Justice Nial Fennelly delivers Walsh Lecture on the judicial legacy of the late Justice Adrian Hardiman

THE UCD Sutherland School of Law was again honoured to host the annual Walsh lecture in honour of the late Justice Brian Walsh.  In a distinguished career in both the European Court of Human Rights and the Irish Supreme Court, Justice Walsh made a lasting impact on Irish society and has been described as “the outstanding legal reforming mind of his generation” by noted historian John J Lee.

The Hon. Mr Justice Nial Fennelly delivered this year’s lecture on the subject of “The Judicial Legacy of the Hon. Mr Justice Adrian Hardiman. Mr Justice Fennelly sought to distill the basic principles that underlay the many detailed and finely-honed judgments that his late colleague on the Supreme Court Mr Justice Hardiman had delivered in his sixteen years as a judge.

 

Mr Justice Fennelly speaking in the A&L Theatre in the UCD Sutherland School of Law

Walsh Lecture 16 from UCD Sutherland Law on Vimeo.

The lecture fell broadly into two parts: on one hand, Adrian Hardiman's contribution to the constitutional dimension of the criminal law and on the other, his view of the limits of the judicial role, in the context of the separation of powers that ought to exist in Ireland.

In relation to the first group of cases, Mr Justice Fennelly identified three fundamental topics - the preservation of evidence cases, the cases of delay in prosecuting for alleged sexual offences and the development of the law in relation to the exclusion of unconstitutionally obtained evidence. The first topic concerns cases where the Gardaí have lost or failed to secure evidence on which the accused might have relied in his or her defence. Here, Mr Justice Hardiman played a key role in the development of the case law. In doing so displayed his tremendous attention to detail and the strength of his commitment to a fair trial according to what he took to be basic norms of the modern common law in relation to delay in cases of alleged sexual offences, Mr Justice Hardiman's passionate commitment to the adversarial nature of the criminal trial and the key role of cross-examination was again in evidence. In relation to the last topic related to the criminal law, the exclusion of unconstitutionally obtained evidence, Mr Justice Fennelly dwelt on Mr Justice Hardiman's remarkable dissent in DPP v JC, in which all his best qualities were spectacularly displayed. The invocation of the 'force publique' - in all its forms - and the need to have firm barriers against its arbitrary exercise was at the heart of Hardiman's objections to his colleagues relaxation of the exclusionary rule as it was of so many other judgments he delivered.

Turning away from the criminal law, Mr Justice Fennelly surveyed some other aspects of the Hardiman conception of the judicial role. He observed first that this belied any casual assumption that a judge who found in favour of criminal defendants in many cases where his colleagues did not must also generally look with favour on plaintiffs in tort cases. That Mr Justice Hardiman did not - as in the relatively restrictive view he took of vicarious liability in O'Keeffe v Hickey - reflected his sense that imposing criminal and civil liability were weighty matters and his belief that the judiciary did not have the power to recast the law to satisfy vague notions of justice that did not correspond to the well-established norms of the common law. Another area where his commitment to the separation of powers was evident was in Maguire v Ardagh, where he also brought his considerable abilities as an historian to bear in disposing of the claim that the Houses of the Oireachtas inherited from the Westminster Parliament a broad power to conduct inquiries into matters of public interest.

As much as describing the legal rules and principles addressed in Mr Justice Hardiman's judgements, Mr Justice Fennelly sought to convey his personal qualities as a judge - his passion for justice, his profound sense of the importance of history, his peerless attention to detail, his fearlessness in standing his ground for what he believed to be right and the eloquence with which he could express his views, whether among the majority or in dissent.          

 

(L-R)Prof Imelda Maher, Judge Yvonne Murphy (wife of the late Adrian Hardiman), Prof Colin Scott (L-R) Justice Nial Fennelly with Declan and Margaret McCourt (daughter of the late Justice Brian Walsh)
   
(L-R) Declan McCourt with Justice Mary Finlay Geoghegan and her father, former Chief Justice Tom Finlay (L-R) Justice Nial Fennelly with Prof Joe McMahon, UCD Judge in Residence, Aindrias Ó Caoimh and Ian Cornelius
   
(L-R) Frank Callanan SC with Former AG Harry Whelehan SC (L-R) Aindrias Ó Caoimh with Senator Michael McDowell SC
   
(L-R) Judge Yvonne Murphy with Justice Catherine McGuinness (L-R) UCD Judge in Residence, Aindrias Ó Caoimh with Ian Cornelius
   
(L-R) Prof Imelda Maher, Orla Tighe and Dr Mary Catherine Lucey (L-R) John Costello with Justice Sean Ryan (President of the Court of Appeal)