Wednesday 19 June 2019

Hardiman is a significant loss to legal system

When Judge Adrian Hardiman died last year, the State lost one of its most powerful voices, writes Patrick Geoghegan

Judge Hardiman. Photo: Collins
Judge Hardiman. Photo: Collins

Patrick Geoghegan

This Tuesday marks the one-year anniversary of the sudden death of Supreme Court judge Adrian Hardiman. Over the past 12 months there has probably not been a day when I have not thought about him and felt his absence. From talking to his family and many friends, I know I'm not alone in this.

When the shocking news was announced on March 7 last year, there were a number of eloquent tributes. I was struck by what was said, not just by those who knew him and were familiar with the enormous contribution he had made to the State, to the law, and to scholarship, but by complete strangers as well. One man tweeted of how he had once emailed Adrian asking for help with 'a run-of-the-mill' college assignment. Adrian invited him to his office in the Supreme Court and spent a considerable time chatting about various aspects of defamation. A law student in Trinity, who had never met him, tweeted that she had almost dropped out of her course, but had been inspired to continue because of his powerful dissent in the DPP v JC (2015) judgment.

I think that Adrian himself would have been amused and entertained by the tributes on Twitter after his death. It was a social medium he was fascinated by, even if truth be told he didn't really understand how to use it. Sometimes I would email him screenshots of particular tweets that I thought might interest him. In the aftermath of his powerful judgment in the JC case, I sent him a couple of the comments. One was, 'In fairness Mr Justice Hardiman is a legend #dissenting #exclusionaryrule'. Another asked 'If Adrian Hardiman thinks the Supreme Court decision is b******t, who am I to disagree?'

For anyone who isn't sure what kind of judge he was, or the contribution he made to the State, then a good place to start is that dissenting judgement. Delivered on April 15, 2015, and available to read online, it is a searing indictment of the abuse of power, and the need to ensure that the rights of the individual are always protected. Providing a voice for the ordinary citizen, Judge Hardiman (pictured below) asserted that if the Irish Constitution was to mean anything, if it was to be more than just ''mere words on a page'', then it must follow that ''no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen''. He noted defiantly that, even if he had to stand alone, he would protest against any such proposal. He called the possibility of retrying someone for the same crime, after the law had been changed to assist a conviction, ''gamesmanship of the worst and most cynical kind by public officials'', and added: ''It will not be approved in my name."

Some of his observations on abuses of power in An Garda Siochana were an eloquent warning to the State - and crucially are just as relevant today. Making reference to some other cases he had been involved with as a judge, most notably the in famous Frank Shortt case, he did not temper his criticism. It was, to quote Judge Hardiman, ''an appalling example of a deliberate garda conspiracy to perjure an innocent man into prison for no better reason than to enhance the careers of certain gardai... with total indifference to humanity or justice''. He did not add that he himself had done more than anyone to overturn that injustice. When Judge Hardiman died, the State lost one of its most eloquent, fearless, and powerful voices.

Of course there was so much more to Adrian Hardiman than the law. I first got to know him in 2003 during the events to mark the Robert Emmet bicentenary, and a friendship quickly developed over a shared love of history. Hardiman the historian was original and perceptive, and his writings on the Emmet trial, the 1916 court martials, and other legal cases were ground-breaking and authoritative. He was also renowned as a Joycean scholar, and had completed a book on the subject of Joyce and the law that is being prepared for publication. Often Adrian introduced historical references to elucidate his legal points. In 2007 in O'Callaghan & ors v Judge Alan Mahon & ors he used Daniel O'Connell's famous Doneraile case to explain how convicting someone ''on the basis of a prior inconsistent statement'' that was suppressed ''was clearly repugnant to the conscience of a judge''. Sadly he never managed to sneak into one of his judgments a reference to some wisdom from popular culture that reflected his wider beliefs - ''you just can't use the law to nag''. In terms of oratorical and legal ability, Hardiman has rightly been compared to O'Connell. There was also a similar knack for finding ingenious solutions to difficult problems. At the inaugural Daniel O'Connell summer school in Derrynane, Adrian was preparing to speak, but wondered whether he should respond to some silly and ridiculous comments made in earlier sessions (for example, that O'Connell would be in favour of military intervention in Syria). Complicating matters, a journalist from the Irish Times was present, and Adrian feared engaging in controversy and generating a news story.

So instead he delivered his opening remarks in fluent Irish, with the audience laughing uproariously as he tore into the offending comments, before delivering a brilliant speech in English on the subject of his talk. The next day, the opening remarks were not reported.

While there have been wonderful tributes to the greatness of Hardiman, it should not be forgotten that he was also a good man.

As a friend, he was not just there when things were going well. It was when you felt at your lowest, that you saw his real greatness, his kindness, and the value he placed on friendship. He was extraordinarily good company.

Patrick Geoghegan is professor of history at Trinity College Dublin, and presents the award- winning Talking History on Newstalk radio.

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