Just before Mr Justice Seán O’Leary (apologies to Vincent Browne [subs needed] for the non deferential title) died just before Christmas, he dictated a valedictory note (subs needed). In it he highlights what he clearly saw as a growing tendency within the judiciary to bend to populist campaigns against “those persons who stand accused of socially unacceptable crimes”.In particular he focuses on the judgement of the Irish Supreme Court last May and in the wake of the major political crisis that followed the court’s decision to strike down the law of statutory rape, and validated the release of ‘Mr A’:
The failure of the Supreme Court to support the judgement 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 judgements 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.
Though he doesn’t excuse the political and media bating of the government at the time either:
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.
It is a point that was raised by Vincent Browne in the Village Magazine of 13th July last year:
Another key issue in this case is the issuing of a warrant by the Supreme Court for the arrest of a man who had been convicted of an offence the Supreme Court has found did not exist.
Even if the Supreme Court held that its finding 10 days previously that Section 1 (1) of the 1935 act had no retrospective effect (and that, in essence, what they did find) they went on to give it prospective effect by issuing a warrant for the arrest of a man in accordance with a law that they found 10 days previously did not exist.
Not a single one of the five judges dealt with the prospective effect of the issuing of the warrant. They will claim that the warrant was merely a procedural device and what they were doing was merely a procedural device giving effect to their decision that the 1935 law, although “null and void”, was not “null and void” retrospectively. That argument can hardly wash. Here was the court issuing a coercive order to deprive a man of his liberty under a law they had declared didn’t exist.”