A ‘quite improper’ ruling on the judiciary

NOTHING to see here, folks, now move along please. So went the tone of the statement issued by the presidents of the High and Circuit Courts on Monday evening regarding the latest controversy to hit the judiciary.

It’s not good enough. Questions have been left hanging. The issue of judges interfering in cases outside their remit has resurfaced. The lack of accountability in the judiciary has come home to roost again. And confidence in the secret courts conducted in family law is again looking shaky. All of that is apart from questions about the incident itself, which have gone unaddressed.

Here is what we do know: In late July 2010, the High Court Judge Henry Abbott met his Circuit Court colleague Desmond Hogan in the yard of the Four Courts. In the course of a casual conversation, Hogan asked Abbott if it was true he had made a particular order in a family law case.

The case centred on a dispute between a mother and father about access to their child. The order in question had been made some days previously, on July 21, but Abbott told his colleague he took exception to the query and that the reasons for his decisions would be pub-lished in a written judgment.

According to a report in The Sunday Times, quoting the judgment in question, Abbott characterised the approach as having been made “quite improperly”.

Hogan, for his part, can’t remember any such conversation. He told the president of the Circuit Court that neither can he recall how he came into the information about the case, as alleged by Abbott. As a long-standing judge of Dublin Circuit Criminal Court, Hogan will have encountered witnesses who genuinely can’t remember details of significant events in their lives from a few years previously. He will also have come across witnesses who conveniently claim they can’t remember.

On Monday, he couldn’t remember a lot of detail that might illuminate the situation.

According to the presidents’ statement, Hogan “would not dispute that he may have asked Judge Abbott in a casual way about the case”. How can one learned judge regard an inquiry he can’t remember as “casual” while a learned colleague — in a tight judicial community — regarded it as “quite improper”?

The statement read: “There had been absolutely no intention of interfering with the case or influencing the outcome in any way.” Hogan is saying he can’t remember anything about the incident, but that if it did happen, his intention was not to interfere. How can he know that if he can’t remember it?

Abbott was obviously put out by the encounter. In a subsequent hearing of the case on Feb 15, 2013, he questioned one of the parties about issues arising from the encounter.

As a result of either that questioning, or whatever passed between he and his colleague in 2010, Abbott concluded that Hogan had been acting on foot of an approach from a politician. His ruling referenced “the entirely improper interference of the mother via political representative and judge”.

On Monday, Mary O’Rourke revealed the mother in the case had told her about her problems in a clinic, but she emphatically denies that she approached Hogan or any judge about the matter.

Hogan says he is “satisfied that he had no solicitation or request from any politician or from any party involved in or connected with the case in any way”. How can he be so sure when he can’t even remember his encounter with Abbott?

How then did Abbott, who appears to have acted in an exemplary manner, come to the conclusion that there was interference in the case via a judge and politician? It could be that he elicited from the mother in questioning that she had approached the TD and he put two and two together.

We simply don’t know. We didn’t get the answers to that in the presidents’ statements. The statement was issued about eight hours after presidents Nicholas Kearns and Raymond Groarke began an inquiry. In the notorious history of long-running judicial inquires, this one was down and dusted in the blink of an eye. Maybe these judges should have been in charge of the planning tribunal.

Their statement did say Hogan’s approach to Abbott “should not have occurred”, but that it didn’t interfere with the latter’s ruling, as the ruling had predated the approach.

“We are also satisfied, as indeed verified by Judge Abbott, that the conversation of July 2010 (which was one lasting less than one minute) had no effect when three years later he delivered a further ruling on 12 July 2013.”

So that’s it, folks. Nothing to see here. In one sense, the presidents’ haste to put a lid on the affair is understandable. If they came to the conclusion that the conduct of Hogan required further investigation or even sanction, there is precious little they could do. The only sanction available is removal from office, which requires a vote of two thirds of the Oireachtas. Neither judiciary nor executive wants to go down that road.

Neither, though, have the two branches got around to setting up proper structures for judicial inquiry or sanction. Fourteen years after two judges were forced to resign over a case involving interference, there is still no sign of the establishment of a judicial council.

The Sheedy affair in 1999, in which Supreme Court judge Hugh O’Flaherty and Circuit Court judge Cyril Kelly resigned, involved alleged judicial interference in a criminal case. We didn’t get to the bottom of that either, but it was widely assumed that after two high-flying careers were cut short, no other judge would thereafter dream of doing anything that might even smell of interference. Yet, here we are, with a High Court judge finding an approach from a colleague quite improper.

The public is asked to accept that the judiciary be entirely trusted, without scrutiny, to conduct matters as they would in open court across a highly sensitive element of the legal system. In this day and age, knowing all that we do, that’s asking a lot.


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