When Mr Justice Seán O'Leary realised he was going to die, he took the unusual step of setting down some thoughts on the administration of justice with the instruction that they were not to be published until after his death. Seán O'Leary died at Cork University Hospital on December 22nd
As a judge of the High Court and chairman of the Residential Institutions Redress Board, this statement has been dictated for public circulation contemporaneous with my death.
Unfortunately circumstances prevent me from participating in the usual "valedictory" exchanges on the departure of a judge where each side of the legal profession can express true feelings with regard to the manner in which the office holder has conducted his or herself.
It has been a privilege (perhaps equalled only by my time as Lord Mayor of Cork) to hold the offices of judge of the Circuit and High Court.
I thank those members of the Bench who were helpful to me both at Circuit Court and High Court level. I thank the practitioners and record my deep sorrow that the duty fell upon me to deny any person their liberty no matter how objectively it may have been justified.
There are a number of trends that emerged during my period on the Bench to which I must, in fairness, make reference.
Many lawyers with brilliant minds have been appointed to positions of importance and will no doubt, in due course, make significant contributions towards the administration of justice, which is the true purpose of the legal system. Unfortunately, this transition will take time and there are three areas of particular concern to which I would draw attention as I depart from the Bench.
They all share one common thread, that is, a harsh, populist approach to those persons who stand accused of socially unacceptable crimes. 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. The trend is toward the denial of rights of those who George Bernard Shaw characterised as "the undeserving poor" and the emphasis on the rights on those who fall into more populist categories.
Three examples will suffice.
(1) The failure of the Supreme Court to support the judgment of the High Court in the case of A v The Governor of Arbour Hill Prison dealing with the Criminal Law Amendment Act 1935. A careful examination of the reasons given by the Supreme Court is outside the scope of this statement, suffice to say that the earlier judgments of the Supreme Court dealing with the 1935 Act had established that the offence of which Mr A was convicted was not and never had been an offence under Irish law after the enactment of the Constitution.
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 re-arrest 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.
Incidentally, in this case the focus of both Opposition and media on some perceived failure by the Minister for Justice or the Attorney General was unfair as neither of these persons were in any way responsible, in my view, for the difficulty that arose solely out of an earlier decision of the Supreme Court.
(2) The second example relates to the granting of representation to persons who stand "accused" before tribunals of inquiry. Though, in theory, "legally sterile", the findings of fact have profound effects on peoples' lives. The case of the Morris tribunal and Supt (Kevin) Lennon's appearance is a good example of unfairness.
Irrespective of the technical reasons for Supt Lennon's removal from An Garda Síochána, it was the unfavourable findings arising from the Morris tribunal that sealed his fate. The failure of both the Oireachtas and the courts to grant him legal representation pitted him, unrepresented, against some of the best qualified lawyers in the country. There is no criticism intended of Mr Justice Morris, who (as a retired judge) has but the status conferred on him by the terms of his appointment. He must obviously apply the law as it is presently understood.
Supt Lennon may have erred in the course of his duty and certainly was a focus of unpopularity, but the duty of the law is to be fair to all and not to limit its protection to those who are seen to represent popular causes.
(3) The courts have, in my view, contributed to the last of the three examples of interference with the rights of the individual by the awarding of excessive damages for personal injuries over the years. This has led to a justifiable campaign leading to the establishment of the Personal Injuries Assessment Board. Like many reforms it has gone too far.
The manner of its establishment, the backgrounds of those in charge of it and the general tone of their interaction with the community has created a culture where all claimants for personal injury can be characterised as "insurance fraudsters".
The culture so created has been added to by the aggressive advertising of the insurance lobby where claims are equated to fraud and unsuccessful claims allegedly give rise to a criminal record. The judgment of MacMenamin J in a case involving a Declan O'Brien was a landmark in re-establishing some rights for claimants. Much more needs to be done to restore an appropriate balance. If this is not done by the Oireachtas, then, in my view, the courts must insist on appropriate protection when suitable cases are presented for adjudication.
The purpose of these comments is not to criticise any individual but to make a final contribution to the impossible goal of justice for all.
Of the three matters, the Supreme Court failure is by far the most serious as it will, through its younger members, continue to have a serious effect on the jurisprudence of this country for many years to come.
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, make it vital that a spirit of independence from the populist consensus develops from within that powerful State institution.
Sean O'Leary: a life
Seán O'Leary was born in 1941. He pursued a career in law after qualifying as a barrister but was also active in local and national politics as a member of Fine Gael.
He was lord mayor of Cork in 1972/73, a senator and an important figure in Fine Gael at a national level, particularly during the 1980s.
After Garret FitzGerald became leader of the party in 1977 and its liberal wing assumed a dominant position, O'Leary became a senior backroom adviser to the leadership. In 1981, FitzGerald nominated him to the Seanad. He was nominated again in 1983, and served until 1987, after which he did not seek re-election.
But it was in his role as director of elections that he made his mark within Fine Gael. He fulfilled the task in the 1981 general election that saw FitzGerald elected taoiseach for the first time (hence the Seanad appointment). He was director of elections again during the two elections of 1982 - one of which FitzGerald lost, the other returning him to power - and once more in 1992.
Subsequently, he was appointed a judge of the Circuit Court and, in 2003, a judge of the High Court. It was in that capacity that he served as chairman of the Residential Institutions Redress Board.
He died three days before Christmas, after a long illness. At his passing, friends commented on his sense of humour, his kindness, quiet authority and integrity.
An obituary will be published in Saturday's edition.