Derek Mooney: Less Justice And More Just Us

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Top from left: Former Fine Gael Minister for Justice Charles Flanagan, Chief Justice Frank Clarke and Supreme Court Justice Seamus Woulfe; Derek Mooney

An accused youth is slouched in the District Court dock, noisily chewing gum. “Tell him to stop masticating” says the judge to the court officer. Dutifully, the officer marches over to the accused and says: “The judge says for you to get your hands out of your pockets”

Sorry. Wrong old joke.

Another accused, an old lag this time, is standing in the same District Court dock. “Do you plead guilty or not guilty”, asks the judge. “Do you mind if I listen to the evidence first?” comes the reply.

This joke kept popping into my head as I read extracts from the testimony Mr Justice Woulfe gave to former Chief Justice, Susan Denham. The transcript of his testimony appears as an appendix to Ms Denham’s report.

Ms Denham had been asked to “review” Mr Woulfe’s attendance at the now infamous Oireachtas golf society dinner in Clifden. “Review” appears with inverted commas as Mr Justice Woulfe and his counsel were keen to stress (taking up about 8 of the 140 page transcript) that the process was a review and not an inquiry, an adjudication or a determination of anyone’s rights.

To be fair, when you read them in full, Mr Justice Woulfe’s contributions are a cracking good read. He speaks frankly and directly and is often quite funny. They offer a rare insight into to the mind of a member of the Supreme Court. The bad news is that they also raise a lot of new questions.

But first, let’s look at some of the original questions, posed by Ms Denham and Mr Woulfe’s often candid answers.

I say candid as they contained some very colourful observations which have, understandably, made their way into the Saturday and Sunday papers.

These include his OTT criticism of the media coverage, saying he was“..appalled at the kind of media treatment of the [Oireachtas Golf] society event and the it’s presented, in some way it’s like a Ku Klux Klan now” and his loaded commentary on how the Covid19 guidelines had been changed the day before the event: “…you’ll recall the Taoiseach’s phrase, or the Tánaiste’s phrase – everybody falls into that mistake now – “if we keep on governing like this we won’t be governing very long.”

A comment that takes on a new and heightened significance as we seem poised on the precipice of a Stage 5 lockdown.

As well as picking up on his commentary, the newspapers also picked up on his penchant for dropping the name of almost every serving and retired politician he had ever met at these events, including him reminding Ms Denham that she had once sat at the same table as then Minister Frances Fitzgerald at a Bar Council Chairman’s dinner.

This would appear to have been a pointed reference to the argument that the political and the judicial worlds should keep separate. It’s not an argument with which Mr Justice Woulfe seems to agree, stating later in the transcript that:

“I can’t see the difference between the Inns hosting a social event and politicians going there and politicians hosting a social event and judges going there”.

I wonder just how flattering the Inns will consider being likened to an ad hoc and soon to be defunct Oireachtas golf society.

What is abundantly clear from reading his responses to Ms Denham’s gentle questioning is that Mr Justice Woulfe cannot see and does not believe that he has done something wrong. He says this explicitly: “But it is fair to say that it appears now, objectively, that there was no breach by the organisers, let alone by me.”

It’s a most unique viewpoint from the former Attorney General. Nor is it his only unique viewpoint or observation – a point to which I will later return.

Throughout the discussion Mr Justice Woulfe says his actions both in playing golf and attending the golf dinner, a dinner he only really learned about as he arrived to play golf, were above reproach and done with the best possible motives.

But the issue is not what motivated him to play golf, but rather how he allowed himself to attend an indoor event at the hotel, namely the dinner at 9pm that breached the latest Covid regulations. It’s about judgement, not motivation.

On that score he did not convince the former Chief Justice. Ms Denham concludes that:

“Mr. Justice Woulfe did not consider separately the propriety, or if there would be an appearance of impropriety, for a judge of the Supreme Court to attend a celebratory dinner in a public place while there is a pandemic in the State. He should have considered whether the community may regard the judge’s participation as an impropriety.”

But, Ms Denham also concludes:

Mr. Justice Woulfe did nothing involving impropriety such as would justify calls for his resignation from office. Such a step would be unjust and disproportionate.

This is an opinion with which many other people would disagree, including several members of the Bar. It is not the outcome many were expecting.

Thus far the Clifden hotel dinner – and it is important to differentiate between playing golf over the two days and attending the golf dinner on the Wednesday night – has resulted in the resignation of a senior minister, Dara Calleary; an EU commissioner, Phil Hogan; the Seanad Leas Cathaorigh, Jerry Buttimer; not to mention six Senators losing the whip and the end of Sean O’Rourke’s broadcasting career. Was this all disproportionate?

Let’s turn the argument around. Is it not disproportionate given the circumstances of the dinner (let’s not forget that many who played golf, such as Enda Kenny, decided against attending the dinner) that there is no effective penalty for Mr Justice Woulfe?

