The retiring president of the High Court has warned his fellow judges about the dangers of paralysing investigations into matters of serious public concern.
Speaking on his final day on the bench, Mr Justice Nicholas Kearns said judges and courts should not be excessively overactive or interventionist in areas where the boundaries of the judicial and executive function intersect.
His comments were made against a background of growing unease in the political system at the apparent inability of the commission of investigation established into the sale of Siteserv to get off the ground.
There is also concern at the fact that the Oireachtas banking inquiry is so constrained by legal considerations that it may not be able to make substantial findings or recommendations.
The ability of parliamentary inquiries to investigate matters of public interest and make adverse findings about individuals has been severely limited due to a Supreme Court decision that effectively shut down an Oireachtas inquiry into the shooting of John Carthy at Abbeylara in April 2000.
In their 2001 reserved judgment, a three-judge divisional court of the High Court upheld a challenge by 36 members of the Garda against the conduct of the inquiry.
The judges were the then president of the High Court, Mr Justice Frederick Morris, Ms Justice Mella Carroll, and the incoming president of the High Court, Mr Justice Peter Kelly.
Pandora’s box
The judges said the Oireachtas had “no inherent power” to set up inquiries that would damage reputations or rule on facts. Such powers were not granted by the Constitution and were “neither normal or necessarily exercised in other democratic states”.
A State appeal to the Supreme Court was dismissed.
Mr Justice Kearns said yesterday that many commentators now seemed to feel successive court interventions had “virtually paralysed” the investigatory process “where accountability for matters of serious public concern is required”.
Speaking to an audience which included many serving and retired judges, he said courts, in considering their decisions, should be “always mindful of the potential downstream implications”.
“They should never put themselves in the position of realising, all too late, that a particular decision has opened a Pandora’s box of unintended consequences which, had proper consideration been applied at the relevant time, might have led to a different approach being taken.”
This, he said, “is particularly the case where the boundaries of the judicial and executive function intersect.”
That was an area where, in his view, judges and courts “should not be excessively overactive or interventionist.”
He said that in his 18 years as a judge he had observed many areas where such an approach had created more problems than it solved.
It was not that courts would wish to bring about such a situation “but it is effects of decisions rather than the intention of the court which counts”.
Mr Justice Kearns was responding to a series of warm tributes marking his retirement after a 51-year career in the Four Courts.
He started out in 1964 as a civil servant in the courts’ central office before being called to the Bar in 1968. After a distinguished career as a barrister he became a High Court judge in 1998.
He later served on the Supreme Court before returning in 2009 to the High Court as its president.
He was the presiding judge on the three-judge court that dismissed the challenge to the law outlawing assisted suicide by multiple sclerosis sufferer Marie Fleming, who has since died.
