Ann Ryan died on 15 March 1996. She was the wife of John Ryan and they had two young children. On 6 November 1996, by order of the District Court, Philip Sheedy, an architect working for South Dublin County Council, was returned for trial to the Dublin Circuit Criminal Court charged with offences under the Road Traffic Acts relating to the death of Anne Ryan. Criminal proceedings brought against Mr. Sheedy were subsequently adjourned on various occasions to the Dublin Circuit Criminal Court before being listed for arraignment before the then Judge Cyril Kelly on 11 June 1997. On that date Philip Sheedy pleaded guilty to the charge of dangerous driving causing death and to driving a mechanically propelled vehicle in a public place while having drunk alcohol in excess of the legal limit.
Following Philip Sheedy's plea of guilty, Judge Cyril Kelly adjourned the case for sentence until 20 October 1997 and ordered that medical reports and a probation and welfare report be obtained. Philip Sheedy was remanded on continuing bail. On 20 October 1997, Philip Sheedy came before Judge Joseph Matthews for sentencing. The court ordered that he be imprisoned for a period of four years on the charge of dangerous driving causing death and on that charge he was disqualified from holding a driving licence for 12 years. On the charge of driving while under the influence of alcohol, he was disqualified from holding a driving licence for a period of one year.
The court ordered that the four year prison sentence imposed on 20 October 1997 could be reviewed on 20 October 1999. If this order had not been changed, it automatically meant that Philip Sheedy, having served two years' imprisonment, had available to him the possibility of being released when his sentence came to be reviewed on 20 October 1999. This stated review date also, however, ensured that Philip Sheedy would, as a minimum, serve two years of his four year sentence and could not in the intervening period avail of the possibility of an early release from prison should such opportunity arise.
On 6 November 1997, Philip Sheedy's lawyers applied to Judge Matthews to vacate that part of the order made on 20 October 1997 which had designated 20 October 1999 as a review date. In response to this application, the review date was vacated or, to use non legal jargon, it was removed from the court order so there was no longer a date specifically designated by the court for the review of Sheedy's sentence. No appeal of any nature was filed on Philip Sheedy's behalf against the four year sentence imposed by the court.
Just over a year after the imposition of the sentence on Philip Sheedy, on 12 November 1998, his case was relisted in the Dublin Circuit Criminal Court before Judge Cyril Kelly. While it was Judge Kelly to whom the pleas of guilty had been made, Judge Matthews had imposed sentence. Judge Kelly, on 12 November 1998, ordered that the balance of the sentence imposed on 20 October 1997 on Philip Sheedy be suspended on Mr Sheedy's undertaking on his own bond of £100 that he would keep the peace and be of good behaviour for a period of three years.
The initiative to list the Sheedy case before Judge Cyril Kelly did not derive from the actions of the solicitor then acting for Philip Sheedy but was the result of a conversation between the then Supreme Court Judge, Hugh O'Flaherty, and the then Dublin County Registrar, Mr. Michael Quinlan. Following former Supreme Court Judge O'Flaherty mentioning the Sheedy case to Michael Quinlan, Mr. Quinlan contacted the solicitors acting for Mr. Philip Sheedy and informed them that Judge Kelly was awaiting the making of an application relating to Sheedy's sentence to be listed for his court. While Mr. Michael Quinlan and Mr. Philip Sheedy's solicitor, Mr. Michael Staines, have given different versions of the exact exchanges that took place between them, it is clear that Mr. Quinlan initiated the arrangements for the Sheedy case to be listed before Judge Cyril Kelly on 12 November 1998 and that the case would never have been so listed had former Supreme Court Judge O'Flaherty not discussed Sheedy's case with Mr. Michael Quinlan.
The family of the late Ann Ryan accidentally learnt of the early release of Philip Sheedy. They were understandably outraged and the general public was rightly scandalised when the circumstances relating to the early release of Philip Sheedy became known. The Office of the Director of Public Prosecutions denied it had been furnished with any advance notice of the possible reopening of the Sheedy case and brought proceedings in the High Court to quash the order made by Judge Kelly, which had suspended the sentence of Philip Sheedy and resulted in his release. On 25 March 1999, Philip Sheedy, through his lawyers, withdrew his opposition in the High Court to the quashing of the order made by which he was released. As a consequence, the High Court set aside Judge Kelly's order of 12 November 1998 and Mr Philip Sheedy returned to prison.
