Jury out on Devins debacle

Who’s judging the judges?


The comment made by Judge Mary Devins last month in relation to the Polish community and social welfare is the latest in a long line of controversial remarks made by judges in Irish courts. Áine Ryan looks at what accountability exists in our legal system for district court judges.

THE JURY in the Judge Mary Devins case has absconded, it seems. So is her unfortunate faux-pas just another silly season storm in a teacup? It was certainly colourful fodder for a depleted media that bayed briefly but largely failed to address the gravitas of the matter.
The storm erupted after The Mayo News reported remarks made by the judge at a sitting of Castlebar District Court on July 29 last. She was presiding over the sentencing of Enda Moylette, of Derrycoorane, Islandeady, who had originally come before Judge Conal Gibbons because of drunken comments he made outside a Castlebar pub. While being restrained Mr Moylette said to a security guard: “Get off me you fat Polish f***er, you fat Polish prick.”
At the original hearing Judge Gibbons said he would dismiss the public order breaches under the Probation Act if Moylette came up with €1,000 by Friday, July 29, for a Polish charity.
On that date, during discussions on the existence of a suitable Polish charity, Judge Devins said: “There is … it’s called social welfare.” She also said she would prefer the money was given to a local charity.
Since her appointment as a judge in 1998, Derry native, Mary Devins has often caused wigs-on-the-green on the Shakespearean stage that is sometimes District Court Area 3. While she can be very witty and colourful, as well as fair and incisive, her acerbic tongue has heretofore never caused such a public flogging. Unfortunately, tabloid hysteria does not address the real lacuna that leaves one organ of the State – the judiciary – seriously flawed when it comes to accountability to its citizens.

Media storm
IN a considered but hard-hitting piece Sunday Independent (August 5) columnist, Emer  O’Kelly, examined the kernel of the issues raised by Mary Devins’s controversial remarks .  
She poses two pithy questions in her introduction: “Will the Judge Mary Devins affair be a storm in a teacup? Probably. Should it be? Definitely not.” 
O’Kelly later observes that while Mary Devins apologised for what she said, she had not apologised for ‘thinking it’. “How could she?” 
On one level, that is the kernel of the problem now. Of course, judges are human and have attitudes, even personal prejudices. But they must be seen to be above prejudice, above personal feelings, when, in their powerful roles, they administer justice. The widely use aphorism, by a former Chief Justice of England, Gordon Hewart, says it all: “Not only must justice be done; it must also be seen to be done.” 
That is why another question posed by Emer O’Kelly straddles the intricate relationship between morality and the law.
O’Kelly asks: “[Will] anybody who is not born and reared in Ireland of Irish parentage feel easy at any time in the future if they come before Mary Devins in her court?”
No matter how fair Mary Devins is in the future, when presiding over cases relating to Polish people,  it seems she has left herself open to a clever solicitor questioning her impartiality. That is a real problem for the judge now.
In her conclusion, Emer O’Kelly calls for the judge’s resignation, arguing that ‘she has brought the District Court bench into disrepute, and she should resign’. She echoes a chorus of commentary in the twitter-sphere that continued even after the judge’s second fulsome apology. This apology was made after the Irish Integration Centre said it planned to lodge a formal complaint to the gardaí under the Garda Racist Reporting Mechanism. Issued through the Courts Service she apologised ‘unreservedly and without qualification’, for the remarks which had been ‘unwarranted and off-the-cuff’
Even though the Irish Polish Society accepted her first apology, the Irish Integration Centre had dubbed it ‘rambling, contrived and spurious’. The first apology contextualised the offending remarks as relating to another case involving an alcohol-fuelled incident involving Polish people on social welfare.

Judicial Council
AS long as the judiciary are political appointees who preside without a statutory Judicial Council such potentially fatal errors of judgement – even if they are just off-the-cuff remarks – will cause kerfuffles that at the very least may undermine faith in the impartiality of the judiciary.
Of course, this case has more serious ramifications. To compound matters, Judge Devins has raised issues previously in a case involving Polish defendants. At Claremorris District Court on September 21, 2010, Judge Devins questioned why Polish interpreters were being paid to interpret for foreign nationals who had a good level of English. “Why, when the country is on its knees, do we have to pay for a Polish interpreter?” said Judge Devins. She was dealing with two Polish men who both used interpreters, Rafal Justa and Martin Justa, who were before the court on a number of driving offences. The court  heard that one of the men had lived in Ireland for seven years.
But Mary Devins is not alone when making comments that cause a stir. Every now and then the learned lord and ladyships of the courts system come out with clangers that may be funny sometimes but are also highly inappropriate. For example last year, Westport native and District Court Judge Seamus Hughes sailed close to the wind after a young serial offender pleaded guilty to charges of theft from a Roscommon farmyard.
“It takes a Mayo man to put an end to that sort of thing and I’m not talking about myself. I’m talking about the venerable PΡdraig Nally,” Judge Hughes quipped. Reportedly it was a tongue-in-cheek remark.
Originally convicted, Mr Nally was later acquitted of the manslaughter of John ‘Frog’ Ward after shooting him on his farm, near Cross, in south Mayo, in October 2004. At the time, Seamus Hughes was State Solicitor for Mayo.
In the case before Judge Hughes last year, Martin Stokes and his co-defendant had been caught red-handed by the farmer and were later identified selling stolen scrap and batteries for €60.
It doesn’t matter how witty or tongue-in-cheek such asides are, they could leave errant judges teetering on the edge of a disciplinary guillotine if there was a proper system of redress. Indeed, if they were made in other jurisdictions the penalties would be far more stringent than the present Irish resolution: trial by the media.
That is why an interim Judicial Council, appointed by the Chief Justice, in anticipation of legislation, must be given more permanence and statutory substance. This latest incident once again demonstrates the urgency of a statutory body to monitor and, if necessary, impose disciplinary measures on a judge. It is only a few months since the Chief Justice, Mrs Justice Susan Denham, said that the judiciary was the weakest arm of government and would be ‘very much enhanced’ by the establishment of a Judicial Council.
It is 12 years since the Committee on Judicial Conduct and Ethics recommended the establishment of such a council. For years there was no progress, but the last Minister for Justice, Dermot Ahern published the heads of a Judicial Council Bill. The current Programme for Government has committed to legislate on its establishment.
Each level of the judiciary – District, Circuit, High and Supreme courts – is presided over by a president responsible for matters within his or her jurisdiction. Each president can call in an offending judge and ask for an explanation about his or her conduct. However, they have only moral authority as there is no statutory obligation on the judge to respond to such an invitation.
However, if the matter caused grave concern, the Minister for Justice can under Section 21 of the Courts of Justice (District Court) Act 1946 ask the Chief Justice to appoint a High Court judge to inquire into the health or conduct of a judge. Such a move is extremely rare but could ultimately lead to impeachment in very serious cases.
The problem is that no more moderate disciplinary measure exists for when a judge speaks inappropriately. It is on the public record that many judges are recidivists at crossing the line into the realm of inappropriate commentary. Here in County Mayo, retired Circuit Court Judge Harvey Kenny often got himself in hot water over his remarks. In 2001 he told a young Traveller, in court for assault charges, that he was ‘a thick fat fool with a head like the front of a mallet’. He then ordered 18-year-old Michael Collins to sign up to Claremorris GAA club ‘to train and lose some weight’. Back then there was a media storm too.