a central and vital instrument in the criminal justice system, namely the courts"? And his claim that the case could justify invoking the impeachment provisions of the Constitution? Will he have the good grace to apologise?

Likewise, will Brendan Howlin have the good grace to withdraw his claims that what was involved were "matters of a most serious kind"? Will those in legal, political and journalistic circles who so glibly and recklessly circulated the rumour referred to above (or versions of it) have the decency to go to those to whom they relayed those rumours and withdraw them?

We all know the answers to these questions. There will be no withdrawals, no apologies. Instead there will be new spins, all seeking to puff up a tremble in a teacup into a constitutional storm. (Incidentally, if the press published any similarly baseless allegations about any of these politicians, the air would be thick with writs.)

There was another tremble in a teacup, blown up into a major crisis, 41/2 years ago over the Duggan case, now almost entirely and justifiably forgotten. A head was demanded then and, ultimately, a head was delivered. The head was that of the newly-appointed President of the High Court, Harry Whelehan. That was a profound injustice. There must not be another one.