Flood supports O'Leary stance on 'A' case

Former High Court judge Feargus Flood has added his voice to calls for the Supreme Court to show independence in the face of hostile media consensus and public opinion.

Mr Justice Flood expressed broad support for the views of the late Mr Justice Seán O'Leary who, in a posthumous article published in yesterday's Irish Times, criticised the Supreme Court's actions during last year's controversy over the release of offenders convicted of unlawful carnal knowledge.

Attempts by The Irish Timesyesterday to establish the views of sitting members of the Supreme and High Courts on Mr Justice O'Leary's comments were unsuccessful.

Mr Justice O'Leary accused the court of trying to curry favour with a potentially hostile media during the controversy last year over the release of offenders convicted of unlawful carnal knowledge.

Yesterday Mr Justice Flood said judges must have regard for public opinion and must respect it, but they must not be overwhelmed by it.

It was important that they always explained their reasons for taking a particular course of action in court. He said the Supreme Court had done its best in last year's "A" case, in which it ordered the rearrest of a man, known only as Mr A, who had been jailed in 2004 after pleading guilty to raping a 12-year-old girl.

Mr A had been freed earlier by the High Court, on foot of a decision in a separate case in which another man had argued he had been denied the opportunity of pleading he had reasonable grounds for believing the girl with whom he had sex was over the age of 15.

However, Mr Justice Flood said his deceased colleague was "probably right" in his assessment of the court's performance in the case. "They may have applied the law as they understood but there's a big difference between the written law and what is needed to bring a man back into society.

"You must look after society but you must also look after the prisoner. That doesn't mean the prisoner can be permitted to run riot in society."

Judges could not be slaves to the statutes; they must obey them, but they could also reduce their harshness by a careful assessment of a situation. Their task was to inter-relate humanity and justice.

Donncha O'Connell, dean of the law faculty at NUI Galway, welcomed Justice O'Leary's remarks about the Supreme Court and public opinion.

"I agree that some Supreme Court members seem to keep a half-eye on the media consensus and public opinion, but this is not an entirely new phenomenon.

"The kind of debate prompted by Seán O'Leary's remarks is a form of judicial accountability that does not undermine the independence of judges and that can only be a good thing."

Mr O'Connell instanced previous controversies relating to asylum, extradition and abortion as areas where judges were "mindful of public sensitivities" and politicians failed to treat the matter completely.

However, in other areas, particularly those involving claims for social and economic rights, the court had remained "untouched" by popular opinion, he said. In the case taken by Kathy Sinnott on the rights to education for autistic children, for example, a narrow view of the separation of powers has been posited as a justification for judicial restraint in the policy arena.

Mr Justice O'Leary also criticised the work of the Personal Injuries Assessment Board, describing it as a reform that had gone too far. Piab declined to comment yesterday, saying it would be "unseemly" given the judge's recent death.