Wednesday 23 January 2019

Go-to solicitor who fought to keep gay men out of prison

Garrett Sheehan learned so much from defending men charged with indecency, writes Maeve Sheehan

HEROES: Retired judge Garrett Sheehan
HEROES: Retired judge Garrett Sheehan
Senator David Norris
Edmund Lynch
Maeve Sheehan

Maeve Sheehan

A Garda sergeant crept through the front garden of a house to peer into a ground-floor window. Inside were two men he would later claim were engaged in a sexual act. Nowadays that sergeant could find himself in trouble for snooping on a moment of intimacy between consenting adults in the privacy of their own home. In the flatlands of Rathmines in the 1970s, the consenting adults were criminals.

The men were arrested, charged with gross indecency and hauled before the District Court. The case is still vividly recalled by the retired judge, Mr Justice Garrett Sheehan, who was then the go-to solicitor for gay men when sex between them was a crime.

His clients were convicted, "based on evidence of a sergeant from Rathmines going into the front garden of a house that was in apartments, peering through the window and maintaining that he had seen sexual activity between two adult men", says Sheehan.

"On that basis, these two men were prosecuted, convicted and sent to prison. It is something that always sticks in my mind. It was very troubling."

Last week, the Government issued an apology for the wrongs done to gay men, and today Ireland's first gay Taoiseach, Leo Varadkar, hosts an event at Dublin Castle to mark the 25th anniversary of the decriminalisation of homosexuality, with a glittering guest list of some 500 campaigners, activists, politicians and advocates, among them Mr Justice Sheehan.

Long before he became a judge of the High Court and Court of Appeal, Sheehan was a young solicitor building a practice around criminal defence. He was not a campaigner and he didn't know Senator David Norris. "It just happened one day that David Norris asked me if I would represent someone," he says now.

He modestly suggests his relative youth as a lawyer in a small pool of criminal defence practitioners probably had something to do with his being chosen. "In so far as I can remember, the other three solicitors involved in that work at the time were probably twice as old as I was," he says. He was also attuned to injustice.

"I really was very much aware, and from friends that I had who were gay, that this whole legal stuff was grossly unfair," he says. "You have a sense that this was unjust, that people must not be treated in this way, people must be free to get on with their lives and be themselves, and that it was just not on."

He can't recall now the details of each case he defended, or even how many - he thinks it was certainly fewer than 20. His clients were most often charged with gross indecency under a law dating back to 1885, sometimes with loitering or some other public order offence.

"I do remember people being sent to prison. I do remember being consulted by a number of people at that time who were deeply traumatised as a result of being stopped by the police and threatened with prosecution.

"It was for a number of people a very, very difficult time. Particularly when it became known that the police were going to prosecute people," he says.

There was no radical legal strategy. Often men facing prosecution tended to plead guilty rather than face a public trial. With Sheehan representing them, prosecution evidence was challenged. Convictions and sentences were routinely appealed to the Circuit Court, where sentences were often reduced, or, on occasion, cases thrown out altogether.

Judges could be unforgiving. "Some of the things that got said from the bench could at times be quite disturbing," he says.

Judges expressed "their personal abhorrence for what they had been told by the garda in evidence. They found it very, very difficult to cope, and I suppose they were of a generation, or they seemed to be of a generation, where they said they didn't know anybody who was gay. But, of course, I'm sure they had friends or colleagues who were, for sure".

He recalls a couple of his gay clients asked Fr Michael Cleary to appear as a character witness. At the time, the priest was a 'Fr Trendy' figure. It transpired the late priest knew a thing or two about concealing his sexuality, having secretly fathered two children with his housekeeper, Phyllis Hamilton.

There are no comprehensive statistics on convictions for consensual same-sex acts, the numbers who went to jail or those prosecuted. The gay men who were criminalised rarely, if ever, told their stories. According to Tonie Walsh, of the Irish Queer Archive, they probably never will.

Speaking in the Dail last Tuesday, Taoiseach Leo Varadkar cited Professor Diarmaid Ferriter's calculation of 455 convictions between 1962 and 1972 and a separate figure of 44 prosecutions in three years to 1979, the year Varadkar was born.

Regardless of numbers, Mr Justice Sheehan points out that "the fear of prosecution was kept alive by virtue of the fact that there were some prosecutions. That [fear] spread very quickly and, if I'm not mistaken, I think that caused people to leave this country".

Prosecutions "fell away" in the early 1980s. Social change was undoubtedly a factor. Having a good lawyer to fight men's corner in the courts was also vital, according to campaigners from that time.

The murder in 1982 of Charles Self, a gay set designer at RTE, was a turning point. "Police were arresting a lot of people without any great cause - the suspicion was they were gay, rather than that they had any involvement.

"I would think that at a certain point, there must have been, particularly at senior levels in the police force, a realisation that it was entirely inappropriate to be prosecuting people in those circumstances," Mr Justice Sheehan says.

"I would say that was largely attributed to the campaign and the growing public support for the Irish gay rights movement."

He credits the "endless work" and "tireless campaigning" of Norris and Edmund Lynch, an RTE producer, and others at that time, who were involved in founding the Hirschfeld Centre that became the focus for gay rights. In fact, he agreed to be interviewed in order to pay tribute to them. Norris, he says, took enormous financial and personal risks in putting his name to a legal challenge that went all the way to Europe and which ultimately helped undo Ireland's backward laws on homosexuality.

"I learned from them," says this esteemed lawyer, who presided over many murder trials as a judge of the Criminal Courts of Justice, and won praise from his peers for representing "vulnerable groups on the fringes of society" when he retired as judge of the Court of Appeal.

"It taught me something. I think that you have to be a little bit less judgmental. They did really teach you something about their humanity, when you saw the way this team of people looked after each other, the people running these campaigns. They operated at a number of levels and they looked after people," he says.

"I was honoured to be asked to do it and I learnt a lot."

Sunday Independent

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