Judges have allowed that they may be criticised, but only up to a point. That point may be exceeded, they have decreed, if the criticism brings the administration of justice into disrepute or if it causes the confidence, which people should have in judges, to be undermined, writes Vincent Browne.
What then if judges themselves bring the administration of justice into disrepute or if their conduct or utterances undermine the confidence people should have in them?
There is a nonsense to judicial preciousness, a nonsense that would be tolerated nowhere else and tolerated here only because there is no appeal against the estimation judges hold of the regard in which they think they should be held. This nonsense is not a mere irritant, it is a diminution of that modicum of democratic accountability to which judges, like all other public servants, should be subjected.
The issue arises now because of recent unfortunate remarks of two judges of the lower courts, John Neilan of the District Court in Longford and Harvey Kenny of the Circuit Court in Mayo.
Two African women were brought before the Longford court last week on a charge of shoplifting. The value of the goods allegedly stolen was €334. Both women are getting the single parent allowance.
Adjourning the case, Judge Neilan said: "There are people in this State who have worked all their lives and they don't, in their old age pension, have the benefits these ladies have . . . The majority of shopping centres in this District Court area will be putting a ban on access to coloured people if this type of behaviour does not stop . . . We give them their dignity and respect and the first thing they do is engage in criminal activity."
The crass racism of this is astounding: the peddling of crude prejudice against foreigners (they getting more from the State that old age pensioners); use of the generic "they", suggesting all in this category resort, as a "first thing", to criminality; the insinuation of conditional magnanimity in according them "their dignity and respect"; and the expectation of a racist boycott if African residents were again to be accused of a criminal offence. One assumes the hint of approval was unintended.
A few days after he had made these remarks the Courts Service said on behalf of Judge Neilan: "He's appalled to think that anything that he said could cause so much offence to so many people and if he did offend people he would want to apologise and he does so unreservedly". An apology because he is appalled to think his words would cause such offence? Some apology!
Harvey Kenny nearly became President of the Circuit Court (and therefore ex-officio a member of the High Court) a few years ago - Esmonde Smyth was appointed instead. Six weeks ago he made racist remarks in court at Castlebar about Nigerians driving around without insurance. At least he had the civility to apologise unreservedly .
There is a feeling that it doesn't matter who are appointed District Judges, for any irrationality on their part can be corrected by the higher courts. Certainly at least one appointment in recent years suggests an indifference to standards of competence and good sense.
But if there is to be concern for public confidence in the administration of justice, should there not be concern for the calibre and the mind-set of those appointed? I have argued for years in these columns for some kind of public scrutiny of appointments to the Supreme Court, so that there may be some element of accountability in the exercise of the enormous power that court commands.
It might be, for instance, the will of the public that the Supreme Court would give "content" to individual rights by requiring the government, in extreme circumstances, to vindicate such rights through the provision, for instance, of adequate healthcare or education or housing.
As it happens, we have a Supreme Court that thinks this would be an improper invasion of the realm of the executive branch of government even in extremis . I am not suggesting this is an untenable position, rather that the opposite opinion is not untenable either, and we should know the disposition of those nominated to the court on such crucial issues before we confer on them such extensive and (thereafter) unaccountable powers.
Surely, less controversially, we should be assured that the judges we appoint to the lower courts have a normal decent respect for other people and that they take care to avoid conveying otherwise in their judicial pronouncements? And we should provide ongoing education for them in the civilities of public discourse.
Just as I am completing this column I have heard of the death of the former chief justice, Tom O'Higgins, who delivered several of the key judgments on this issue of the liberty to criticise judges. He was open to vigorous argument on his judicial decisions, and his legacy on the Supreme Court was of a legal system that was more protective of the rights of the individual than it had been previously or, arguably, since.