The manner in which the Philip Sheedy case had been dealt with in our courts resulted in substantial public controversy. On 1 April 1999, the Minister for Justice, Equality and Law Reform informed the Dáil that his Department was conducting an inquiry into what occurred and that officials of his Department had been in contact with the Dublin County Registrar responsible for the Dublin Circuit Court and also with the Office of the Chief State Solicitor. The House was also informed that separate inquiries had been instituted by the Chief Justice.
The circumstances surrounding the relisting of the Philip Sheedy case and Mr. Sheedy's early release in November 1998 were unprecedented. Chief Justice Liam Hamilton, in his report of 14 April 1999 into the affair, detailed the following questions as requiring an answer. First, how and why was the sentence imposed on Philip Sheedy by the court on 20 October 1997 listed for review on 12 November 1998 when the case had been finally dealt with by the order of the Circuit Criminal Court on 6 November 1997 vacating the provision for review of sentence? Second, how did it come to be listed before Judge Cyril Kelly and not Judge Matthews who had made the original order imposing sentence on 20 October 1997? Third, was any notice given to the Chief State Solicitor's Office with regard to either the re-entry or listing of the application or the nature of the application being made on Philip Sheedy's behalf? Fourth, was there any appearance in the court on 12 November 1998 on behalf of the Director of Public Prosecutions? Fifth, was the manner in which the case was dealt with by Judge Kelly and, sixth, was there any involvement by members or a member of the Judiciary in requesting or making arrangements for the listing or re-entry of the case on 12 November 1998?
Prior to publication by the Chief Justice of his report, interviews were undertaken by him with the central persons involved in the affair and written statements obtained from them detailing the nature of their involvement. On the basis of facts either admitted or established Chief Justice Hamilton concluded "that Mr. Justice O'Flaherty's intervention was inappropriate and unwise, that it left his motives and action open to misinterpretation and it was therefore damaging to the administration of justice".
The Chief Justice's conclusions in relation to Judge Cyril Kelly were even more damning. In the brief hearing of just over a minute that had taken place before him on 12 November 1998, Judge Kelly had explained or justified his early release of Philip Sheedy by referring to a psychiatrist's report on the court file. The implication was that some assessment had been undertaken of Mr. Sheedy's mental condition since his sentence to imprisonment which justified his release. The reality, as documented by the Chief Justice, was that no up to date medical or psychological report existed. Even more astonishingly, in response to a statement made by Mr. Sheedy's solicitor to the Chief Justice concerning events that occurred subsequent to Mr. Sheedy's release, Judge Kelly acknowledged that he had met Mr. Sheedy's counsel informally and suggested to him "that he should consider obtaining an up to date medical report", the implication being that such report should thereafter be placed on the Sheedy court file even though Mr. Sheedy had already been released.
Mr. Sheedy's solicitor, Mr. Michael Staines, properly refused to act on the judge's suggestion. The Chief Justice in page 22 of his report states: "whatever the motive for that suggestion may have been, having regard to the fact that the case had concluded in the Circuit Court, it was manifestly improper". To this day, it is not known why Judge Kelly during the brief court hearing of 12 November 1998 made reference to a non-existent psychological report or why, subsequent to the release of Mr. Philip Sheedy, he improperly proposed to Mr. Sheedy's counsel that an updated report be obtained.
In releasing Philip Sheedy at the hearing of 12 November 1998, Judge Kelly heard no submissions either on behalf of the convicted Philip Sheedy or on the State's behalf. Chief Justice Hamilton concluded that "by announcing his decision without allowing either party to make prior submissions concerning the case, the learned trial Judge [that is, Judge Cyril Kelly] deprived himself of any opportunity to learn from proper sources what the proper condition of the accused was". To this day, it is unknown why Judge Cyril Kelly made a decision to release Philip Sheedy without any submission first being made to the court on Philip Sheedy's behalf that he be released or without ensuring that counsel representing the State had an opportunity to address in court whether the State agreed with or opposed Philip Sheedy's early release.
In the context of Judge Matthews still being a sitting member of the Circuit Court, any application made to that court on Philip Sheedy's behalf for early release should have been made to Judge Matthews as the sentencing judge. As the designated sentence review date had in November 1997 been deleted from the original court order made in October 1997, as far as the Dublin Circuit Criminal Court was concerned, the Sheedy case was over. Just as there was no basis for any application being properly made to Judge Matthews to release Philip Sheedy in 1998, there was no basis at all for such application coming before Judge Cyril Kelly.
