Hamilton's report was `a finding too far'

The former Supreme Court judge, Mr Hugh O'Flaherty, said last night that he would do whatever the Government wishes where his appointment to the European Investment Bank was concerned.

In an interview with Eamon Dunphy on Today FM last night, he defended his actions in the Sheedy affair and described as "a finding too far" the report of the then Chief Justice, Mr Liam Hamilton, on those actions.

Asked about the Sheedy affair and his humanitarian concerns in the case, he said: "Well, maybe `humanitarian' wasn't the best word. I know I used it myself, but . . . the background was this man got four years for a dangerous driving offence causing death. That at the time was quite a severe sentence.

"But the judge stipulated that he would review it after two years. So the reality of these type of sentences which are imposed with a review date is that it is the review date that is the real sentence.

"His lawyers then went back to the original judge, Judge Matthews, and said we don't want a review date. This is what was the mystery thing about it, that he was now going to serve four years because he was too late to have been to the Court of Criminal Appeal. So he could do two things in my estimation, or my estimation at the time.

"One was to apply to extend the time and bring his case to the Court of Criminal Appeal, and that would have been feasible; or should he go back to the court and say, `Look, I want this reinstated, my review date'? That's the suggestion I made to the young people who asked me about it and I said their solicitor, get their solicitor to bring a motion to have it relisted in the court.

"So that really, I suppose, it wasn't so much a matter of humanitarian as more simple justice I think. What sentence should he serve? Nobody had intended he should serve four years."

He did not feel that, as a Supreme Court judge, he ran a risk by intervening in the case. At the time he was presiding regularly at the Court of Criminal Appeal, he said. It was run on a reasonably informal basis, with a lot of prisoners representing themselves.

"A lot of people would come to the registrar looking for help and the registrar might come to me and say `Well, what do we do?'. So there was a lot of ad-hoc decisions made simply to get a case on. I can't see, and can't see to this day, what's wrong with getting any case into court. It is the great single complaint of the legal profession, from top to bottom, is how do we get our cases on, how do we get a hearing, how do we get a decision with reasonable rapidity and without ending up in the poorhouse."

He said he did not know of any other judge who had intervened in a case in the way he had done, or "that I intervened the way I did in any other case in precisely that way, but I would have made other suggestions from time to time. I met people casually and they'd say `How do we do this?, How do we get our case on?' and I might come up with suggestions as to how they might do it."

He and the registrar, Mr Michael Quinlan, would meet almost every day, certainly every week, he said. So there was no question of his exercising any dominance over him. He regarded Mr Quinlan as very much an equal. They worked as a team at the court, he said. The atmosphere was always cordial, supportive.

His purpose in talking to Mr Quinlan about the Sheedy case was "to say that I had suggested that that is the way they might go about matters and he said he'd inquire and he came back to me and said that can be done . . . with the list". He had suggested a course of action to have a case come before the court, he said.

Mr O'Flaherty initially disputed whether he had asked Mr Quinlan to keep the matter confidential, as Mr Quinlan had said in a letter to the President of the Circuit Court, Mr Justice Esmond Smyth. Mr Dunphy produced the letter and read what Mr Quinlan had written.

"Well, I honestly cannot ever recall ever saying that it was in confidence . . . But I dealt with that in an addendum I made to my statement to the then Chief Justice and said that if it was regarded as confidential let it be so, but it was not meant in any underhand or contrived manner," said Mr O'Flaherty.

The Hamilton report on the affair, which found that Mr O'Flaherty's actions had damaged the administration of justice, was "a finding too far in the light of what I told him and what he appeared to accept. But he made the finding he did, and you should recall that just as we have a great frenzy at the moment we had then a great frenzy as well, with many public representatives saying we want a report and we want it fast and we want a definite prognosis . . .

"But there it was, that was the finding he made and then, having reflected on it I could not see - having assumed he had discussed it with other colleagues on the Supreme Court - I could not see how I could continue to serve on the Supreme Court in the light of that finding."

Mr O'Flaherty said he had been involved "in many cases. I mean people would come and say `Can you recommend a good solicitor or barrister?' for this or that, and I would show that much interest and say `well so and so is good at this.' Unless you condemn yourself to an ivory tower, in which case you're the worst in the world as well, these things happen. Your advice is sought and you give it."

Media coverage of the story had been "on the whole pretty one-sided" apart from a few voices such as Dr Ryle Dwyer, Kevin Myers and Vincent Browne. It had been "more or less a cavalcade of comment the other way," he said.

Queried again about his intervention in the Sheedy case, he said: "All I can do is come back to the motivation behind it which was . . . should this man serve four years or should he have a chance to have his case relisted again? And once it gets relisted does it matter how it comes to be relisted?" He had no discussion about the case with Mr Cyril Kelly, he said. He described as "nonsense" Mr Dunphy's suggestion that maybe he assisted only people he knew or people who knew people he knew. He helped all sorts of people. In his statement to the Chief Justice, he gave a full account of what had happened. Knowing that that report was "pretty damning", he decided something radical needed to be done so he offered to go before the Dail Committee to answer questions. But then the decision was taken that no resolution was being put to remove him from office.

He was asked about his comments on a 20-year-old heroin addict sentenced to nine years, reduced to six years on appeal before Mr O'Flaherty. Mr O'Flaherty had said handbag snatching was a cancer in our society. Mr O'Flaherty said the word "cancer" had been used by him in an unguarded moment and was not in his formal opinion. The reality of the case was that the woman concerned was sentenced to two years. It was conceded by her counsel she would have to serve two years or she would kill herself. The two years was contingent on her getting rid of her addiction.

"We [three appeal judges] felt it had to be a severe sentence. She had to serve two years or she would kill herself. Everyone was agreed to that."

Mr Dunphy's suggestion that his appointment to the European Investment Bank after just one year was not the way the common people of Ireland were treated in the courts was "a very unjust thing to say to me," Mr O'Flaherty felt. Asked whether he would take up the EIB post, he said he would "do whatever is the wish of the Government at this stage, and of the European Parliament".