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A menace in the District Court

Village names a retired judge who pursued a woman who appeared before him in family law proceedings

By Michael Smith

A woman from Lithuania moved to Ireland when she was 20 and arranged to finish her master’s degree while working in Kerry. She got married in 2007. A few years later the marriage broke down and she applied for a protection order in the District Court. For this and other reasons the woman went on medication for stress.

The parties can’t be named for legal reasons. After three appearances in the District Court, she got an interim barring order.

Strangely, in the context of her husband having to notify her when he visited neighbours of hers, the Judge asked the woman and her husband for their telephone numbers.

She was surprised at the request but her solicitor insisted it was okay so she gave it. She says her solicitor told her several times that if the judge’s mood was bad he would not grant the barring order.

Later that day, she noticed a missed call on her mobile phone. She called back and after some confusion realised she was talking to the judge who had heard the case.

“I was then getting stressed out”, she said in a statement to the Garda. “I asked was something wrong with the case – should I go back. The man replied ‘no everything is good with the case. I just wanted to talk to you’. He said, ‘you looked very beautiful today’. I said ‘Ok’. He then said, ‘no, no really’. At this point I asked is this a prank call. He said, ‘no, no I just rang’”. He told her not to tell anyone he had rung.

The following month, the judge rang again, she claims [phone screen pictured above]. She told him she was going on holidays and he suggested they should meet when she got back. While away, she says she received a text from the judge [pictured below]. “Hi how are you? Enjoy the sunshine”. He signed it James. He told her to be discreet so she filled in only his initials in her contacts.

She responded “All is good in Fuerteventura sky. Plenty of ice cream to keep kids happy and quiet”. The judge replied “Enjoy” with a smiley emoji.

On her return she received another phone call from the judge. “He asked were we back from holidays and said my skin must look nice now”. She says “I didn’t reply, just ignored but now it was weird. I was still thinking there must be something he wanted to tell me”. He wanted her to give him her home address.

Some weeks later the judge phoned her looking to meet her. She ignored calls and texts on his mobile but eventually replied. She says she thought he might give her advice. According to her statement she met him in another town during his lunch break from court. She says she then realised “from his body language” he was pursuing her romantically and she was afraid. He also told her his wife must know nothing about their meeting. She says she hadn’t realised he had a wife.

A month later she says he again called wanting to meet her immediately but she said she was busy with her kids. He never called or texted again. He heard her case one more time and extended the protection order for three months rather than the six months the woman sought. He had kept postponing his final decision on whether to grant a protection order.

She has heard nothing more from him. He retired in July 2018. He had asked to have his retirement delayed by a year and that was agreed. Over Christmas 2017 he strangely heard some cases – including family cases – in his own home, apparently because he was sick. And he spent his last six months on sick leave. The relevant committee which must satisfy itself as to medical fitness subsequently declined to extend his tenure further as he was seeking.

The judge, who was appointed by John O’Donoghue, was not generally very well regarded though the Healy Raes commended him when he retired. During his time on the bench in Kerry, his application of the court poor box in lieu of, or in mitigation of, conviction was widespread and a great deal of time was taken up with bids from delinquent litigants and their lawyers until the acceptable amount was given a judicial nod. In 2012 his own name came up in his court on charges that he didn’t have a valid NCT disc on his car. He adjourned the case immediately saying the court would be contacting the Courts Service to ask the president of the District Court “to get down an independent judge to hear the case”.

The woman read in a local newspaper about a sexual assault and several people told her the judge was the alleged perpetrator. She then told her lawyers what the judge had done with her and they advised her to go to the Garda and to employ a solicitor who specialised in crime. She employed a well-known solicitor, who suggested she might have a personal injuries claim against the judge for the stress caused. But she did not have much money, didn’t want to go to court and felt the suggestion was “nonsense”.

Her original lawyers also advised her to write to the President of the District Court, Rosemary Horgan. She has now written to her as well as to the Chief Justice though extraordinarily she has received no replies.

She made a complaint to the Garda who were investigating the other assault that what the judge did to her was “sextortion” but it seems unlikely the matter was a crime. They took her phone and retrieved the relevant texts and details of the calls but she claims she was not asked to provide a statement until three months after her initial complaint, and after a reporter submitted a query to the Garda press office. The Garda did not press charges.

She then complained to the Garda Ombudsman, now saying that the judge had wanted to meet her in her house for “sexual activity” but there seems to have been little they could do since it was a stretch to characterise the behaviour as criminal and therefore the Garda itself had no role.

It was, nevertheless, entirely improper for the judge to contact the young woman. The problem is finding a remedy.

The department of justice says the conduct and management of all court business, including court sittings, is the responsibility of the president of each court.

However, it is also not clear what role the president of the district court could play after a judge retired.

Moreover, although a judge can be removed from office for “stated misbehaviour or incapacity”, the impeachment procedure requires resolutions to be passed by the Dáil and the Seanad and has never been successfully used. In this instance the judge has retired but in any event removing him from office would probably have been excessive.

The truth is the matter should have been dealt with by the Judicial Council which has a judicial conduct committee to facilitate investigation of allegations of misconduct. But it had not yet been formed when the alleged incidents took place and appears to have no retrospective remit.

The woman wrote to Helen McEntee, Minister for Justice, and she ultimately received the following reply:

“The Minister would once again like to draw your attention to the Judicial Council Act 2019. The Act provides for the establishment of a Judicial Council, which will promote and maintain excellence in the exercise by judges of their judicial functions and high standards of conduct among judges. A Judicial Conduct Committee was established on 30 June 2020 and will consider complaints against judges and refer them either for informal resolution or for formal investigation. The Committee will also prepare draft guidelines concerning judicial conduct and ethics for adoption by the Council”.

This letter was disingenuous and cruel because it was too late for the woman, since the judge retired before the Council was instigated in December 2019. The incident is not the only one involving judicial impropriety in Kerry. Or indeed the same judge.

A second woman who had also appeared before him in a family proceeding alleged the judge began to frequent a hotel where she regularly went for lunch.

She alleged that he subsequently sexually assaulted her twice after meeting her at a book launch in another hotel. She claims one of the assaults was captured on CCTV, but that the picture quality was poor. A file was sent to the DPP, but she found insufficient evidence to bring a charge.

The second woman alleged gardaí did not speak to the former judge for seven months and that her clothes, which were given to the Garda as evidence, were not properly stored.

GSOC did not uphold either of the complaints subsequently made about the Garda handling of their cases by each of the two women.

In January 2018 ‘Kerry’s Eye’ had splashed on its cover , ‘Top figure in Garda sex Assault probe; Exclusive: WOMAN MAKES SHOCKING SEX CLAIM’. Two months later it reported that the Garda were to question an unspecified “high-profile” figure. The Lithuanian woman contacted the journalist who wrote the story and he wrote another story saying there was a second complaint against the unnamed “top figure”.

Too often the media are fearful to name the culprits when they are judges. While he is innocent of the second case of alleged sexual assault, in the case of the Lithuanian woman the criminal law, impeachment, censure by the president of the district court and consideration by the judicial conduct committee of the Judicial Council seem all to be inappropriate or impossible remedies for varying reasons.

Justice in this case may best be advanced simply by the direction of public attention: naming the former judge.

He is James O’Connor