In response to the Chief Justice's inquiries, the then Judge Kelly expressed the view that it was not an unusual practice for a Circuit Court judge to make orders where another Circuit Court judge had previously made an order in a criminal case previously determined. The President of the Circuit Court and Judge Joseph Matthews disagreed entirely with this view. The Chief Justice in his report concluded that Judge Kelly should not in the circumstances of the Sheedy case have entered on a review of a sentence imposed by one of his colleagues. The question remains unanswered as to why Judge Cyril Kelly undertook such review and why he represented to the Chief Justice that there was nothing extraordinary in his doing so. The Chief Justice concluded that Judge Cyril Kelly having entered on the review of Philip Sheedy's sentence "failed to conduct the case in a manner befitting a judge" and that his "handling of this matter compromised the administration of justice".
Six days after publication of the Chief Justice's report, Judge Hugh O'Flaherty and Judge Cyril Kelly resigned. Following publication of the report into the Sheedy affair by the Department of Justice, Equality and Law Reform, the Dublin County Registrar, Mr. Michael Quinlan, also resigned. Why then should Dáil Éireann further concern itself with this affair? The reason is that the circumstances surrounding the early release of Philip Sheedy seriously undermined the integrity of our criminal justice system. Credence was given to the view that should one break the law and be sentenced to a term of imprisonment, if one has the right contacts and connections, one would not have to complete one's sentence and one would be facilitated by members of the Judiciary in obtaining an early release from pri son. A body blow was delivered to the concept of judicial impartiality and the constitutional principle of equality before the law.
In a constitutional democracy based on the separation of powers, for the Judiciary to maintain public credibility, judges must be seen to be impartial and independent in carrying out their duties. It is crucial that where there are allegations of judicial misconduct, those allegations are properly investigated in so far as is possible for the full facts to become known. With regard to the early release of Philip Sheedy, there remain far too many questions unanswered. The Chief Justice was constrained in the approach he could take in the inquiry that was so speedily and effectively undertaken by him and when it came to determining who was telling the truth in the context of what was said in individual interviews and contained in written statements, he acknowledged:
as is apparent from a consideration of the documents annexed to this Report, a number of disputed questions of fact arise in this case. It is not possible for me on the basis of written statements and individual interviews to resolve these disputed questions of fact, nor is it appropriate that I should attempt to do so. The resolution of disputed questions of fact would necessitate an inquiry of a nature different from that instituted by me wherein the parties involved in such disputed facts would in the interests of fair procedures be entitled to the right of cross examination.
Moreover, paragraph 1.5 of the report of the Department of Justice, Equality and Law Reform into the Sheedy affair sought by the Minister for Justice, Equality and Law Reform states: "We have been able to reach certain conclusions, in relation to the central issues we examined and we believe that one of these is so serious that an immediate report must be made, even if it is the case that the report, taken as a whole, leaves questions unanswered that will, no doubt, be raised in the period ahead."
I have referred to some of the unanswered questions. Questions not yet detailed of substantial importance derive from the statement made by Judge Joseph Matthews to the Chief Justice when it is contrasted with statements made by former Judge Cyril Kelly. In his statement of 5 April, Judge Matthews details a telephone call received by him in his chambers from Judge Kelly on the morning of 20 October 1997 asking him if he would be free to take a plea of guilty case, which turned out to be the Sheedy case, in the lunch recess. He details that Judge Kelly said that counsel on both sides of the case had been to his chambers on various occasions to discuss various aspects of the case and also issues concerning a compensation payment that might be made to a victim. Judge Matthews states that in his telephone call, Judge Kelly expressed the view that "he felt too close to the case and would rather I dealt with it", that is, that Judge Matthews dealt with it. Judge Matthews reports Judge Kelly as saying to him that he "felt it was a suitable case for a suspended sentence".
Judge Matthews records that the Sheedy file was furnished to him and having read that file he formed the view that it could not on any basis be a case for a suspended sentence. He states that he subsequently that day visited Judge Kelly in his chambers and so informed him. Judge Kelly in a response of 13 April documented in the Chief Justice's report mentions that he made contact by telephone with Judge Matthews and asked him to "take a guilty plea in a dangerous driving causing death case", but denies that he had the conversation recounted by Judge Matthews and denies that he had seen counsel on both sides of the case in his chambers on various occasions to discuss aspects of the case and the issues of financial compensation. He also denies that he had said he was too close to the case and preferred that Judge Matthews dealt with it. He further denies that he told Judge Matthews that he believed the case was suitable for a suspended sentence and he does not accept that Judge Matthews came to see him in his chambers.
