The Gazette 1976

SEPTEMBER 1976

GAZETTE

pulsorily". He then went to England and was called to the Bar there in 1925 and became a King's Counsel but his health broke down and he returned to Ireland and sought to become a solicitor. His application took the then Chief Justice Kennedy by surprise but, having heard argument, the Chief Justice ruled that in the particular circumstances of Sir James O'Connor's case he did not retire from the judicial office of his own motion or voluntarily. And as a sequel to a revolution, the office held by him was abolished and the whole system of Courts, of which he was a member, should be distinguished from the new system of Courts which had been created under the Con- stitution of the new State of 1922. Chief Justice Kennedy went on to say, however : - "I feel that, in the interests of justice, Sir James O'Connor should not exercise such personal right of audience in the Courts. As Campbell said of Pemberton, he would still be regarded as laying down the law with judicial authority and he would tend to overbear inferior Courts, while it would be a scandal were he to explain his own judgments for the purpose of advancing a client's cause". Accordingly, Sir James gave an undertaking that he would not seek personal audience in any of the Courts. I will now attempt a synopsis of some of our legal developments. First, no doubt, you will be interested in the extent of the influence of Australian Case Law in our jurisdiction: It would be wrong, I think, to say that reports of Australian cases are cited in our Courts with the frequency they deserve. Rather do we tend to accept the reflected glow that they emit when they are quoted in judgments of the House of Lords or of the Privy Council. This may be due to a certain lack of mutuality in that while many Irishmen have occupied judicial office in Australia, as far as I can gather, no Australian has occupied any Irish judicial post! The first High Court consisted of Chief Justice Griffith, Mr. Justice Barton and, as I have said, Mr. Justice O'Connor — all of which names have had their Irish judicial or quasi-judicial equivalent at one time or another. In comparatively recent times Sir Frank Gavan Duffy was Chief Justice of Australia from 1932 to 1935 and almost contemporaneously with that Mr. Justice George Gavan Duffy was a member of our High Court from 1936 to 1951, having been appointed President in 1946. (Part II will be published in the October Gazette) I,0. B r own: The Politics of Irish Literature from Davis to Yeats. ( L o n d o n: George Allen & Unw in Ltd., 1971). I I . Article 38. Exceptions are minor offences, trial for those subject to military law a nd "special courts" which m ay be established where the ordinary courts are inadequate to secure the effective administration of justice, a nd the preservation of public peace and order. Part V of the Offences Against the State Act 1939 (No. 13 of 1939) provides the machinery for the setting u p of such special criminal courts. O n Ma y 26, 1972, the Government ma de a proclamation bringing Part V into operation a nd on Ma y 30 set u p a Special Criminal Court. It has operated continuously since. It consists of three members of the judiciary a nd broadly speaking deals with crimes by alleged subversives as well as certain scheduled offences under the Firearms Acts, Malicious D ama ge Act, Explosive Substances Acts a nd Prohibition of Forcible Entry a nd Occupation Act, 1971. See The Special Criminal Court by Senator Ma ry Robinson, Barrister-at-Law (Dublin Un i- versity Press Ltd., 1974). 12. MacAuley v. Minister for Posts and Telegraphs (1966) I.R. 345 at 347. * Mr. Justice K e n ny was appointed to T h e Supreme Co u rt in December 1975. 13. See Section 17 of the Courts Act, 1971 (No. 36 of 1971). I n fact the right is rarely exercised in the Supreme or H i gh Courts. 14. (1924) I L T R 178 and 180. 15. In Re The Solicitors Act and Sir James O'Connor (1930) I.R. 623. 153

House of Commons passed an average of one Irish Coercion Act per year — each permitting the suspension of some part of the regular process of the Common Law. John Mitchell was prompted to ask: "Which is the palladium of English liberty, is it habeas corpus or the suspension of habeas corpus?" 10 Nevertheless, the basic ideas have survived and certain essential features of the Common Law have been embodied in the Constitution of 1937, viz. * Trial by J u r y ; 1 1 * Equality before the law; * Trial "in due course of law". Personal Rights Mr. Justice Kenny in our High Court* has referred to the difficult and responsible duty of ascertaining what are the personal rights of the citizen which are guaran- teed by the Constitution. " In modern times" he said "this would seem to be a function of the legislative rather than the judicial power but it was done by the Courts in the formative period of the Common Law and there is no reason why they should not do it now". 12 There is a division of the legal profession in the Republic between barristers and solicitors. Since 1971 solicitors have had a right of audience in all the Courts co-equal with barristers. 13 Barristers, in turn, are divided into Junior Counsel and Senior Counsel and the rules and practices governing the two tiers at the Bar are much the same as yours. Thus, as with the New South Wales Bar Association, a Senior Counsel may not appear for a party without a Junior Barrister but he may, if he chooses, appear without a Junior in a criminal trial or indictment of a person. Again, where he appears elsewhere than in a Court as an advocate (for example before administrative tribunals) there is no rule of the profession requiring him to have a junior. The new title "Senior Counsel" came about with the arrival of the Irish Free State and the setting up of the first Courts thereafter. In the issue of the Irish Law Times of July 19, 1924, it was noted : " The new Senior Counsel have been granted Patents of Precedence rank- ing next after the existing King's Counsel. No explan- ation was given why this new order of Counsel has been created, but for all practical purposes the new seniors will rank equally with King's Counsel both as to emol- uments and privileges". 14 The report refers to it as an "interesting ceremony"; thus was the transition made from the old title to the new. If Mr. Justice O'Connor was a member of your first High Court then, by coincidence, one of the last Lord Justices of Appeal in Ireland was also an C ' Co n n o r, Sir James O'Connor and his story is an interesting one. 15 Sir James O'Connor was admitted a solicitor of the then Supreme Court of Judicature in Ireland on the 23rd November, 1894, and practised his profession up to 1900. By order of the Lord Chancellor of Ireland made on the 14th May, 1900, his name was at his own request struck off the roll of solicitors in order thzlt he might apply for admission to the Bar. In 1900 he was called to the Bar and in 1908 became a King's Counsel. He was appointed Solicitor-General for Ireland in the year 1914 and Attorney-General in 1917, which office he held until the year 1918 when he was appointed to be a puisne Judge of the Chancery Division of the then High Court in Ireland and, a few months later, he was promoted to be one of the Lord Justices of the then Court of Appeal in Ireland. He continued to occupy the position of a Lord Justice of Appeal until 1924 when his office (by virtue of a change of regime) came to an end. He was not appointed to be a Judge of any of the Courts of the new Free State and accordingly he contended that his office had been terminated "com-