A brush with the law
During the days in 1980 when the High Court considered a challenge to Ireland’s laws against homosexuality, I went down to the Four Courts two or three times. It was before serious journalism had developed in Ireland, and thus the newspapers and RTÉ took their coverage from a single court reporter and reported merely the bare facts of the hearing. There was no one describing the atmosphere in the court, no one writing about those tiny moments in a hearing which make all the difference.
David Norris was, in my opinion, both the best and the worst person to bring such a case. He was the best in that, as a lecturer in Trinity College and a person of immense independence of mind, he was in no danger of losing his job or having his position made impossible as a result of the case. But he was the worst in that he seemed, on the face of it, not to have been greatly damaged by the laws in question; he had not served a prison sentence. He appeared to be a happy, well-balanced person living a life of ease and privilege in Ireland. What exactly was his problem?
A courtroom, with its adversarial traditions, was perhaps not the best place to explain that to be gay in a repressive society is to have every moment of your life clouded by what is forbidden and what must be secretive. In George Orwell’s 1984, the most severe punishment for citizens was to forbid them the right to love. To most readers of the book, this seemed a cruelty far-fetched and almost impossible; but for most gay people it was a nightmare we inhabited while pretending, sometimes even to ourselves, that it was nothing, or while telling ourselves that it would not easily change and that it was dangerous to complain. It was best to carry on as though equality for gay people were not a substantial issue worthy of public discussion. The laws forbidding us to love, forbidding us to couple as others do, affected us – as they still do, we are not allowed to marry – in ways so deep and basic as to be obvious sometimes only to us, and almost impossible to explain to a senior counsel in the High Court who is being paid to pick holes in an argument and suggest that what the witness is saying should be discounted by the learned judge.
There was an extraordinary moment in the High Court hearing when a liberal priest, a learned fellow himself, gave evidence in favour of David Norris. He suggested ways of interpreting the Bible and the gospels which would not preclude a court in a civilized country, whose ambiguously worded constitution implied certain fundamental rights, from declaring laws against homosexuality to be repugnant to that constitution. It was a subtle argument, and difficult to make, especially under cross-examination. In one moment, under fire, the priest used the word ‘we’, referring to homosexuals. The senior counsel, acting for the state, was a well-known figure at the Bar. He stopped, left silence, and then said quietly: ‘Father, did you say “we”?’ A chilly wind blew through the court, making clear to all of us how brave David Norris was to bring this case, and how brave this priest was now as he attempted still to make his argument. For days afterwards, the question in all its insinuation, in the ease with which it could be asked, stayed in my mind. I was not surprised when David Norris lost his case in the High Court.
Norris, represented by his counsel Mary Robinson, appealed to the Supreme Court. By the time five judges of that court made their ruling early in 1983, my circumstances had changed. For the High Court hearing I wrote a short piece for In Dublin magazine; at the time of the Supreme Court ruling I was, at twenty-seven, editor of Magill magazine. Magill was owned by Vincent Browne, and Vincent had also been the editor of the magazine until becoming editor of the Sunday Tribune. In the early days, as Vincent got ready to produce his first issue of the Sunday newspaper and I prepared my first issues of the magazine, we had a number of long discussions which made clear, at least to me, that there was a wide gap between us. I discovered that Vincent Browne believed in politics in a way which I did not. He believed that the purpose of journalism was to hold those in power to account so that they might become better and more enlightened. He viewed our role and their role through the same lens. I viewed Irish politics as unreformable. I thought it was our job to set up a world apart from politics, to write from a position of total opposition to how power was held and wielded. A few times, I was genuinely shocked when Vincent mentioned judges whom he admired, and whom he thought Magill should write about. I knew that you could admire a cynic – I admired many of them and wished to create some more – but I simply did not know that you could admire a judge.
I have a clear memory of a Friday afternoon in April 1983 and Vincent coming over to the Magill offices with papers in his hands. These were the opinions of the Supreme Court judges in the Norris case. Norris had lost again. Vincent was especially appalled by the judgement of the Chief Justice, Tom O’Higgins, and he wrote an editorial in the Tribune against it. He seemed really surprised by it, and we – meaning myself and a few journalists working on Magill – were amused at his response. What else did he expect, we asked him. Wisdom? Compassion? He was in the wrong place, we told him, but he was sure that if he wrote enough editorials, and if journalists could make passionate and rational arguments, then change could come, even judges could change. And if not, it was our job to hold them to account. The next issue of Magill contained nothing much about the judgement. I did not think it worthy of our comment.