If it is accepted that Judge Joseph Matthews accurately recollects the events that occurred, a question must be asked as to why Judge Cyril Kelly did not accept Judge Matthews' account of these events. If Judge Cyril Kelly requested Judge Matthews to deal with sentencing in the Sheedy case in 1997 because he, Judge Kelly, was too close to the case, why did Judge Kelly regard it as appropriate to grant the early release of Philip Sheedy 12 months later? If Judge Kelly was familiar with the Sheedy file, as he acknowledges, and if he did not regard himself as too close to the case, why did he transfer the file to Judge Matthews for sentencing in the first place? If Judge Cyril Kelly's account of events is accurate and Judge Matthews' account is not, why would Judge Matthews so misrepresent what occurred?
Shortly after the release of Philip Sheedy, Cyril Kelly was appointed as a Judge of the High Court. It was as a member of the High Court Judiciary that he resigned. Judge Joseph Matthews remains a respected member of the Circuit Court Judiciary and it is in the public interest that a mechanism be put in place to unravel and get to the truth of what occurred in the context of the conflicting accounts given by Judge Matthews and former Judge Kelly. The existence of conflicting and irreconcilable statements relating to events relevant to the original sentencing of Philip Sheedy and the many unanswered questions concerning his early release continue to cast a shadow over the administration of justice in this State.
Article 35.2 of the Constitution provides that "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Our Constitution prescribes a system of separation of powers. It is essential that judicial decisions made and judgments delivered are not open to question by way of independent inquiries conducted by or ordered by the Houses of the Oireachtas or the Government of the day. Decisions made and judgments delivered can be subject to an appellate process and should be open only to review and reversal by the relevant court to which an appeal can be made. However, our law has for long distinguished between judicial decisions made and judgments delivered on the one hand and issues relating to the conduct of members of the Judiciary on the other. Section 21 of the Courts of Justice (District Court) Act, 1946, provides (a) for a mechanism whereby the Minister for Justice may request the Chief Justice to appoint a judge to investigate the condition of health, either physical or mental, of a judge of the District Court or (b) to inquire into the conduct, whether in the execution of his office or otherwise, of a District Court judge, either generally or on a particular occasion.
The Courts (Supplemental Provisions) Act, 1961, also contains provisions in sections 10 and 36 addressing issues of conduct relating to District Court judges. Section 21 of the 1946 Act has been utilised to facilitate the recent inquiry into allegations made against District Court Judge O'Buachalla. The attempt made by the Joint Committee on Justice, Equality, Defence and Women's Rights to investigate the Sheedy affair ran into the sand as a consequence of legal advice given to the committee that it would be unconstitutional for the committee to hold hearings and to ask that former Supreme Court Judge O'Flaherty and former High Court Judge Cyril Kelly come before it to answer questions. This advice was based on the provisions contained in Article 35.2 of the Constitution. However, it is clear that no detailed consideration was given by the committee to the possibility of differentiating between judicial decision-making and judgment delivering as compared to judicial conduct.
It is also clear, even if such a distinction had been made by it, that the Joint Committee on Justice, Equality, Defence and Women's Rights was not equipped to address comprehensively the unanswered questions concerning the Sheedy affair. Even if the committee had not received legal advice that blocked its advancing the issue, little progress could have been made by it as the compellability legislation – even if extended to it – does not apply to members or former members of the Judiciary.
Replying to questions in Dáil Éireann on 20 April 1999 on the published reports into the Sheedy affair, the Minister for Justice, Equality and Law Reform stated "it must be clear to everyone that a tribunal of inquiry is necessary if the disputed facts are to be resolved".
To bring closure to this issue and to provide a forum within which the full story can become known, Fine Gael is calling on the Government to bring before this House without delay legislation to establish a special inquiry specifically into the Sheedy affair, and for such an inquiry to be chaired by a judge appointed from outside the State. We propose that the inquiry be chaired by a judge from outside the State as we believe to ask a current member of the Judiciary to undertake such an inquiry would place him or her in an invidious position. We suggest it be a three person inquiry, that it should be conferred with express powers to compel witnesses and call for documents and that it should be authorised to fully inquire into the circumstances leading to the early release of Philip Sheedy and be given express powers to consider the conduct of members of the Judiciary involved and the reason why they so conducted themselves.
It can be accurately asserted that Article 35.2 places no barrier in the way of legislation providing for such an inquiry or an inquiry investigating the conduct of Judge Cyril Kelly in the context of any dealings between him and Judge Joseph Matthews relating to the Sheedy case; the nature of the hearing that took place before him in the Dublin Circuit Criminal Court on 12 November 1998; whether any other case in the past was similarly dealt with by him in the context of his assertion that the procedure adopted by him was not unusual; and his suggestion to Philip Sheedy's barrister that a new psychiatric report be obtained. The inquiry can essentially seek to ascertain why Judge Cyril Kelly so conducted himself without being at risk of constitutional impropriety.
