Michael Clifford: Judges are a law unto themselves

A fully functional judicial council would have obviated the display of two high-profile judges involved in an unseemly face-off, says Special Correspondent Michael Clifford
Michael Clifford: Judges are a law unto themselves

Seamus Woulfe's problem is that he doesn’t have the confidence of his Supreme Court colleagues over how he handled Golfgate. Picture: Gareth Chaney
Picture: Gareth Chaney

Judges are still a law unto themselves nearly 100 years since the State came into being.

It’s no way to run a country, but that’s down to a dereliction of duty on the part of successive governments and the judiciary.

Whenever an issue arises about judicial conduct, such as Séamus Woulfe’s Golfgate problem, no sanction can be applied short of dismissal.

Impeaching a judge is a matter for the Oireachtas. 

No judge has ever been impeached in this country, and irrespective of how things go, it’s unlikely that the Supreme Court’s newest recruit will be subjected to it.

Change is on the way, but that is going to be too late for Mr Woulfe. Next July, the element of a judicial council dealing with judicial misconduct comes into effect.

The council was established in law last December, nearly 20 years to the month since it was first recommended by an expert committee. 

The council, when fully established, will provide a mechanism to deal with complaints against the judiciary and decide on sanctions.

Successive governments long-fingered dealing with the matter. Then when the executive did get going, the judiciary got precious about some aspects of the proposed law.

As a result of the decades of inaction, a potential constitutional crisis arises every now and again over a judicial misconduct case.

No judge has ever been impeached in this country, and irrespective of how things go, it’s unlikely that the Supreme Court’s newest recruit will be subjected to it.

In 1999, Supreme Court judge Hugh Flaherty and his circuit court colleague, Cyril Kelly, found themselves in serious trouble.

Both were caught up in what was known as the Sheedy affair. 

Philip Sheedy had been released early from prison while serving a four-year sentence for dangerous driving causing death. Both judges were involved in his early release.

A report into the matter was compiled by then chief justice Liam Hamilton.

He reported that the actions of both men had compromised the administration of justice. Following that, with the Oireachtas was limbering up for
an impeachment process, the two men resigned.

A problem of a potential criminal nature arose in 2006 with circuit court judge Brian Curtin.

Former chief justice Susan Denham. Picture: RollingNews.ie

Former chief justice Susan Denham. Picture: RollingNews.ie

He was prosecuted for possession of child pornography but the case was dismissed over a legal issue. Despite the verdict, impeachment beckoned.

Curtin hung on with a view to serving long enough to get a pension, but a deal was reached before the matter got to the floor of the Dáil. He resigned on grounds of ill health.

Séamus Woulfe’s transgression is of a completely different order to those two cases. His problem is that he doesn’t have the confidence of his Supreme Court colleagues over how he handled Golfgate.

If a judicial council had been fully functioning last August, Séamus Woulfe would have appeared before it.

In all likelihood, he would have received a sanction not a million miles from the informal one recommended by Chief Justice Frank Clarke, who proposed Judge Woulfe not sit for three months and waive his salary for that period. And that would have been the end of the matter.

Instead, a non-statutory inquiry under former chief justice Susan Denham was initiated. 

This is where Séamus Woulfe met his Waterloo. He lawyered up and went into the process as if it were a court of law.

The transcript of his interview with Ms Denham spoke of somebody who was highly indignant over that to which he was being subjected. 

He lashed out at the media and politicians and suggested that the Golfgate controversy was, to a large extent, exaggerated.

In this, he completely misjudged the mood of the public at a time of a painful and deathly pandemic.

Ms Denham recommended that he shouldn’t have to resign. However, she also published the transcript of their interview which, it now appears, has made his position on the Supreme Court untenable.

The former chief justice demonstrated her own judicial instincts in the decision to publish. 

Without a formal process in place, she obviously concluded that transparency was required, particularly in a matter concerning public confidence in the judiciary.

The same instinct informed Chief Justice Clarke’s decision to publish the correspondence between himself and Judge Woulfe on Monday.

Both the former and current chief justices would be acutely aware of the last time an issue arose over public
confidence in the judiciary at a time of national pain.

In 2010, in the depths of a recession, a small minority of judges refused to pay a voluntary pension levy, which was imposed on all other public servants. The judges, due to their legal status at the time, could not be compelled to pay and were required to do so voluntarily. That year, 22 of 147 judges refused.

The controversy lowered the status of the judiciary in the eyes of the public. There were charges that they saw their own relatively padded positions as being above the strictures imposed on everybody else.

If a judicial council had been in place at the time, perhaps those judges amenable to the levy could have brought greater pressure to bear on colleagues unwilling to cough up.

This time around, the chief justice is obviously placing great store on retaining public confidence at a time of widespread pain.

The actions of Frank Clarke and his colleagues also exposes the populist bleatings of former minister Shane Ross about how the judiciary is habitually disposed to sorting out their pals for jobs.

Séamus Woulfe is a popular figure, widely liked. Even Mr Ross himself, who knows Mr Woulfe since both were at cabinet, yesterday described him as “a decent man, a very nice man”.

In his correspondence with the chief justice, Mr Woulfe referred to their own longstanding friendship.

“You and I have been friends and professional colleagues in various capacities for many years, indeed decades,” he wrote.

Despite that, the chief justice, and his colleagues on the Supreme Court, have placed confidence in the institution above any friendship, notwithstanding the consequences for Mr Woulfe.

That’s a harsh outcome for Mr Woulfe. One of the main reasons it has come to this is that we are still waiting for a fully functional judicial council.

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