Over the next few months Vincent argued strongly that I should begin to take the Supreme Court seriously; the Court thus began to appear on lists of long articles which Magill would do in the future. (The private finances of Charles Haughey also appeared on these lists.) He also said that he was worried by the slow pace of change in the law relating to freedom of the press and wondered if it might best come from the courts rather than the Oireachtas. A few times he mentioned how interesting it might be were a case about defamation and libel to go before the Supreme Court. These were matters which preoccupied us greatly at that time, especially as we knew that one serious libel action could badly damage the viability of a magazine like Magill. I tended not to speak much when Vincent mentioned the law. He knew more, in any case, about it than I did. And he believed in it, which, as I have already pointed out, I did not.
Towards the end of that year Vincent was approached by the journalist and writer June Levine, who had an interesting story to tell. Vincent thought the story would work better in Magill than in the Sunday Tribune, as we would be able to devote a great deal of space to it. It was the story of the murder of the prostitute Dolores Lynch, whose house had been set on fire. A friend of hers, an ex-prostitute called Lyn Madden, was ready to testify against a man called John Cullen, who had been charged with the crime. The story of Lyn’s life in Dublin was deeply disturbing, a portrait of an underworld which had been dealt with only in some sketchy court reports and in the tabloid press. In return for her story, which she was ready to tell to June Levine, Lyn Madden wanted money.
We had to think about this. Lyn Madden was about to put herself in great danger because of the evidence she would give in court. Clearly, she would need the money. I had some ethical difficulty with this, but I soon managed to convince myself that it could be justified. Journalists have a funny habit of being able to do that. This was, I thought, a story about which we had a duty to inform our readers. Lyn Madden was an entirely innocent party. She was not asking the magazine to allow her to benefit from a crime she had committed. Nonetheless, it was a grey area. We would not be able to publish unless John Cullen was convicted, and Lyn would be, in effect, the only serious witness against him. The better her evidence, the more likely that he would be convicted, and the more likely the conviction the more likely she was to get paid by us. I spoke a great deal to June Levine, who was adamant that Lyn’s motives for giving evidence against John Cullen had nothing to do with money. She would testify in any case. Lyn believed it was the right thing to do. But she wanted the money as well. I knew the story would sell magazines. I put my qualms aside. We did a deal.
As editor, I became emotionally involved in the story. I saw that June Levine was trying to write it as a news story and I began to work with her to make it read more like a long magazine story in the tradition of Truman Capote. I went to her house each evening to read new drafts of what was becoming a very long and fascinating piece. Slowly, we became friends. I also met Lyn Madden and saw her giving evidence in court. I realized how immensely courageous she was, what an outstanding person she was, and I hoped desperately for the conviction of John Cullen not only to save our story, but to save her. It was risky because the only real witness was Lyn. The case depended on the jury finding her credible. In the end, late at night, the jury returned with a guilty verdict. Lyn had won. We could publish the article, which would later become a book and was, by any standards, a wonderful piece of writing, a frightening account of the life of a prostitute and a violent pimp in the Dublin we all inhabited.
I knew, as I went back to the office that night, that we were going to sell a lot of magazines. And, as it was coming up to Christmas, the magazine was also going to be full of advertising. This story was going to make us financially secure for the next while. There is nobody more smug than an editor who has a story which he or she believes is not only very significant but will also sell like hotcakes in a publication which is fat with advertising. I was going to enjoy Christmas.
The grin was wiped off my face early the following week, however, when a young solicitor arrived in the office, asked for me, and handed me a piece of paper informing me that the High Court had issued an ex parte injunction preventing us from publishing the article. I immediately rang our solicitors, who contacted the barrister who read Magill for libel, and I rang Vincent. We discovered that there could be a hearing of the case quite soon, but the issue was that John Cullen was appealing his conviction to the Court of Criminal Appeal, a three-judge, non-jury court, and this meant that the case was still sub judice even though it had already been widely reported and commented on. The buzz term at the meeting with the lawyers and in our local pub on Merrion Row that night was not ‘sub judice’ but ‘prior restraint’. Vincent believed that we should once and for all get a ruling from the High Court against the idea that the courts could ever, on an application, prevent something from being published because of some theoretical damage it might do. Thus we could, if we won, broaden freedom of the press.
As we arrived in the Four Courts, it looked good. The judge, Donal Barrington, was not only blessed with intelligence but he was a known liberal, unusual among judges even to this day. As we stood outside, a funny thing happened. Judge Declan Costello passed by in full judge’s regalia, led by his tipstaff, on his way to another hearing. His eyes were on the ground, averted from us all. It was like something from the Inquisition. He looked absurd. I knew that Vincent had been a member of Fine Gael when Declan Costello, as a leading Fine Gael politician, had put forward the idea of the Just Society. ‘There goes your Just Society,’ I said to Vincent, but he just scowled, pretending he had not heard.
