Newly appointed Chief Justice Donal O'Donnell has taken over the helm of the Supreme Court at a time of challenge and opportunity.
These include leading the Judicial Council through the introduction of the first-ever complaints system against judges, presiding over what some observers regard as a potentially "very exciting" Supreme Court, working with the Courts Service on an ambitious modernisation programme and overseeing the gradual resumption of physical court hearings after the Covid-19 lockdowns.
The Belfast-born Chief Justice, who turns 64 shortly, is one of the State’s foremost constitutional law specialists. He has served as a Supreme Court judge since 2010 having been appointed directly from the Bar where he was involved in many high-profile cases, regularly appearing for the State.
A former member of the Law Reform Commission, O'Donnell is regarded by many as a cautious innovator. Others describe him as pragmatic, socially progressive and economically conservative, with a strong commitment to public service.
One judicial colleague described him as “a rock of common sense”. Another source said he commands widespread respect among the legal community in general and the judiciary in particular. “When Donal talks, everyone listens. Few disagree with him.”
He will lead the Judicial Council in preparing for the introduction, by next summer, of a new complaints system against judges. In advance of that, the council's Judicial Conduct Committee has drafted a code of conduct and ethics for judges which has been put before the board of the council and is being circulated for consideration by judges. It must be approved by a majority of the council prior to the complaints system becoming operational.
The Chief Justice is a strong supporter of the first-ever training regime for judges and has participated in some of the training programmes. He is also very positive about the Supreme Court’s outreach programme, involving the court sitting in venues outside Dublin, and other initiatives aimed at making the court’s work known to a wider audience.
Provided the Covid-19 situation permits, the court is expected to sit in the new courthouse in Letterkenny and a number of other venues over the coming months.
Up to date
O’Donnell will preside over a nine-member Supreme Court which, following the establishment of the Court of Appeal in 2014, is up to date with appeal hearings.
The composition of the Supreme Court, and the fact it now only hears appeals deemed by it to raise legal issues of general public importance, suggests "very exciting" times for observers of the court, according to Dr David Kenny, associate professor of law at Trinity College Dublin.
“It’s a brave person that predicts what the Supreme Court will do.”
Kenny, who described O'Donnell as having "a brilliant mind", is among many academics and lawyers who anticipate the court's newest appointee, Mr Justice Gerard Hogan, who sits for the first time on the court later this month, will make a valuable contribution to it.
An acknowledged constitutional law expert, Hogan served as a judge of the High Court and of the Court of Appeal before taking up the position of advocate general on the Court of Justice of the EU.
He has authored several judgments marking a sometimes more expansive interpretation of the Constitution than has been evident in some decisions of the current Supreme Court.
His judgment in the Bederev case, which declared unconstitutional a provision of the Misuse of Drugs Act making it an offence to sell a certain drug being sold in “head shops”, was overturned by the Supreme Court.
However, when the Court of Appeal rejected by two to one the significant NVH appeal, in which a man who spent years in direct provision challenged the absolute ban on asylum seekers seeking work, Hogan’s minority position finding a right to seek work was upheld by the Supreme Court in a 2017 judgment, authored by O’Donnell.
Unconstitutionality
Some innovative features of O’Donnell’s judgments, including in NVH, involved opting to defer a declaration of unconstitutionality to enable the government take action before a judgment takes effect. Opinion remains divided whether such deferred declarations are contrary to at least the spirit of the Constitution.
Opinion is also strongly divided about whether this Supreme Court has excessively rowed back the rights of accused persons, particularly since its 2015 landmark JC judgment when the court sharply split 4/3 to overturn the long-standing rule providing for the absolute exclusion of improperly obtained evidence unless there were “extraordinary excusing circumstances”.
O’Donnell authored the majority judgment which stated the courts had to strike a balance between remedying infringements of rights with their obligation to establish guilt or innocence in criminal trials, which later required admission of all relevant evidence. The effect of JC is that evidence obtained unconstitutionally can be admitted if gardaí and other officers of the State claim to have no knowledge of the breach.
Professor of Criminology at NUI Maynooth Claire Hamilton has described the majority ruling as introducing "an inadvertence standard" effectively placing those exercising statutory powers above the rest of us who are not permitted a defence of "I didn't mean it" or "I didn't know it was against the law".
Pendulum
Defenders of the majority’s approach argue, prior to JC, the pendulum had swung too far in favour of the rights of accused and there is now a better balance between the rights of accused persons and victims of crime. In that regard, they point to important Supreme Court judgments clarifying sentencing principles, including setting clear guidelines for sentencing of those convicted of rape and sexual assault offences.
The Supreme Court also includes Mr Justice Séamus Woulfe, whose involvement in the August 2020 “golfgate” controversy led to a delay of several months before he finally sat on the Supreme Court bench. Prior to that, he sat as a judge of the Court of Appeal and continues to sit as such on occasions.
Because of his former role as Attorney General before his direct appointment to the Supreme Court from the Bar in July 2020, Woulfe cannot be involved in hearing certain appeals before the Supreme Court. However, the court’s list for this term suggests he has been otherwise fully integrated into its work.
Despite marked tensions between him and his judicial colleagues at the peak of the golfgate crisis, particularly following former chief justice Frank Clarke’s call on Woulfe to resign, which the latter declined to do, sources suggest his Supreme Court colleagues are resigned to the status quo. “There’s still an absence of warmth towards him but the prevailing attitude appears to be, ‘We are where we are, let’s get on with it,’” one source said.
