Justice v. The Law

The posthumously published thoughts of Mr Justice Sean O’Leary, former judge of the High Court, make interesting reading for the layman, particularly his criticism of the Supreme Court in the Mr A case.

An abiding memory of that case was the procession of eminent Senior Counsels who populated the broadcast media and, with varying levels of exasperation, tried to explain that Joe Public was confusing justice and the law. In the minds of the lawyers, these are clearly two very different concepts.

On the one hand, Joe Public is constantly confused by the ability of judges of all courts to dismiss charges on the slightest of legal technicalities, simultaneously discharging defendants who have clearly broken the law and enriching lawyers who have found some minor loophole. The current system encourages defendants to go all the way in the legal process in the hope that some minor defect may save them. This clogs up the courts and vastly increases the associated costs of running the legal system.

On the other hand, the Supreme Court, in arriving at their decision, was perceived by Joe Public as having delivered justice, even if the lawyers thought it was not necessarily in accordance with the law.

Mr Justice O’Leary (and the Irish Times editorial of 4th January) absolves the Minister for Justice and the Attorney General of any responsibility for the difficulties that arose when the courts struck down the constitutionality of the existing statutory rape legislation. Surely it is the responsibility of Government to create the law and the courts to interpret it? The potential difficulties with the then existing legislation and the likelihood of a constitutional challenge had been highlighted in legal journals, long before the actual case was taken.

So how could Mr Justice O’Leary condemn the Supreme Courts judges for their decision in the Mr A case, on the basis that no offence in law existed and therefore the plaintiff should have been successful and released from prison, while at the same time absolving the chief law officers of the Government from any responsibility to have corrected the defect in the existing law? Surely these are contradictory positions?

And finally, if the function of the courts is to adjudicate on the law, rather than concern itself with the delivery of justice, why are judges still accorded the address of “Mr Justice” etc..? From now on let’s just make it plain “Judge”.