The judge in our case, despite his intelligence and his reputation as a liberal, did not rule in our favour. He referred to our ‘exclusive contract’ with Lyn Madden and went on to say: ‘I have read the article which is a lengthy one. It is written with verve, and is, I am prepared to accept, for the purpose of this application, a serious piece of investigative journalism written about matters which may be thought to be legitimate objects of public interest and concern … My own reaction, having read the article, was that, if I were subsequently requested to sit on the Court of Criminal Appeal to hear Mr Cullen’s Appeal I should ask to be disqualified.’ The judge went on to admit that judges are trained and ‘for that reason courts have traditionally taken a less serious view of adverse pre-trial publicity where a case was to be tried by a judge or judges alone than when it was to be tried by a judge sitting with a jury’. But then he went on: ‘Speaking for my own part I think it would be unwise to assume that judges are totally immune from frailties commonly held to afflict jurors.’ Thus he granted the injunction. The article could not appear.
As we walked back up the river from the Four Courts, all my prejudices against judges and their kind had been confirmed. We had lost. It was my job to find another article for the magazine and soon, as the weekend before production was looming. Magazines like ours could only be distributed on a Thursday. This was the 2nd of December. We had planned two issues between now and Christmas to take full advantage of the advertising. Losing one of these issues would be a disaster for us.
Vincent Browne was in a different mood, however. This was what he had been looking for – a chance to appeal and to secure a Supreme Court ruling on an important principle of press freedom. This was how many other important freedoms in Ireland had come, I knew, such as the liberalization of the laws against contraceptives and the allowing of women to sit on juries, to name but two. And in the United States, Vincent said, some important general declarations of rights by the Supreme Court had arisen from cases like ours which had seemed small in scope at the beginning. But I was against appealing. I thought it would be a waste of time. I did not think that the Supreme Court would entertain us for one moment, and this view seemed to be confirmed when we asked how long it would take for an appeal to be heard: we were told that the Chief Justice himself had said that he would be in no hurry to hear this case. Vincent insisted, however. It was not just our job to publish magazines, he said, but to use a case like this to create a more liberal climate for publication in the future. I gave in. We sent in a formal application to appeal. To our surprise, the Supreme Court agreed to hear the case five days after the High Court injunction.
Over that weekend, we produced two magazines – one to be published if we won, and the other if we lost, both full of advertising. The hearing was on a Tuesday and this meant that we could have the winning or losing magazine out by Thursday. Vincent stayed away from the court. I wonder if he was afraid of seeing any more of his heroes looking ridiculous, but maybe he was just too busy, or, more likely, weary of hanging out with me. He mentioned to a mutual friend – we only had one at the time – that when he spoke I had developed a way of looking at him which profoundly irritated him.
Over that weekend Vincent did a great deal of work on American judgements relating to prior restraint and freedom of the press. He handed a large amount of documentation to our lawyers. If looks could kill, then we would have been dead when we arrived armed with all this in the Court. The three judges sitting for the hearing – Tom O’Higgins, Anthony Hederman and Niall McCarthy – clearly took a dim view of us, and it seemed as though Rex Mackey SC, representing John Cullen, was going to triumph once more. But then it became clear that the judges, looking pompous in their wigs and sounding so high and mighty with their posh accents, had a problem. If a mere magazine article could influence them in their consideration of points of law, who were they? Surely they were above being influenced? Our barrister did not raise a single American example. He simply sat down, later explaining to me that he did not want to antagonize the judges once he saw that they were ready to ask poor Rex Mackey if he genuinely believed that they would not be able to carry out their priestly duties just because of an article ‘written with verve’ – Mr Justice McCarthy with great sarcasm repeated the phrase of his learned High Court colleague.
They then ruled. Chief Justice O’Higgins said: ‘The Court of Criminal Appeal will be asked to consider pure questions of law relative to the appeal. It cannot be suggested that in considering such questions, publication of this or any number of articles in any number of periodicals would have the slightest effect on the objective consideration of legal arguments.’ Mr Justice Hederman agreed, not saying very much. Mr Justice McCarthy, who had led the attack on Rex Mackey about the dignity of judges, had more to say, including a very interesting sentence: ‘The courts must be vigilant to protect the citizen, who also has the right to be informed.’ He continued: ‘There is no suggestion that the publication of the impugned material would scandalise the Court of Criminal Appeal or undermine, in any sense, the administration of justice or bring it into disrepute.’ Both he and O’Higgins made clear their dislike of the article, McCarthy referring to ‘chequebook journalism’ and O’Higgins saying that ‘better taste might indicate that articles of this kind should not be published during the currency of legal proceedings involving a citizen’. But they lifted the injunction. We had won.
