Criticising judges in Ireland

• Author: Mary Kotsonouris
• Position: Is a graduate in history and in law of the National University of Ireland and of Trinity College, Dublin
• Pages: 79-97

CRITICISING JUDGES IN IRELAND

MARY KOTSONOURIS*

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

I. INTRODUCTION

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.