Chief Justice Susan Denham (left) and Patrick Gageby SC
Earlier this year we highlighted the unusual circumstances surrounding the Supreme Court decision that allowed suspected paedophile swimming coach Geoge Gibney to escape justice.
The decision in November 1994 granted Mr Gibney leave to apply for judicial review on the basis that his right to a fair trial was infringed because of a delay in reporting the alleged offences.
This was the first case in Ireland to recognise that a delay in making a complaint of sexual abuse could preclude a subsequent prosecution.
What also marked out this case was that Patrick Gageby, one of Mr Gibney’s barristers, appeared before his own sister, Susan Denham, who was on the Supreme Court that day.
And court records show this hearing was not the only case in which Mr Gageby has appeared before his sister.
It was one of many.
In 1991 Susan Denham was appointed a High Court judge and a year later was appointed to the Supreme Court. Thomas Finlay was Chief Justice at the time and had responsibility for assigning judges to cases.
Ms Denham subsequently sat as a judge on at least two cases in which Patrick Gageby appeared as a Junior Counsel.
G v DPP  1 IR 374
People v Rock  1 ILRM 66
Mr Gageby became a senior counsel in 1995 and the practice continued under successive Chief Justices.
1994: Liam Hamilton appointed Chief Justice.
Larkin v O’Dea  2 IR 485
Incorporated Law Society of Ireland v Carroll  3 IR 145
O’Leary v A-G  1 IR 254
DPP v PG  1 IR 281
DPP v McDonagh  1 IR 565
DPP v McGinley 1998 WJSC 5791
POC v DPP  3 IR 87
2000: Ronan Keane appointed Chief Justice.
DPP v Edgeworth  2 IR
FMcK v AF  2 ILRM 203
2004: John Murray appointed Chief Justice.
O’Brien v DPP  2 ILRM 444
Gilligan v DPP  2 IR 389
Carmody v Minister for Justice  1 IR 635
These cases represent a relatively small fraction of Mr Gageby’s busy criminal practice during this period. However they involved key issues of constitutional and criminal law.
The number of judges on the Supreme Court has increased over the last few years, but there would always have been enough judges to avoid Ms Denham having to deal with cases involving her brother.
In July 2011 Susan Denham was appointed Chief Justice and the practice appears to have ceased.
Irish law is subject to general rules of fair procedure, including the principle ‘nemo iudex in causa sua‘ (no man shall be a judge in his own cause), which provides for the quashing of judicial decisions made in ‘circumstances which would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased’.
Last year, the Supreme Court quashed a decision of a High Court judge who had held shares in one of the companies party to the litigation in circumstances where he had mistakenly failed to disclose the full extent of that shareholding.
In this instance Susan Denham, now Chief Justice, gave the majority verdict.
Ms Denham said objective bias was a matter not just for the parties, or the trial judge, but brought in issues regarding:
“…the fundamental concern for the manifest impartial administration of justice and the confidence which the people rest in the judiciary.”