Vincent came up with the idea of putting a big ad in the Irish Times showing the cover of the magazine with a strip across it saying: ‘By Permission of the Supreme Court.’ It must have driven them crazy. Vincent, to give him his due, thought it was typical of Irish justice that this case, which was a small landmark, should be called Cullen v Tóibín and not Cullen v Browne. He shook his head a number of times and laughed at the sheer unfairness of life. The magazine sold out.
As a result of my first brush with the law, I became interested in how the Supreme Court functioned and I used this new interest as a way of justifying my presence and my salary in Magill – Vincent knew that no one worked as hard as he did and often wondered why this was so. I worked as hard as I could on the magazine, but I told no one that I was also writing the novel which became The South in between intense bouts of production work which publishing a magazine entailed.
There were at that time six members of the Supreme Court. I began to study their form and background.
First, I found the judgements in the Norris case and read them. In the High Court judgement, which David Norris had appealed to the Supreme Court, Mr Justice McWilliams had made a remark which is at best unfortunate and perhaps does not merit comment. He was writing about the idea that two women acting alone cannot commit the act of buggery, and wondering if this fact meant that the law against buggery thus discriminated against men. He wrote: ‘It [buggery] may be performed by either homosexual or heterosexual men with either men or women. Although it is perfectly obvious that such acts will usually be performed between homosexual males, which is probably what the legislatures had in mind, that does not constitute an invidious or arbitrary discrimination against homosexual citizens any more than the statutes making theft an offence constitute an invidious or arbitrary discrimination against congenital kleptomaniacs, supposing there were such a group of people.’
Mr Justice McWilliams made reference to rights implied by Article 40 of the Constitution, including part 1 of section 3, which reads: ‘The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’ This sentence is clearly open to interpretation; it means whatever the judge thinks it means. It would seem obvious to me that it would require a judge to declare the Victorian laws against homosexual acts between men unconstitutional. What greater personal right is there, after all, than the right to love? But it might not seem so to you, or to a judge. And Mr Justice McWilliams also had to look at the preamble to the Constitution, which begins: ‘In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred …’ He referred to the judgement of Mr Justice Brian Walsh in the McGee case (about contraception), which said that rights under Article 40 ‘are to be related to the laws of God as understood by Christians’. He then went on: ‘[I]t is reasonably clear that current Christian morality in this country does not approve of buggery or of any sexual activity between persons of the same sex.’
This was the judgement which the Supreme Court had to consider when it came to them on appeal. The majority judgement of the Supreme Court, written by Chief Justice O’Higgins, was not, in my opinion, the most enlightened in the court’s history. I understood now why Vincent Browne had been so concerned about it and I regretted that Magill had not published it in full at the time it was delivered. In his judgement, given in April 1983, Chief Justice O’Higgins did not advert to Mr Justice McWilliams’s reference to kleptomania. He wrote instead: ‘A right to privacy or, as it has been put, a right “to be let alone” can never be absolute. There are many acts done in private which the State is entitled to condemn, whether such be done by an individual on his own or with another. The law has always condemned abortion, incest, suicide attempts, suicide pacts, euthanasia or mercy killing.’ These, it seemed, could be equated with two consenting men making love in privacy. He went on to say that homosexual conduct is, ‘of course, morally wrong, and has been so regarded by mankind throughout the centuries. It cannot be said of it, however, as the plaintiff seeks to say, that no harm is done if it is conducted in private by consenting males. Very serious harm may in fact be involved. Such conduct, although carried on with full consent, may lead a mildly homosexually oriented person into a way of life from which he may never recover.’ He summarized his views as follows:
(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime.
(2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide.
(3) The homosexually orientated can be importuned into a homosexual lifestyle which can become habitual.
(4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public-health problem in England.
(5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution.
The Chief Justice also wrote (and this was, I imagine, what had most offended Vincent Browne): ‘I regard the State as having an interest in the general moral wellbeing of the community and as being entitled, where it is practicable to do so, to discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect.’
