A High Court judge who died shortly before Christmas has left a posthumous critique of the justice system in which he accuses members of the Supreme Court of attempting to curry favour with a potentially hostile media during the controversy last year over the release of offenders convicted of unlawful carnal knowledge, writes Peter Murtagh.
Mr Justice Seán O'Leary also implies that the court, and particularly what he terms its "younger members", are not sufficiently independent from what he calls a populist media consensus.
He further takes issue with the Morris tribunal treatment of a senior Garda officer, and is critical of the work of the Personal Injuries Assessment Board.
"Like many reforms, it has gone too far," he says.
Mr Justice O'Leary died in Cork on December 22nd, aged 65, and his comments are published in full in today's Irish Times.
They were written at a time when he was evidently aware of his approaching death and that he would not have an appropriate forum in which to make the traditional valedictory observations from the bench as he retired.
Noting that he wanted his observations publicly circulated "contemporaneous with my death", Mr Justice O'Leary says his concerns "share one common thread, that is, a harsh, populist approach to those persons who stand accused of socially unacceptable crimes".
And he adds: "There appears to be a failure by the courts, up to and including in particular the Supreme Court, to vindicate the legal rights of the morally undesirable or socially unacceptable."
He instances the decision by the Supreme Court in June 2006 to order 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 order of the High Court, on foot of a decision by the Supreme Court in a separate case, the so-called CC case.
In that case, CC's conviction for unlawful sex with a girl under the age of 15 was struck down by the Supreme Court. It did so because it ruled that the law used to convict him was inconsistent with the Constitution because he had been denied the opportunity of pleading he had reasonable grounds for believing the girl was over the age of 15.
When Mr A was freed on foot of that decision amid a public, political and media outcry, the State successfully appealed to the Supreme Court.
Mr Justice O'Leary says of the outcome: "The lengths to which the Supreme Court went to obfuscate the fact that the continued detention of a prisoner in an Irish jail (in fact the rearrest of a released prisoner) for an offence that did not exist in law at the date of his conviction smacks of an attempt to curry favour with a potentially hostile media".
The decision in the Mr A case, which was unanimous, was taken by the Chief Justice, Mr Justice John Murray, sitting with Ms Justice Susan Denham, Ms Justice Catherine McGuinness (who has since retired), Mr Justice Adrian Hardiman and Mr Justice Hugh Geoghegan.
Referring to younger members of the Supreme Court, Mr Justice O'Leary says: "The background of these younger members, their identification with the media consensus, the power which they will yield over the careers of solicitors and barristers, makes it vital that a spirit of independence from the populist consensus develops from within that powerful State institution."
Elsewhere in his comments, Mr Justice O'Leary - a former Fine Gael senator and director of elections - takes issue with the failure to grant legal representation to some persons appearing before tribunals of inquiry, noting that "though, in theory, 'legally sterile', the findings of fact [ by tribunals] have profound effects on people's lives".
He says the manner of the establishment of the Personal Injuries Assessment Board, the backgrounds of those in charge of it and the general tone of their interaction with the community have created a culture where all claimants for personal injury can be characterised as "insurance fraudsters".
Judges must show 'spirit of independence' - Mr Justice O'Leary's article in full: Opinion, page 14