Criticising judges in Ireland

AuthorMary Kotsonouris
PositionIs a graduate in history and in law of the National University of Ireland and of Trinity College, Dublin
But these judges in Ireland have other
aspects... Orders suppressing national,
political and even literary organisations will
be found over the signatures of members of
this judiciary. So they have departed from the
status of independence of the executive
government by themselves taking a hand in its
work. This has undoubtedly been a poison in
the well of justice in this country.1
Following the Treaty signed in London on 6
December 1921, Hugh Kennedy KC, Law Adviser to the
Irish Provisional Government, in the letter quoted above, told
the Minister for Home Affairs that the incumbent judges
could not be trusted and should be warned against interfering
2001] Criticising Judges in Ireland 79
1 UCD Archives, Kennedy Papers, P/4 272, Kennedy to Duggan, 18
January 1922.
* Mary Kotsonouris is a graduate in history and in law of the National
University of Ireland and of Trinity College, Dublin. She served as a
judge of the Dublin Metropolitan District for nine years. She is the author
of Talking to Your Solicitor and Retreat from Revolution: The Dáil
Courts 1920-1924 and is currently writing a book on the Judicial
Winding-up Commission for the Irish Legal History Society. In the
preparation of this article the author spoke and corresponded with judges,
journalists, academics, editors, senior executives of the Law Society and
of King’s Inns, lawyers, officials of the Departments of Justice and of the
Law Reform Commission, archivists and friends. They were extremely
generous with their interest, patience and time and the author wishes to
express her gratitude. The opinions expressed herein are, however, those
of the author alone.
This article is an abridged version of the chapter on Ireland published in
“Freedom of Expression and the Criticism of Judges”, edited by Michael
K. Addo and published by Ashgate Publishing Limited. The Judicial
Studies Institute are grateful to Judge Kotsonouris, Dr. Addo and Ashgate
Publishing for allowing the article to be reprinted in part here.
in matters of state. As events turned out, the men thus
impugned were to remain in office for another two and half
years and to be succeeded by a judiciary constitutionally
established and headed by the letter writer, the aforesaid
Hugh Kennedy, the first Chief Justice of Saorstát Éireann -
the Irish Free State. Not only were His Majesty’s Judges to
continue on sufferance and without the support of the British
establishment, but they were to do so in competition with a
rival and popular judiciary for a further seven months, as they
had already been for more than a year and on through a civil
war followed by a long parliamentary debate on the Bill
which was writing them out of history. The Courts of Justice
Act, under which the present Irish courts were established did
not become law until June 1924.
There was, however, nothing revolutionary about the
law, procedure, dress or titles in the new Irish system
governed as it was, and still is, by common law and statute,
with one important difference - it is subject to a constitution.
We inherited the common law by conquest. The old Gaelic
system of Brehon Law remained in force up to the 17th
century outside of the Pale where English administration and
custom had taken root. What is known of it survives in law
texts originating in the seventh and eighth centuries A.D.2 A
judge was required to give a pledge of five ounces of silver in
support of his judgment. If that was wrongfully challenged,
he was entitled to a hefty payment from the complainant in
addition to his normal fee. It was believed that a judgment
secured by bribery brought the wrath of God on a kingdom,
and, perhaps even more persuasively for the office holder,
that a biased judgment visited unsightly blotches to the
cheeks of the judge which would not disappear until he
reversed it! However, it was not considered an offence to
criticise a judge provided you were prepared to pay him if
you were proved wrong.
As might be expected, the administration of law,
being biased in favour of the victorious settlers under British
rule, was distrusted by the generally dissident majority.
80 Judicial Studies Institute Journal [2:1
2 Kelly, A Guide to Early Irish Law; see also Breathnach, “Lawyers in
Early Ireland” in Hogan and Osborough (eds.), Brehons, Serjeants &
Attorneys:Studies in the Irish Legal Profession.

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