Is it not disproportionate that Mr Woulfe keep his job while others lose theirs? Mr Woulfe’s dogged refusal to see or acknowledge “any breach by the organisers, let alone by me” stands in marked contrast to the response of former minister Dara Calleary.

Dara acted speedily and effectively to acknowledge his own lapse of judgement and to stop it from politically damaging a government he had just joined. He saw the options were binary. There were no intermediate levels of proportionality. You resign and protect the dignity of the institution or you tough it out and risk damaging it. It is that black and white.

Rather than gainsaying or questioning Mr Calleary’s action, Mr Justice Woulfe should see it as a template. A template where someone who has just joined a crucial and honoured institution of the State puts the welfare and public respect of that institution above their own interests.

It is on this specific point that Mr Justice Woulfe offers some of the other intriguing viewpoints I mentioned earlier. Though it may be fairer and more proportionate to describe these as speculation. It is also where his comments raise more questions that originally considered by Ms Denham

On page 113 of the transcript (line 1) Mr Justice Woulfe boldly speculates that Minister Calleary might have “…been forced to resign by the Taoiseach”. It’s an odd position to take and expound in a formal review process looking into whether you keep your job or not… unless you have some sound basis for expressing it.

It gets odder when you scroll ahead to lines 23-25 on page 117. There he offers another theory, saying “…perhaps Minister Calleary was forced out on a false premise on the Thursday morning, it may well have been.”

This point is then quickly followed (at line 26) by a “…look, we won’t speculate.”

Like the joke at the start, every time I read this line I hear what a dear old friend used to say just before they delivered the most shamelessly salacious and questionable bit of gossip: “I’m not one to talk… but wait ‘til I tellya”

But, there’s more.

By line 22 on Page 132 Mr Justice Woulfe is offering yet another interpretation, this time going to the heart of today’s politics, opining:

“And one thing that worries me is my understanding is that as of last week one of the organisers told me that the Tánaiste at a meeting was insisting that the relevant rule was six people on that Wednesday night and that’s why Minister Calleary was forced to resign.”

Really? Judicial restraint be damned, huh?

The Woulfe transcript raises many questions, for him and for others. What is his basis for speculating on why Dara Calleary resigned? Did the Taoiseach push him? Or did the Tánaiste demand it? Where did Mr Woulfe hear these things? Why did he think these were pertinent to Ms Denham’s review and worth mentioning?

Could Ms Denham’s review find itself being gutted by its own appendix?

Derek Mooney is a communications and public affairs consultant. He previously served as a Ministerial Adviser to the Fianna Fáil-led government 2004 – 2010.  His column appears here every Monday.Follow Derek on Twitter: @dsmooney

Rollingnews

Meanwhile…

This morning.

18 thoughts on “Derek Mooney: Less Justice And More Just Us

  1. Cú Chulainn

    Denham had no ability to censure him, so she gave him a big long rope and he did the rest. I’d be surprised if lasts long.

    Reply
    1. Vanessanelle

      I doubt that was her strategy

      They just don’t like having to question themselves/ each other
      and having to answer to the likes of us
      its a beneath them kinda thing

      The best hope is the Courts Service will have him in for a chat downstairs in Phoenix House

      Reply
  2. Cian

    Is it not disproportionate that Mr Woulfe keep his job while others lose theirs?
    I don’t think you are comparing like-with-like.
    – The Senators lost the whip…. which is… a slap on the wrists.
    – Dara Calleary lost a Ministry… but is still a TD, and if he keeps a low profile would be back on the front bench is a few years – hell – he could still become Taoiseach.
    – Phil Hogan lost most – but that was as much to do with all the rest of the rule-breaking and lying about the week he was back in Ireland.
    – If Woulfe were to resign as Supreme Court judge it is unlikely he would ever be re-considered for the role, so is a bigger punishment than the others. IMO.

    Reply
    1. Vanessanelle

      Woulfe can still go back to the Bar and collect SC fees for briefs
      of which he’ll not be short of

      so cop on a bit C!an
      he hasn’t been stripped of a livelihood nor his professional credentials nor licence to practice
      He’s not going to be signing on in any Dole office
      Or facing any fitness to practice tribunals inside the Law Library
      Or facing any litigation for professional incompetence

      bigger punishment my …
      would ya get over yerselves there

      Reply
      1. Cian

        I never said any of that.

        He will lose the opportunity to be a judge. It’s not about the money (a SC earns a hell of a lot more than a judge).

        Reply
        1. Vanessanelle

          bigger punishment is what you said

          there is no punishment
          a bit of discommoding ’cause he had to put together a case for himself
          was he suspended without pay for the few weeks it took?
          Was He fluic

          So he might have to step down as a Supreme
          a lad that hasn’t done one day on a bench prior to his ascension straight onto the Supreme Court
          you’d need to get a get a grip of yourself C!an

          No Motions, or Co Registrar with the home repossessions
          No rounds of the Districts with the shop lifters
          No Circuits or High Courts with Compos cases, Chancery chancers and lads suing journalists, or Criminal Court Rapes

          There is not one Judge on a bench, save for Maire Whelan
          that will regret him losing the opportunity to be a judge

          Let see him make himself available as a locum County Registrar or a touring District if he’s that dissapointed here
          They’d be no objections or criticisms of him then

          Reply
          1. Cian

            I don’t disagree with you. He should have worked his way through the different courts and hopefully he will act as a warning never to put someone straight in as a Supreme Court Judge.