The two dissenting judgements in the Norris case also made for interesting reading. The more trenchant of the two was by Seamus Henchy, who wrote that David Norris had,
in a number of subtle and insidiously intrusive and wounding ways … been restricted in, or thwarted from, engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship. It is not surprising that the repressive and constricting treatment suffered by the plaintiff affected his psychological health. As an involuntary, chronic and irreversible male homosexual he has been cast unwillingly in a role of furtive living, which has involved traumatic feelings of guilt, shame, ridicule and harassment and countless risks to his career as a university lecturer and to his social life generally. Those risks are not the normal lot of the fornicator, the adulterer, the sexually deviant married couple, the drunkard, the habitual gambler, the practising lesbian, and many other types of people whose propensities and behaviour may be thought to be no less inimical to the upholding of individual moral conduct, or to necessary or desirable standards of public order or morality, or to the needs of a healthy family life, or to social justice, or to other expressed or implied desiderata of the Constitution.
He went on to write about David Norris’s refusal to emigrate to a society which was more tolerant, a decision which ‘had the effect of transforming, to a limited extent, his fear to indignation’. Judge Henchy then made, in passing, an uncharacteristically stupid comment about David Norris: ‘His subsequent public espousal of the cause of male homosexuals in this State may be thought to be tinged with a degree of that affected braggadocio which is said by some to distinguish a gay from a mere homosexual.’
Henchy had more serious things to say, however, including an observation that some of the points made about homosexuality and society by the High Court judge (and, indeed, by the Chief Justice, although he did not name him) had not been derived from evidence given to the court, since the State had not, in fact, defended the case in any substantial way. He was thus implying that the points made by McWilliams and O’Higgins arose from those two gentlemen’s private prejudices and had no place in their written judgements. ‘Where a constitutional challenge depends on expert opinion about the actual or potential effect of questioned statutory provisions, the constitutional point must be ruled on the basis of the facts or opinions as admitted to be correct or as duly found by the judge from the evidence given. Where the evidence given is entirely to one effect, it cannot be rejected.’ In this case, the evidence given was entirely to one effect, as ‘not a single witness was called by the Attorney General to rebut the plaintiff’s case that the degree of decriminalisation sought by him posed no real threat to public order or morality.’
The other dissenting judge, Mr Justice McCarthy, pondered ‘the extent’ of the right to privacy and of ‘the right to be let alone’ and suggested that the laws as they stood were simply unfair to homosexual men. He must have enjoyed reading out this part of his judgement, worthy of Jonathan Swift:
If a man wishes to masturbate alone and in private, he may do so. If he and another male adult wish to do so in private, may they not do so? No, each commits an offence under section 11 of the Act of 1885. If a woman wishes to masturbate in private, she does not commit an offence. If two women wish to so in private, neither of them commits an offence. If a man and a woman wish together to do so in private, not being married to each other, neither of them commits an offence. In such latter circumstances, the act committed by the woman upon the man may be identical with that which another man would commit upon him, save that his partner is a woman.
‘In my opinion,’ he concluded, ‘a very great burden lies upon those who would question personal rights in order to justify State interference of a most grievous kind (the policeman in the bedroom) in a claim to the right to perform sexual acts or to give expression to sexual desires or needs in private between consenting adults, male or female.’
Over the next while I began to read Supreme Court judgements in other cases and meet with some barristers who pointed me towards the most significant of them. The first judge I telephoned was Brian Walsh, who was the most senior judge on the Supreme Court, having been appointed in 1961. He was gruff but friendly on the phone and told me he would see me any time that suited me. He worked mainly from his office at the Law Reform Commission on St Stephen’s Green – he was chairman of the commission and also a judge of the European Court of Human Rights – which was very close to the Magill office. During the days before I met him I read some of his judgements, and thus I was aware that he had a most formidable mind. But as I walked across the Green to see him I also had in my head the dissenting judgement he had given in 1981, as a judge on the European Court of Human Rights, in the Dudgeon case, the Northern Irish version of the Norris case, and knew that he had caught a disease, common it seemed in the Four Courts, of stark raving madness on the question of homosexuality. ‘A distinction must be drawn,’ he wrote, ‘between homosexuals who are such because of some kind of innate instinct or pathological constitution judged to be incurable and those whose tendency comes from a lack of normal sexual development or from habit or from experience or from other similar causes but whose tendency is not incurable. So far as the incurable category is concerned, the activities must be regarded as abnormalities or even as handicaps and treated with compassion and tolerance which is required to prevent those persons from being victimised.’