In relation to the former Supreme Court Judge Hugh O'Flaherty, it is entirely unacceptable that he has made himself available to answer questions in the national media but that to date no investigative forum has been put in place in which he can be questioned concerning his involvement in this affair. It is curious that prior to his resignation from the Supreme Court Mr. O'Flaherty offered to come before the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights and that subsequent to his resignation he refused to do so, citing constitutional reasons. As his involvement, based on his own statements to the Chief Justice, resulted from a street conversation with associates of Philip Sheedy and a subsequent conversation with the county registrar, it is difficult to understand what constitutional difficulties stand in the way of Mr. O'Flaherty answering questions in an appropriate forum on what occurred. There can be no suggestion that his involvement in the Philip Sheedy affair was undertaken in the exercise of a judicial function.
The disciplinary procedures available under the Acts of 1946 and 1961 to investigate allegations of misconduct against district judges were already referred to. In the context of tonight's motion it is also worth noting that the constitutional review body chaired by Dr. T. K. Whitaker, which published its report in 1996, dealt at length with the issue of judicial independence. It was stated that the group was:
of the opinion that such "disciplinary" provisions short of impeachment, as at present apply to the District Court are probably not inconsistent with Article 52 of the Constitution or otherwise unconstitutional.
in the context of the view of the Whitaker committee, if it is accepted there is no constitutional difficulty in investigating allegations of misconduct made against district judges, how can it be suggested that an inquiry to investigate allegations of misconduct made against judges of the Circuit, High or Supreme Court could be unconstitutional? How can it be argued that Article 35.2 could present a barrier of any nature to such an inquiry? It is also in this context worth noting that both the Whitaker committee and the Oireachtas Committee on the Constitution in its report of November 1999 on the courts and the Judiciary propose that to put such considerations beyond doubt, Article 35.2 of the Constitution should be amended to allow for the review of judicial conduct as distinct from judicial decisions. It is worth noting that to date the Government has not seen fit to act on the recommendation made by either the Whitaker committee in 1996 or the Oireachtas Committee on the Constitution in 1999.
The death of Ann Ryan was an appalling tragedy for her husband John, their two young children and all their family. The early release of Philip Sheedy in extraordinary circumstances added to the trauma suffered by the Ryan family and rightly caused public outrage. On a different scale and for different reasons, their involvement in Philip Sheedy's court proceedings was a personal tragedy for both Hugh O'Flaherty and Cyril Kelly. What were up to then distinguished careers on the bench were prematurely and unexpectedly ended. Confronted by the conclusions in the Chief Justice's report and the possibility of impeachment, each rightly concluded that they should resign from judicial office. I can understand that the Dáil again reopening this issue may be a cause of further distress and this I greatly regret. However, it is not acceptable that so many questions remain unanswered. It is not acceptable that we still do not know why Judge Cyril Kelly behaved as he did with regard to the Sheedy case and there remains on public record totally conflicting versions of events relating to the original sentencing of Philip Sheedy in the statements of Judge Joseph Matthews and former Judge Kelly. It is time we learnt the full truth.
It is time to restore public confidence in our justice system. It is time to accept that everyone in public life, including judges, are publicly accountable for the manner in which they conduct themselves in public office. The Minister for Justice, Equality and Law Reform acknowledged in this House on 20 April 1999 that the full truth will only be known as a result of an inquiry into the affair. It is time for him for explain why to date he has not brought proposals before this House on the Government's behalf for such an inquiry to bring closure to the Sheedy affair. He should also explain why to date he has failed to put in place the new disciplinary code for judges promised by him in the Dáil on 20 April immediately following the resignation of Judges O'Flaherty and Kelly. The report into the Sheedy affair prepared by his Department entitled "Avoiding a Repetition" promised the introduction of reforms which the Minister, never slow to praise himself, described as "far reaching, comprehensive and positive". The Minister should explain why one and a half years later, none of these proposals have been implemented. He should explain why reality and his rhetoric have lost touch with each other.
The Minister for Justice in various statements both inside and outside the House and when answering questions on the Sheedy affair expressed grave concerns about what had occurred. The credibility of the Minister's publicly expressed concerned was substantially undermined by the Government's proposal last June to appoint former Supreme Court Judge Hugh O'Flaherty to the European Investment Bank. This proposed appointment appeared to give Government approval to Hugh O'Flaherty's refusal to explain his actions to the Oireachtas joint committee when asked to do so. If the Government believes it is in the public interest that the full truth behind the Sheedy affair be known, it should support the motion I have tabled on behalf of Fine Gael and withdraw the ineffectual and meaningless amendment.