Niall McCarthy (judge)
Encyclopedia
Niall McCarthy was a Justice of the Supreme Court of Ireland and a barrister.
, the Christian Brothers
in Dun Laoghaire
and University College Dublin
, he was called to the Bar
in 1945 and the inner Bar in 1959. He was chairman of the Bar council between 1980 to his appointment to the Supreme Court in 1982. A renowned barrister of his day, his work included representing Charles Haughey
in the Arms Trial and to act for Gulf Oil in the Whiddy tribunal
(1979) and for the owners of the Stardust fire venue (1981): he was the country's advocate of choice for two decades.
He sat in 238 reported cases and a much larger number of unreported cases. Judicial writing is often dry, but the advocate's panache occasionally surfaced: in McGarry v. Sligo County Council [1991] 1 Irish Reports 99, the case which prevented the Carrowmore megalithic tombs complex from being turned into a pithead, he quoted a Yeats verse and heartily endorsed a German archaeologist's rhetorical question, ‘Do the Irish have no pride?’
In Norris v. Attorney General [1984] I. R. 36, heard only a few months after McCarthy's appointment, his dissenting judgment is a tour de force of classic liberalism. He noted that under the law as it then stood, the male homosexual suffered legal sanctions not visited upon ‘the venal, the dishonest, the corrupt and the like’. He expounded a notably broad theory of the legal standing necessary to raise particular constitutional issues and firmly rejected the view, analogous to American ‘originalism’, that the mores prevailing when the constitution was adopted in 1937 are determinative of a contemporary constitutional challenge. He plangently asserted the right to privacy, at the end of perhaps the most important and influential dissenting judgment for fifty years.
In Trimbole v. Governor of Mountjoy Prison [1985] I. R. 550, McCarthy firmly rejected the view that a state (in that case, a garda) illegality might lead to judicial rebuke but should not interfere with the result of the case. The authorities, he said, ‘must not be permitted to think’ along those lines. On the contrary, such conduct:
will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the court's creation; they spring from the police illegality.
In Attorney General v. X
[1992], the notorious abortion injunction case, he eschewed the narrow ground that found favour with some others and baldly declared ‘to go to another State to do something lawfully done there cannot . . . admit of a restraining order’. He pointed to the obvious need for legislation to reconcile the separate rights acknowledged in the eighth (abortion) amendment to the constitution: ‘The failure of the Legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.’ The amendment itself was, McCarthy said, ‘historically divisive of our people’.
On 21 August 1992, just weeks before his sudden death, McCarthy delivered a coruscating dissent in AGv. Hamilton [1993] 2 I. R. 250, the case that upheld the Reynolds government's claim to absolute confidentiality for cabinet discussions. This was in the context of the Hamilton tribunal enquiries into the issue of export credit insurance: McCarthy appended to his judgment the civil service note of what Mr Reynolds had said the government had decided on that topic. Though McCarthy was in the minority (with Mr Justice Séamus Egan (1923–2004)), the absolute confidentiality found to attach was removed by the twelfth amendment to the constitution of 1997.
In 1991, he and his wife were killed in an accident in Spain whilst he was a sitting judge.
Early life
His father was a district court judge. Educated at Clongowes Wood CollegeClongowes Wood College
Clongowes Wood College is a voluntary secondary boarding school for boys, located near Clane in County Kildare, Ireland. Founded by the Society of Jesus in 1814, it is one of Ireland's oldest Catholic schools, and featured prominently in James Joyce's semi-autobiographical novel A Portrait of the...
, the Christian Brothers
Congregation of Christian Brothers
The Congregation of Christian Brothers is a worldwide religious community within the Catholic Church, founded by Blessed Edmund Rice. The Christian Brothers, as they are commonly known, chiefly work for the evangelisation and education of youth, but are involved in many ministries, especially with...
in Dun Laoghaire
Dún Laoghaire
Dún Laoghaire or Dún Laoire , sometimes anglicised as "Dunleary" , is a suburban seaside town in County Dublin, Ireland, about twelve kilometres south of Dublin city centre. It is the county town of Dun Laoghaire-Rathdown County and a major port of entry from Great Britain...
and University College Dublin
University College Dublin
University College Dublin ) - formally known as University College Dublin - National University of Ireland, Dublin is the Republic of Ireland's largest, and Ireland's second largest, university, with over 1,300 faculty and 17,000 students...