Judge Walsh did not have a posh accent, and this distinguished him from most judges and barristers. His tone was direct, he mumbled a good deal. He agreed to go through the many landmark judgements he had made at this meeting and any others I had time for. He mentioned that he had seen me on television arguing with Conor Cruise O’Brien on the Sunday after the extradition to Northern Ireland of the INLA man Dominic McGlinchey. Magill had taken the position that such an extradition should not have taken place on the basis of a mere warrant being presented to the courts; we believed that there ought to have been prima facie evidence and that the evidence should have to be closely examined. There was a central question of liberty involved.
I thought that Brian Walsh, who had not been a judge in the case, was going to take me through the law involved in this, and I was ready to take notes, but when he began to speak, I put my pen down, amazed at what he said, and careful also in case my note-taking would make him more cautious in what he said. On St Patrick’s Day that year, 1984, a month or two before we had this conversation, he received a telephone call at home, he said. The caller told him that Dominic McGlinchey had been captured in Clare in a shoot-out, and that, at a private sitting of the High Court, Donal Barrington had ruled that McGlinchey could not be extradited to the North. Would Brian Walsh be available, the caller asked, to come to the Four Courts that evening and sit on a three-judge Supreme Court to hear an appeal from the State? Walsh told me that the person on the other end of the phone was the Chief Justice, Tom O’Higgins. Walsh said that he made it clear to O’Higgins that he would certainly be willing to sit on the court, and that he did not believe that McGlinchey should be extradited, but should rather be tried for offences allegedly committed in the South. He added that if McGlinchey were to be extradited it should not be done in any case until Monday morning; the reasons were historical, he explained. Kevin Barry had been hanged on All Saints’ Day, Rory O’Connor and Liam Mellowes had been executed on the feast of the Immaculate Conception. Dominic McGlinchey should not be extradited on St Patrick’s Day. O’Higgins, who was in favour of the immediate extradition, did not ring back. The two judges who came to the court with him that night and extradited McGlinchey were Seamus Henchy and Frank Griffin. I was told at the time that of the five judges of the court besides Tom O’Higgins, Henchy and Griffin were considered the two most likely to agree with O’Higgins and make the decision unanimous.
Walsh did not tell me that this information was off the record, and it was clear as he spoke that he wanted it known, although I knew that I could not name him directly as the source. He was evidently in a rage about having been phoned in this way, which he viewed as highly irregular and I viewed as shocking. Although he did not say so, I understood him to believe that if he had not made his position so clear, he would have been invited to sit on the court. Since I was so surprised at being taken into his confidence in this way, and did not wish to antagonize him by implying a criticism in a question, I did not ask why he had, without hearing the case, offered his view of it so freely to O’Higgins. I felt that it was my job not to speak at all, but to leave the building as quickly as possible before he changed his mind and told me I could not print what he had told me. I understood as Walsh spoke that he had actually been asked by the Chief Justice what his view on the case was, but I did not know that for certain. He could have offered it without being asked. He was not afraid of his own opinions. My shock came at the idea of the Chief Justice, who supported a particular view, leaving a senior judge off the court after hearing him express the opposing view. Once the Chief Justice called him, in my opinion, he had to take him, no matter what he said on the phone. Walsh’s rage, which came through in his tone and in the set of his jaw as he spoke, arose, I supposed, from this. I opened the article I wrote with the story of the phone call, outlining what Walsh had said. I did not name Walsh as the source, nor did I say who had made the call, but it was clear from the context that it could only have been the Chief Justice.
There was something wonderful about Walsh in his exile from the Four Courts. He was sharp and fearless, and he spoke about writing his judgements like a novelist might. He understood the importance of what he and the former Chief Justice Cearbhall Ó Dálaigh had done. They both sought to move the Irish legal system from its British moorings, where parliament was supreme, towards an American system in which a written constitution, which Ireland had had since 1937, contained implied rights as well as stated ones. Thus the courts interpreted the Constitution and these interpretations could override parliament in the name of the people. These two men, and some of their colleagues, were nationalist intellectuals. The more I saw Walsh the more he reminded me, in his way of remaining serious, almost distant, while also exuding a kind or warmth, of my father, who had died in 1967, and my uncle, my father’s older brother, both of whom had been active in Fianna Fáil. I began to take an enormous interest in Walsh’s tone, his gestures, his diction, although I knew I would only be writing about his judgements in my article.
