In his eloquent and dignified resignation speech on Monday, former Mr Justice Cyril Kelly said that "the stuff of the courts is frequently the acknowledgement and management of human tragedy. It is neither a game nor a business. It is always about real people and genuine suffering".
His words were an important reminder of the gravity of the issues at stake in the Sheedy affair. The abstract formulations of the law, the sometimes byzantine procedures, the grave self-importance of the judges, the deliberately archaic style of dress and address, are rather like the use of masks and stylised verse in ancient Greek tragedy. They are there to make the chaos and misery of the lives that parade through the courts bearable for those who enforce the law.
With the shock to the system of the forced resignations of three senior legal figures, something of that misery has broken through these defensive barriers and touched the very heart of the legal establishment. The Chief Justice has had to sit in judgment on a friend and colleague. Former Mr Justice Hugh O'Flaherty and Cyril Kelly have discovered what it is like to have one's own irrevocable actions placed under a forensic microscope. Michael Quinlan, the Dublin county registrar who made the administration of justice much more speedy and efficient, has been speedily and efficiently condemned.
And, in order to manage these human tragedies, the system has invented a new protective manoeuvre. It is the repeated insistence that everything that happened in the Sheedy case was an utter aberration. In particular, the operation of social class to favour a "graduate" from a "good family" is treated as a one-off event. The notion that class might have obvious, long-term and far-reaching effects on the administration of justice is an appalling vista that must not be contemplated.
The first and clearest problem with this notion is that it is simply ridiculous to suppose that former judges O'Flaherty and Kelly, and Mr Quinlan are or were bad apples within the sweet orchard of Irish justice. All the evidence is to the contrary. Mr O'Flaherty was regarded as such an exemplary figure that he would almost certainly have been the next chief justice. Nothing in his record as a barrister or a judge suggests that he is inclined to have a rush of blood to the head and behave oddly. Even his severest critics have not suggested that he acted out of any selfish or venal motives. Cyril Kelly is agreed to have been not just a capable judge of the Circuit and High courts, but also an outstandingly conscientious and compassionate one. Far from being especially inclined to class prejudice or snobbery, he was noted for his particular concern for ordinary people in trouble. If he stood out at all, it was for his basic decency.
And Mr Quinlan was not the kind of corrupt or weak-minded administrator who habitually bent the rules. Again, all the evidence is that he was an outstanding official. His running of the Dublin courts, the busiest and at one time the most tardy in the State, is acknowledged to have been an overwhelming success. He was widely trusted and deeply respected within the system.
If these three men were corrupt or incompetent or outstandingly prejudiced, then we could all sink back into justifiable smugness. A good system, we could say, was temporarily tainted by a few bad individuals. But the taint has been removed with their resignations, and the system is restored to its pristine innocence. But these were not bad individuals. They were among the very best. What we should be asking is this: if class bias can operate so flagrantly even in the exemplary parts of the system, what does that tell us about the system as a whole?
One way to avoid this question is to suggest, as my esteemed colleague Vincent Browne has done, that the fault was essentially Mr Kelly's and that Mr O'Flaherty did nothing but "speak to two people, who met him by chance, about the case and then to ask [Mr Quinlan] about how appeals against sentences were handled" by the Circuit Court. This, too, would be a comforting conclusion, suggesting as it does the scandal did not really have its source at the highest levels of the judicial system.
But we know in fact that Mr Quinlan certainly didn't take Mr O'Flaherty's intervention as a mere abstract query about procedures. Whatever way Mr O'Flaherty spoke to him, Mr Quinlan, in the words of the Department of Justice report, regarded it as "his duty to meet what he took to be the wishes of one of the most senior members of the judiciary, Mr Justice Hugh O'Flaherty, by arranging to have the Sheedy case brought back quickly before the court."
Is it seriously suggested Mr O'Flaherty did not know the likely effect of summoning an official to his chambers and raising a specific case? Or that an able, respected and experienced lawyer like Michael Quinlan would completely misinterpret the words of a Supreme Court judge? The only point of such suggestions in any case is to avoid what is flagrantly obvious: the issue of class.
Granted, it should not have taken the Sheedy case to bring this issue to the fore. Diarmuid Doyle in the Sunday Tribune, for instance, has pointed to the extraordinarily narrow range of the educational backgrounds of senior judges. Of the 32 judges of the High and Supreme courts, an astonishing 22 went to one of just seven secondary schools: Clongowes, Blackrock, St. Mary's, Crescent College, Gonzaga, Glenstal and Belvedere. I doubt that even the notoriously class-ridden English bench could match that for clannishness.
No one would suggest that this can be changed quickly or easily. But if the problem is at least acknowledged, some of its worst effects can be tackled. Plea-bargaining can be removed from the confidential quarters of the judges' chambers and conducted more openly. The process of reviewing sentences can be made much more transparent by setting up formal parole boards whose proceedings are open to scrutiny. Some form of independent oversight of the courts can be established.
Much of this is now on the agenda. But there are two far more general and more serious changes that have to follow. One is that we have to decide to keep many more people out of prison. The revolving door system necessitated by chronic overcrowding means that the scope for private ad-hoc adjustments to sentences imposed at public trials is enormous. Sending fewer nonviolent offenders to prison would create a much more transparent system of justice. After all, if open prisons are good enough for middle-class criminals, why aren't they good enough for the poor?
The other big change has to be one of attitude. Much more damaging than the inherent and unconscious bias of judges is the fact that whitecollar crimes are still regarded as not quite criminal. A junkie snatching a handbag is a menace to society. A businessman whose minions use pen and paper to waft other people's money into his beautifully lined pockets is an example of rugged private enterprise. Until that changes, expressions of astonishment and shock at the events of the last week will continue to smack of either extraordinary naivety or blatant hypocrisy.