The Chief Justice, Mr Liam Hamilton, in his report on the Sheedy affair, concluded that even though what Mr Justice Hugh O'Flaherty did was merely "inappropriate and unwise", that "it left his motives and actions open to misinterpretation" and, as a consequence, what he did was "damaging to the administration of justice".
This damaging conclusion was reached even though it was acknowledged that all that Mr O'Flaherty did was to speak to two people, who met him by chance about the case, and then to ask the County Registrar of the Dublin Circuit Court about how appeals against sentence were handled by that court.
The Chief Justice acknowledged that Mr Justice O'Flaherty became involved in this case "in a spirit of humanitarian interest".
It was accepted that Mr Justice O'Flaherty did not ask for the case to be listed, that he did not ask that it be listed before a particular judge, that he did nothing at all to contribute to the subsequent mishandling of the case.
And yet what he did was "damaging to the administration of justice" because what he did "left his motives and action open to misinterpretation".
The seriousness of that verdict on what Mr Justice O'Flaherty did is underlined by the similarity of language used to characterise the conduct of Mr Justice Cyril Kelly.
Mr Justice Kelly was found to have "failed to conduct the [Sheedy] case in a manner befitting a judge". Furthermore, in suggesting that an up-to-date psychological report be added to the Sheedy file, after the case had been disposed of, he engaged in conduct that was "manifestly improper". And the Chief Justice's verdict was that his handling of this matter "compromised the administration of justice".
The similarity of the two verdicts - "damaging to the administration of justice" and "compromised the administration of justice", clearly suggested that the two sets of conduct which gave rise to the verdicts in each case were on a par with each other.
We are thus left with the proposition that innocent conduct which gives rise to "motives and actions being open to misrepresentation" is on the same level as conduct which itself is "manifestly improper" and not "befitting a judge".
The absurdity of this proposition can be illustrated in two ways.
FIRST, had the Sheedy case been handled properly by the justice system after Mr Justice O'Flaherty's intervention, and had Mr Justice O'Flaherty's intervention subsequently been revealed, is there a person in the country, bar possibly Brendan Howlin (and we will get to him later), who would have called for the judge's impeachment or resignation?
Would anybody be saying, still less the Chief Justice, that what he did "left his motives and action open to misinterpretation and it was therefore damaging to the administration of justice"?
Why then should this verdict be thrust upon him because, for reasons that had nothing at all to do with him, others mishandled the case subsequently?
Of course one might have said that judges should not intervene in cases in a manner such as this, however motivated by humanitarian concern.
One might also be critical of the likely class bias that may be inherent in such interventions. But can anyone seriously contend that, had all gone well subsequently, anyone would have been calling for Mr Justice O'Flaherty's resignation? The second illustration I want to offer concerns the Chief Justice himself.
In 1994 he concluded his report on the Beef Tribunal. The report was perceived to be unsatisfactory. In retrospect, it is unlikely that Mr Justice Hamilton himself would be happy with the report.
In particular, Mr Justice Hamilton might regret the dismissive two-line comment in the introduction to the report: "The Tribunal is satisfied that [party political] contributions [by companies or persons engaged in the food processing industry] were normal contributions made to Political Parties and did not in any way affect or relate to the matters being inquired into by the Tribunal."
There is no question but that Mr Justice Hamilton conducted the Beef Tribunal conscientiously and with scrupulous integrity. But, in a reflective moment, even he might concede that the three years it took for the tribunal to conclude its business, and the vast cost it incurred (around £35 million) did little to enhance the perception of the administration of justice.
Moreover, the unfortunate coincidence of the publication of that report with the promotion soon thereafter of Mr Justice Hamilton to the position of Chief Justice left Mr Justice Hamilton in a position whereby his motives and action might well have been open to misinterpretation and were therefore "damaging to the administration of justice". Of course he too, like Mr Justice O'Flaherty, had done nothing wrong. In both cases, their personal motivations were unimpeachable.
I make this point only to highlight the unfairness of this perception test, when applied in circumstances such as these.
The Chief Justice was unfair in using very similar language to indict innocent conduct on the part of Mr Justice O'Flaherty and conduct on the part of Mr Justice Kelly which was bound to have been "manifestly improper" and not "befitting a judge". That unfairness propelled the final push to demand the head of Mr Justice O'Flaherty, but it did not do so on its own. The legal profession, the media and the pusillanimity of Fianna Fail did the rest. Not forgetting Brendan Howlin (and we will get to him now).
Brendan Howlin was Minister for Health when the hepatitis crisis broke in February 1994. He acted swiftly by ordering the recall of the infected plasma Human ImmunoglobulinAnti D, making a public statement on the discovery, and instituting swiftly a screening programme throughout the State. But he was then responsible for two matters, the seriousness of which were and are vastly greater than anything for which the person for whose head Brendan Howlin has been baying for several weeks was ever responsible.
SIX DAYS after he was informed of the link between hepatitis C and the Anti D product, a higher executive officer in the Department of Health, acting under authority delegated to him by Brendan Howlin, gave retrospective product authorisation for the period April 1st, 1988 to March 31st, 1993 to that very same product. Thus the guarantors of the safety of the product were retrospectively guaranteeing its safety when they knew it was lethal. Brendan Howlin claimed not to have known about this, but it was his responsibility as Minister.
One would think that Brendan Howlin might be a little more measured in demanding the head of others, given the gratitude he should feel for the sparing of his head in 1994.