Obituary: Judge Niall McCarthy

Niall St John McCarthy, barrister and judge, born Cork 25 May 1925, called to the Irish Bar 1946, Inner Bar 1959, Chairman Irish Bar Council 1980-82, Supreme Court 1982-92, married 1952 Barbara Foley (died 1992; two sons, two daughters), died Seville Spain 1 October 1992.

THE SUDDEN death of Mr Justice Niall McCarthy (killed in a car crash with his wife Barbara near Seville) has deprived the Irish Supreme Court, long a bastion of independent judicial thinking, of one of its most incisive intellects.

His legal conclusions were invariably concise and delivered with an articulate certainty, sometimes passionate force. His special distinction was in presenting the law not as cold abstracted logic, but an instrument with real human consequences.

This was never more evident than last March in the so-called 'X' case, when from the bench he lambasted Ireland's politicians for nine years of inactivity in failing to give the courts any legislative guidance on interpreting in practice the 1983 amendment to the constitution giving the unborn foetus an equal right to life to the mother.

Their failure in this was 'not just unfortunate, it's inexcusable', he said with undisguised rage. He was on the majority side when the judges decided four to one that the 14-year-old alleged rape victim at the centre of the case was entitled to go to Britain for an abortion. The 'real and substantial risk to the life of the mother' had to predominate, they held.

His career as a barrister reads like a roll-call of Ireland's most celebrated cases of recent years. In the 1970 Arms Trial McCarthy defended the recently sacked finance minister Charles J. Haughey, who faced gunrunning charges. Haughey was acquitted, a legal victory rewarded 12 years later when the politician, now a resurgent premier, appointed him to the Supreme Court.

By then Niall McCarthy, whose workload ranged from commercial and personal injury cases to libel, was reputedly the Irish Bar's top earner. He was a prominent figure in a succession of high-profile tribunals. He represented Gulf Oil at the inquiry into the Whiddy terminal disaster, and the Butterly family in the tribunal on the 1981 Stardust disaster after 48 young Dubliners died in a St Valentine's Day night-club fire.

His defence of the rights of the individual was emphasised in such Supreme Court judgments as that where he argued that criminalisation of homosexuality infringed the Irish constitution. In 1990 he and his four colleagues agreeed unanimously that two IRA Maze escapers could not be extradited back to Northern Ireland because of a 'probable risk' that they would be assaulted by prison staff there.

Margaret Thatcher called the decision 'deeply offensive and unjustified, offering nothing but encouragement to terrorists'. In Ireland the decision confirmed the Supreme Court judges' reputation for complete independence from the political sphere, upholding a firm conviction that the constitution was the law and had to be implemented as it was.

With his forceful colleague Mr Justice Brian Walsh, he also helped build the view that Irish law should not be an antique remnant of British rule but a living entity within a modern Ireland.

He showed limited patience for the more anachronistic rites of the courts. He found the sight of male wigs on women barristers 'comic'. Wearing wigs represented a protection of lawyers from their clients 'with a sort of forensic condom' he maintained. He himself believed judges should not be remote, but accessible to society, and happily made himself available as a conference and after-dinner speaker.

(Photograph omitted)

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