In the Ó Dálaigh archives at UCD I found a frank and beautiful letter that Walsh, one of the least emotional people I had ever met, wrote to Cearbhall Ó Dálaigh in August 1972 in reply to Ó Dálaigh’s letter about his going to be a judge at the European Court. Ó Dálaigh had said that the Supreme Court under himself and Walsh ‘had earned the respect and trust of ordinary people’. Walsh wrote back:
I had always looked forward to sitting beside you in the Supreme Court for at least the next ten or eleven years secure in the knowledge that the Court would be led with the integrity, regard for principle, and courtesy which made your first decade as C.J. so outstanding and which earned for the Court the high respect which I believe it now enjoys. I felt another decade of the Ó Dálaigh court could only be for the everlasting benefit of the country. I cannot at all agree with your reference to your age and temperament and patience. I am only too conscious that on many occasions I have put the last virtue to the test and still did not (apparently) exhaust it. Your departure will be a great personal loss to all of us and to the Bar. I also have the suspicion that the administration may also avail of the opportunity so to adjust the leadership and the personnel of the Court to reduce the risk of the Court’s ‘initiatives’ of the past decade.
There is also something I find it easier to write than to speak. That is to thank you for the pleasure and happiness I have derived for thirty years from your friendship and support both at the Bar and on the Bench and away from the law. In particular I am conscious of the fact that I joined the Supreme Court on the same day as you became Chief Justice and I shall always regard the eleven years as the most satisfying and valuable years of my professional life. With a Chief Justice of a different and less sympathetic temperament things would have been different. It is now a matter of deep regret to me that our professional paths must now part.
Walsh was, of course, right that the administration, often irritated at the disloyalty and interventionism of the judges, would use this opportunity to appoint more conservative judges and thus marginalize Brian Walsh.
As I worked, I discovered that there were two sorts of eminent barrister and indeed judge in the Four Courts. One sort took a keen interest in the way in which Walsh and Ó Dálaigh, by asking for American precedents and being receptive to using the spirit of the Constitution to extend ideas of liberty, had effected a revolution in Irish law. These barristers and judges tended to be or to have been supporters of the Fianna Fáil party.
The other sort were Fine Gael; they were more interested in talking about individual cases and had no real sense of the overall shape of jurisprudence over the previous twenty-five years. I noticed too that while the Fine Gael people were careful about what they said about Ó Dálaigh they were united in disliking Walsh and disapproving of Mary Robinson. They seemed to dislike Walsh for his interventionist stance as a judge but also, it seemed to me, for his lack of clubbability. It was hard to imagine Walsh telling amusing anecdotes about the Bar and its more colourful members or discussing his art collection. Some of the attitudes towards him appeared to me to arise from snobbery. He had none of the tones of Belvedere and Gonzaga – two posh Jesuit schools – sacred to many lawyers of the Fine Gael persuasion. The same people disapproved of Mary Robinson because she was foremost among those who had taken full advantage of the Supreme Court’s advances in constitutional thinking; she tended to bring high-profile cases relating to personal rights rather than get involved in the day-to-day business of the Bar. I admired her for this, as much as I grew to like Walsh’s manner. But I said nothing. I listened carefully to the Fine Gael side, realizing that they had held power in the Four Courts between the foundation of the state and 1961 but had lost it now and were puzzled as to how this had come about.
A number of High Court judges also agreed to see me and two of them in particular – both of Fianna Fáil origin – gave me a great deal of their time and attention and spoke of Ó Dálaigh and Walsh and what they had achieved with a sort of awe. I needed these judges because when I phoned Seamus Henchy he barked at me, making clear that he viewed a request for an interview as an example of considerable cheek. Anthony Hederman was very rude and brusque and said that he would under no circumstances see me. I had no interest in Frank Griffin. That left only two: Niall McCarthy and the Chief Justice himself, Tom O’Higgins.
Niall McCarthy, when I phoned him, explained that he could not discuss the Supreme Court. I said that he had been involved as a lawyer in so many landmark cases that it would be impossible to write a long piece about the Court without his assistance. We agreed to discuss only cases which occurred before his appointment as a judge. He invited me for lunch in his chambers.
When I arrived, he was in the company of a very eminent barrister whom I knew. They were busy, very busy, they said, composing clerihews. Did I know what a clerihew was, Niall McCarthy of the Supreme Court asked? I told him I did. It was a four-line poem with the name of a person at the beginning; it had two very short lines which rhymed, and two more lines, also rhyming.
McCarthy had just composed one he was rather proud of, he said. As he recited it, I wished I could put into my article, which was twenty thousand words long, but with no space for clerihews. Magill, when it was serious, was very serious indeed. Thus readers were deprived of a great clerihew:
Everyone he knew
When he wrote À la recherche du temps perdu.
