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GAZETTE
SEPTEMBER 1976
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-
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.
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