Legal world shocked at threat to the system

The present scrutiny of the judiciary takes place at a time when the legal system is playing an unprecedented role in public …

The present scrutiny of the judiciary takes place at a time when the legal system is playing an unprecedented role in public life. The rash of tribunals examining the conduct of politicians and their relationship with big business has greatly enhanced the public's respect for the judiciary.

The increase in cases where courts have been asked to vindicate the rights of disturbed or handicapped children to appropriate education shows the courts are sometimes seen as a more effective remedy than politics.

Constitutional cases on abortion and the right to die have put the judiciary at the hub of social change, and some harrowing criminal cases have all combined to bring members of the judiciary out of their accustomed anonymity.

So when rumours of the Sheedy case began to circulate they struck at one of the most cherished institutions in the State, and one which had escaped criticism.

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At a time when scandals had robbed the Catholic Church of much of its moral authority, and politicians were generally (if often unfairly) held in low esteem, people felt they could turn to the courts to have their rights upheld.

But the Sheedy affair raised the possibility that some people had more privileged access to the justice system than others, that everyone was not equal before the law.

In his report, Mr Justice Hamilton found that Mr Justice Hugh O'Flaherty's actions in the matter "were open to misinterpretation" and therefore damaged the administration of justice. Mr Justice Cyril Kelly "failed to conduct the case in a manner befitting a judge".

Mr Justice O'Flaherty has resigned, so the prospect of impeaching a member of the Supreme Court has been averted. Mr Justice Kelly's intentions are still unclear. Both the Government and the judiciary want to ensure that mechanisms are in place to deal with any similar situation that might arise in the future.

The Minister for Justice will bring proposals on this to the Cabinet tomorrow. Because of the Constitutional guarantee of the separation of powers, these are likely to take the form of an internal committee of the judiciary.

Mr O'Donoghue has already had a report from Ms Justice Denham, chairwoman of the Working Party on the Courts Commission, which examined how to deal with allegations of judicial misconduct. It looked at the situation in other common law jurisdictions and proposed that the Chief Justice set up a committee to examine how their experience might be used here.

The Government is very anxious that any mechanisms which are put in place must have the agreement of the judiciary, are carefully worked out, and are not the product of a knee-jerk reaction to public disquiet about the Sheedy affair.

This anxiety to have an appropriate problem-solving mechanism is shared by the legal profession. Already the Denham recommendations have won widespread acceptance from within the judiciary, so it is hoped that they will form the backbone of any proposals that are made.

Indeed, the readiness of the legal system to face this problem head-on and to take any action necessary to solve it has been one of the most striking aspects of the whole affair. Individuals at every level of the legal world have been shocked by the threat to the integrity of the system the case represented, and anxious to have that integrity upheld.

This commitment to the integrity of the legal system is clearly shared by Mr Justice O'Flaherty himself, who, while insisting he did nothing wrong, was prepared to sacrifice his whole career in order to ensure that the system was seen to be impartial.

It is unlikely that any other profession would have reacted in quite the same way - and their mistakes can have more serious consequences.

There has been no suggestion that the Sheedy case involved any kind of financial corruption. No one has suggested that the two judges concerned stood to gain any personal advantage from their actions. While the Hamilton report did not identify their motivations, its implication was that they were humanitarian.

There have been cases where members of the medical profession have been found negligent by the courts, to the point of causing death or serious disability. Yet it is highly unusual for them to cease to practise medicine as a result.

It is also accepted that access to medical treatment and education varies according to people's means. The thoroughness with which this affair was tackled suggests a commitment to the principle of equality before the law. In the end it is likely that legal system will emerge strengthened.

Already judges are seen to be public servants who work totally independently of any commercial considerations. While they are appointed by politicians, it has never been suggested that this affects their judgments afterwards.

The "Cahirciveen connection" suggestion raised by Ms Nora Owen in the Dail has turned out to be unfounded.

What the Sheedy affair has raised is the access which people from a middle-class background have to the legal system compared to those from the working class and the unemployed.

This will undoubtedly continue to be the case, insofar as middle-class people are more likely to know solicitors and barristers and select those who best suit their needs, while those with less resources are thrown on the mercy of the overworked legal aid scheme, or take their chances with the garish solicitors' advertisements in the Golden Pages.

But the case will mean that judges will be more careful about considerations of social class - and aware that their observance of procedures will be under scrutiny.