McCarthy proceeded, once I had paid suitable homage to his clerihew and the barrister had left us, to give me a brilliantly cogent version of what had happened in the Supreme Court over the past twenty-five years. He seemed to have particular reverence for Ó Dálaigh and made it clear, by implication, that he did not believe that Tom O’Higgins, the Chief Justice under whom he now served, had much of a legal brain. The lunch was very good, served, as McCarthy proudly told me, by his tipstaff, a former head waiter at the Royal Hibernian Hotel.
Before I phoned Tom O’Higgins I read many of the judgements he had given over the previous decade. I had expected, because of his Norris judgement and his call to Brian Walsh on St Patrick’s Day 1984 and what was generally said about him, to find an old-fashioned right-wing judge, steeped in Blueshirt traditions; but his position on the court was much more interesting and complex than that. There were many cases, including cases involving suspects and prisoners, in which his judgements were liberal and humane and far-reaching, and he could not be easily dismissed.
I was surprised at how simple it was to speak to him by phone and how relaxed he seemed about seeing me. While it was clear that our conversations were to be off the record, he put no other restrictions on their scope or focus. I saw him in his chambers. He spoke a great deal about his family and his background in Fine Gael, and managed in the nicest possible way to say very little about the Court. I had a feeling that the work of Ó Dálaigh and Walsh did not interest him as much as politics did. He had been a TD and a minister for health and run twice for president, coming within 10,000 votes of defeating Éamon de Valera in 1966.
Over the months as I worked, the shadow of the 1983 abortion referendum, in which the electorate had approved a constitutional amendment establishing that the unborn child had a right to life equal to that of the pregnant woman, loomed large. In the magazine we had been vehemently opposed to the idea of the referendum itself, and to its wording. In that period you judged people by what side they had been on in that debate. I knew, for example, as I sat in the chamber of the High Court judge Rory O’Hanlon, that he had been in favour of the referendum and may even have had a hand in the drafting of the dreadful wording, as indeed Brian Walsh might have had. A year earlier, in my mind, O’Hanlon had been a great demon. Now, as we sat talking, I found him remarkably likeable, even more than Brian Walsh. These men reminded me that I was not from Dublin, that I had been brought up in a conservative, deeply nationalist household in provincial Ireland in which the Fianna Fáil party and Ireland were synonomous. My father used to say that you could salute Fine Gael people if you met them, but if you ever voted Fine Gael your right hand would wither off.
These men reminded me that my liberalism did not quite belong to me. And, as far as I know, it never occurred to any of them that I was homosexual, both pathological and incurable. I had a great deal in common with them, and slowly out of my conversations with them grew not only an article, but a novel, one in which I would use every part of my own childhood and background and marry it with the way in which these men had managed to change Ireland and keep it the same. Up to then I could only imagine a novel about Fianna Fáil as a comic novel, or a satire, or an angry attack. I had no interest in wasting my time on a book like that. But in those days in the chambers of O’Hanlon or in Walsh’s office or during other interviews I began to feel almost tender about my Fianna Fáil background, a background which up to then had been a sort of embarrassment. I began to see how a serious novel about aspects of the party could be written.
One day, as I was sitting in Rory O’Hanlon’s chambers, his tipstaff came to say that the jury had returned. They had been out a long time, which was why he could see me during working hours. He told me not to move, he would go down to the courtroom and come back soon. I sat alone in his chambers looking out at the river. After about forty-five minutes he came back and removed his wig and gown and sat down to resume our discussion. Almost in passing he remarked on the strangeness of the case he had just heard. ‘I thought they were going to come back with a manslaughter verdict,’ he said. ‘But they decided it was murder.’ I realized that as I had sat dreaming, he had been sentencing a man to life imprisonment, the mandatory sentence for murder. I realized that only a novel would do justice to justice as it sat in front of me, full of both charm and steel, ready to discuss the law in practice and in theory.
One evening soon afterwards, as I was coming towards the end of my research on the Supreme Court, and indeed of my time as editor of Magill, I was sitting in the plush home of a leading Fianna Fáil barrister who was helping me a great deal with the article. He had the best memory of all of them and perhaps the sharpest mind. His wife came into the room for a moment and asked us if we had everything we needed. We told her we were fine. She was what we call in Ireland a very nice woman. She smiled and said that she was off to a pro-life meeting. She closed the door. I knew as I walked home that evening that I had my novel now. I could finish The South without worry because the next one, The Heather Blazing, which would deal with the ambiguous place where poetics and politics meet, a novel in which I could both put myself in and leave myself out, was clearly and firmly in my mind. I had the husband and the wife. My brush with the law had been well worth it.
Read more in The Dublin Review issue No. 28 Autumn 2007