Mr Justice Hugh O'Flaherty's actions were "damaging to the administration of justice". Mr Justice Cyril Kelly's actions "compromised the administration of justice." They were not "befitting a judge."
The conclusions of the report by the Chief Justice, Mr Justice Liam Hamilton, in relation to the two judges are simple and clear. He is clear despite disputes among key and eminent individuals over the facts. The contradictions are such that some people interviewed by the Chief Justice cannot have told him the truth.
The judicial saga began on June 11th, 1997, when the then Judge Cyril Kelly presided over the simple court hearing at which Philip Sheedy pleaded guilty to dangerous driving causing death, and driving with an excess of alcohol in his blood. Judge Kelly adjourned the matter for sentence until October 20th and ordered medical and probation and welfare reports.
Although the court order records that these proceedings were held "before his honour Judge [Joseph] Matthews at the Law Courts, Chancery Place, Dublin", the Chief Justice's report says it is clearly established that they took place in fact before Judge Kelly. It is not clear why the discrepancy exists.
However on October 20th, 1997, the day sentence was due to be handed down, Judge Kelly transferred the case to Judge Matthews.
According to Judge Matthews, Judge Kelly told him he had got too close to the case as he had had private discussions with counsel on both sides on various issues, including how much compensation might be paid.
Here is the first conflict. Judge Kelly agrees that he transferred the case to Judge Matthews, but denies making these comments. He says he had no meetings with counsel for both sides.
According to Judge Matthews, Judge Kelly informed him that the accused was a graduate, from a good family and with no previous convictions. He felt it was a suitable case for a suspended sentence and said he would send over the file. Again, Judge Kelly denies saying the case was suitable for a suspended sentence.
On reading the file, Judge Matthews concluded that a suspended sentence could not be imposed. "I wondered was Judge Cyril Kelly actually familiar with the facts or was he so busy that he might have missed the gravity of the case . . ." He went to Judge Kelly and told him of his view. He says Judge Kelly simply stretched out his arms as if to say he should do as he saw fit.
Judge Matthews then sentenced Sheedy to four years' imprisonment, the sentence to be reviewed in October 1999, two years later.
Seventeen days later, on November 6th, 1997, Sheedy's legal representatives successfully applied to Judge Matthews to set aside the review date. It appears from Judge Matthews's account to the Chief Justice that this was done in the hope that Sheedy might be able to avail of temporary release from prison before the review date.
Sheedy's representatives never sought leave to appeal to the Court of Criminal Appeal against the severity of the sentence.
However, one year later on November 12th, 1998 the matter was listed before Judge Kelly again. On that day Judge Kelly ordered that the balance of the sentence be suspended. He also ordered that the review date fixed for October 20th, 1999 be set aside. This, however was superfluous, as this had been done already the previous year.
It is the reason for this relisting of the case and how it came about that forms the substantial part of the Chief Justice's report in relation to Mr Justice O'Flaherty.
Late last year, Mr Justice O'Flaherty of the Supreme Court says, he had a chance meeting with Mr Ken Anderson, a son of neighbours and family friends. Mr Anderson was accompanied by a sister of Philip Sheedy. During a five or 10-minute conversation they outlined the facts of the case to him. He thought they were similar to a case heard by the Court of Criminal Appeal over which he had presided, that of DPP vs McDonald delivered in July 1998.
Mr Justice O'Flaherty said that Mr Anderson and Ms Sheedy appeared to be somewhat mystified as to how they should proceed, as the review date had been removed. He suggested that it might be possible to have the case relisted so that it could be looked at again, both in the light of the McDonald judgement and "in the light of the defendant's deteriorating health situation".
He said he is prepared to accept that this was an error and if it was, "it was an erroneous view of the law but did not involve any wrongdoing."
Perhaps the more crucial event in relation to Mr Justice O'Flaherty is his encounter with the Dublin Circuit Court County Registrar, Mr Michael Quinlan.
The judge asked Mr Quinlan to call to see him in his chamber. They spoke for less than two minutes during which the judge mentioned the Sheedy case to him, told Mr Quinlan that he had suggested that it might be possible to have the case relisted, and gave him a copy of the McDonald judgement. Mr Quinlan said he would look into the matter, according to the judge.
Mr Justice O'Flaherty and Mr Quinlan agree that the judge did not ask for the case to be relisted, nor did he discuss the facts of the Sheedy case. It was in fact solicitor Mr Michael Staines who had asked to relist the case, according to them.
But Mr Staines's request came after he was contacted by Mr Quinlan and advised that he could apply for a review of the sentence to a judge - who, he was told, might or might not hear and deal with it. He recommended that this application be made in Court 24 (in which Judge Kelly was presiding) as the sentencing judge, Judge Matthews, was not sitting in Dublin and the other Circuit Criminal Court judges were hearing trials.
Mr Staines has told the Chief Justice that he was "bemused" to have been contacted like this, as it was the first time in his 20 years of practice that he had received such a call. A week after receiving this call, Mr Staines took steps to make such an application, and asked that the file on the case be made available to Court 24.
In preparation for the hearing in Court 24, Mr Quinlan says he gave Mr Staines the usual advice that the Chief State Solicitor should be notified. Mr Staines denies he was asked to do this, although Mr Quinlan is equally adamant.
Mr Quinlan gave the Sheedy file to Mr Brendan O'Donnell, higher executive officer, and asked him to have the case listed on November 12th, 1998. Mr Quinlan says this date was nominated by Mr Staines. Mr Staines says it was not
Mr Quinlan then informed Mr Justice O'Flaherty that the case was being relisted.
Once again, Judge Kelly became involved. He was the judge sitting in Court 24 on November 12th, 1998, the day for which the Sheedy case was listed. In a hearing that can have taken just two minutes, he suspended the remaining three years of Sheedy's sentence. He did this, he said, on the basis of a psychological report which gave him "grave concerns in relation to his mental condition at the moment".
Unfortunately, this psychological report was out of date, as it had been considered by Judge Matthews before imposing sentence. Some days after he had released Sheedy, Judge Kelly informally met Mr Luigi Rea BL, who had represented Sheedy in the case and commented that the expert report on the file was not up to date. He suggested an up-to-date report be prepared and put on file. This request was passed on to Mr Staines, who refused to comply.
Commenting on this request from Judge Kelly, the Chief Justice says: "Whatever the motive for that suggestion may have been, having regard to the fact that the case had concluded in the Circuit Court, it was manifestly improper."
The Chief Justice also says that Judge Kelly should not have entered upon a review of a sentence imposed by one of his colleagues. Mr Justice Kelly insisted in a letter to the Chief Justice that "it was not an unusual practice." However the President of the Circuit Court, Mr Justice Esmond Smyth, says this was not normal practice, save where the original judges had retired or been elevated to the High Court.
The Chief Justice was asked to report on the facts. He draws conclusions but says he has no jurisdiction to make recommendations.