            You are going off on a tangent.

            I stand by what I said. Being dropped from the Supreme Court is a greater punishment that either loosing the whip (O.M. actual G.) or the loss of a cabinet seat.

          2. Vanessanelle

            Well I don’t think it is

            Since he didn’t have to go around his constituency looking for votes to even put himself into contention for either being under a Party Whip or getting a Ministerial
            Or maintain a constituency office
            or hop skip and jump to a Party line to get on the ballots in the first place

            Not once through this whole thing has Woulfe been subjected to the voters or the general public
            NOT ONCE

            His entire future in this gig, or not, rests 100% on decisions being made out of reach of the public eye

            Just like his appointment in the first place

            Something else, well more of a question actually
            Did Woulfe even start to hear any cases?
            Or was just the Photo Op in his robes with Frank

  3. White Dove

    Woulfe is completely out of touch.

    However nothing compared to this:
    https://www.broadsheet.ie/2016/04/29/the-chief-justice-her-brother-and-how-george-gibney-got-away/

    I would consider a Court of Criminal Appeal judge hearing a case in which her brother appeared for the defendant a far more serious breach of any kind of justice than anything Woulfe has done so far. And to put that very judge adjudicating on Woulfe’s case is laughable. Unlike Woulfe’s situation, the decision to release George Gibney had consequences resulting in the ruination of at least one life.

    Interesting that the members of the Law Library who are prepared to talk anonymously to the newspapers re. Woulfe have nothing to say on this issue.

    The fault in my opinion was not just with Susan Denham but equally so with the other judges who also sat on the court with her knowing her connection to the defence counsel, and the then Chief Justice who assigned her for this case, and indeed Patrick Gageby and the DPP who failed to object given the obvious conflict of interest. There was already decided authority which should have precluded this. I have sympathy for Susan Denham but it is a bit rich for her to accept a brief to report on another judge’s breach of Bangladore without dealing with this very serious issue coincidentally back in the news the same month.

    Would there be this silence from the Irish Times if she and her brother weren’t the children of Douglas Gageby? Of course there wouldn’t.

    It would be more interesting to see the Bar and the Bench address this very serious issue which is currently circulating on twitter and does real and serious damage to the legal profession rather than going after the easy target of Woulfe.

    Reply
    1. Cú Chulainn

      Completely. He’ll be gone soon and rightly so. His statement is either a pack of mistruths or he’s an idiot who shouldn’t be anywhere near the bench. Also, I have no time for Ms. Denham either..

      Reply
      1. Kate

        Gibney couldn’t possibly remember raping or abusing a child on a certain night or day in his car , or in a room at the swimming pool , or on a swimming trip abroad or in their own home , or in the back seat of a family car when a parent was driving when 27 counts of indecency /rape , involving 7 youngsters were dismissed due to alleged time lapse. It’s an eye opener that Gibney was replaced by notorious paedophile Derry o Rourke.
        The irony and utter hypocricy that same judge is now calling for Ethical guidelines /Judicial code of conduct as a matter of urgency over a feicin dinner.

        Reply
        1. White Dove

          Kate, I couldn’t agree more, particularly when the case on behalf of Gibney was argued by none other than her brother – how can her hearing this case possibly be reconciled with the Bangalore Convention which she cites extensively in her report or indeed with earlier jurisprudence in the Cassidy case. The Chief justice, the DPP and the other judges on the court were equally at fault but they are not still among us making decisions on what a judge should and should not do. Silence on this will do far more damage to the legal profession than anything Seamus Woulfe did or did not do at Clifden.

          Reply
  4. Joe

    Excellent article by Mr Mooney,he articulates very well what any fair minded person would think.
    Mr Woulfe now has zero credibility as a judge. He should do the honourable thing.

    It really highlights “One law for us, another for them”

    Reply
  5. delacaravanio

    That transcript is shocking. This portion in particular (on p. 110):

    With the benefit of hindsight of course I would not have gone to the dinner because of the vilification that I have suffered in the medial since and the complete lack of fair procedures by the media and numerous politicians, including [redacted]”.

    Anyone with a modicum of human empathy and common sense would have said that, with the benefit of hindsight, they would not have gone to the dinner as they realised the hurt it would cause so many sacrificing, and particularly those who lost loved ones. This entitled arse instead is sorry that he was caught.

    What a pillock.

    Reply
    1. Stephen

      “This entitled arse instead is sorry that he was caught.”

      This sums it up, he still isn’t sorry for what he did and sees no wrong with it, that is not the sort of judegement that should be making the decisions he has to in court

      Reply

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