, he was called to the Bar
Bar council
A bar council , in a Commonwealth country and in the Republic of Ireland, the Bar Council of Ireland is a professional body that regulates the profession of barristers together with the King's Inns. Solicitors are generally regulated by the Law society....
in 1945 and the inner Bar in 1959. He was chairman of the Bar council between 1980 to his appointment to the Supreme Court in 1982. A renowned barrister of his day, his work included representing Charles Haughey
Charles Haughey
Charles James "Charlie" Haughey was Taoiseach of Ireland, serving three terms in office . He was also the fourth leader of Fianna Fáil...
in the Arms Trial and to act for Gulf Oil in the Whiddy tribunal
Betelgeuse incident
The Betelgeuse incident, also known as the Betelgeuse or Whiddy Island disaster, occurred on 8 January 1979, at around 1:00 a.m., when the oil tanker Betelgeuse exploded in West Cork, Ireland, at the offshore jetty of the Whiddy Island Oil Terminal, due to the failure of the ship's structure...
(1979) and for the owners of the Stardust fire venue (1981): he was the country's advocate of choice for two decades.
Supreme Court
On the supreme court, to which he was appointed on 1 November 1982, McCarthy seen as a consistently liberal voice. Though a firm respecter of the separation of powers, he was entirely without deference to the executive and sometimes took government and legislature severely to task. He berated the Government for its "inexcusable" failure to introduce appropriate laws with regard to abortion. He was affectionatly known by his colleagues as "God".He sat in 238 reported cases and a much larger number of unreported cases. Judicial writing is often dry, but the advocate's panache occasionally surfaced: in McGarry v. Sligo County Council [1991] 1 Irish Reports 99, the case which prevented the Carrowmore megalithic tombs complex from being turned into a pithead, he quoted a Yeats verse and heartily endorsed a German archaeologist's rhetorical question, ‘Do the Irish have no pride?’
In Norris v. Attorney General [1984] I. R. 36, heard only a few months after McCarthy's appointment, his dissenting judgment is a tour de force of classic liberalism. He noted that under the law as it then stood, the male homosexual suffered legal sanctions not visited upon ‘the venal, the dishonest, the corrupt and the like’. He expounded a notably broad theory of the legal standing necessary to raise particular constitutional issues and firmly rejected the view, analogous to American ‘originalism’, that the mores prevailing when the constitution was adopted in 1937 are determinative of a contemporary constitutional challenge. He plangently asserted the right to privacy, at the end of perhaps the most important and influential dissenting judgment for fifty years.
In Trimbole v. Governor of Mountjoy Prison [1985] I. R. 550, McCarthy firmly rejected the view that a state (in that case, a garda) illegality might lead to judicial rebuke but should not interfere with the result of the case. The authorities, he said, ‘must not be permitted to think’ along those lines. On the contrary, such conduct:
will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the court's creation; they spring from the police illegality.
In Attorney General v. X
Attorney General v. X
Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....
[1992], the notorious abortion injunction case, he eschewed the narrow ground that found favour with some others and baldly declared ‘to go to another State to do something lawfully done there cannot . . . admit of a restraining order’. He pointed to the obvious need for legislation to reconcile the separate rights acknowledged in the eighth (abortion) amendment to the constitution: ‘The failure of the Legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.’ The amendment itself was, McCarthy said, ‘historically divisive of our people’.
On 21 August 1992, just weeks before his sudden death, McCarthy delivered a coruscating dissent in AGv. Hamilton [1993] 2 I. R. 250, the case that upheld the Reynolds government's claim to absolute confidentiality for cabinet discussions. This was in the context of the Hamilton tribunal enquiries into the issue of export credit insurance: McCarthy appended to his judgment the civil service note of what Mr Reynolds had said the government had decided on that topic. Though McCarthy was in the minority (with Mr Justice Séamus Egan (1923–2004)), the absolute confidentiality found to attach was removed by the twelfth amendment to the constitution of 1997.
In 1991, he and his wife were killed in an accident in Spain whilst he was a sitting judge.