William O'Brien (judge)

William O'Brien (1832–1899) was an Irish judge, mainly remembered now for presiding at the trials which resulted from the Phoenix Park murders.

Biography

He was born at Bloomfield, County Cork, son of John O'Brien and his wife Mary Bunbury of Kilfeade.^[1] He went to school in Midleton, entered Gray's Inn in 1852 and was called to the Irish Bar in 1855, becoming Queen's Counsel in 1872.^[2] To supplement his earnings he also worked for a time as a journalist. He built up a large practice and became wealthy enough to endow a chapel in Newman University Church, St. Stephen's Green. Ball regarded him as a fine criminal lawyer: Healy thought he was rather lazy, with the traditional barrister's fault of arguing a case without reading his brief properly. Unlike most ambitious barristers of the time he did not show much interest in politics, although he stood unsuccessfully for the House of Commons in 1879.

He was appointed a judge of the High Court of Justice in Ireland in 1882, serving in the Queen's Bench Division until his death in 1899.^[3] Even a glowing obituary in the Law Times admitted that he had not been highly thought of as a barrister, and it was believed that he owed his appointment to the wish of his friend the Lord Chancellor of Ireland, Sir Edward Sullivan, 1st Baronet, who was almost all- powerful in this sphere.^[4] Apart from the Phoenix Park case, his most notable trial was of Patrick Delaney for the attempted murder of O'Brien's colleague James Anthony Lawson. He never married.

Phoenix Park Murders

Murders

Lord Frederick Cavendish

On 6 May 1882 the newly arrived Chief Secretary for Ireland, Lord Frederick Cavendish, went for a walk in Phoenix Park, near his official residence, with Thomas Burke, the long-serving Under-Secretary. They were attacked by members of a secret society, the Irish National Invincibles, which had planned Burke's assassination : Cavendish, who was not the killers' target, intervened to help Burke and both men were stabbed to death.^[5]

The police were criticised for conducting a dilatory investigation, but in fact Superintendent John Mallon, who was in charge of the case, quickly learned the identity of the killers through his network of informers, and within a few months arrested all of them, together with a number of accessories to the crime.^[6]

Trials

Under interrogation James Carey, the leader of the Invincibles, cracked: he was persuaded to give evidence against his fellow assassins, as were Michael Kavanagh and Joe Hanlon.^[7]

In a lengthy series of trials beginning on 11 April 1883 Joe Brady, Tim Kelly, Dan Corley, Thomas Caffrey and Michael Fagan were tried and convicted for murder; all were subsequently hanged.^[8] The driver of the cab, James Fitzharris (nicknamed Skin-the-Goat) was acquitted of murder but served a prison sentence as an accessory, as did Patrick Delaney, the would- be assassin of Mr. Justice Lawson, and several others.

Grave of James Fitzharris alias Skin the Goat

The only case which gave any real difficulty was that of Tim Kelly: he was still in his teens and of exceptionally youthful appearance, so that the impression, of which his defence counsel made full use, that a child was being tried for murder took hold on the public's imagination. Two juries evidently had qualms about condemning him and he was convicted only after an unprecedented third trial.^[9]

Judge's role

Maurice Healy, who had an extremely poor opinion of O'Brien's judicial qualities, called his conduct of the trials grossly unfair, in particular that of Joe Brady whose counsel in Healy's opinion were given inadequate time to prepare his defence.^[10] Senan Moloney, in his detailed account of the murders, makes no particular criticism of the judge: while his summing-up may have clearly indicated his belief in the guilt of all the accused, in fact there is little doubt that they were all guilty. While the three trials of Tim Kelly caused some public unease, the decision to retry him was the central Government's, not the judge's.

Reputation

Probably the fullest sketch of O'Brien is by Maurice Healy in his memoir The Old Munster Circuit. Since Healy was extremely proud of the overall quality of the Irish judiciary, it is interesting that he made an exception for O'Brien "a man who worked more injustice in his daily round that the reader would believe possible".^[11] Healy's description of O'Brien must however be treated with caution: he was only twelve when the judge died, and though as a schoolboy he would sometimes attend Court when O'Brien was sitting, he admits that most of what he knew of him was second-hand.^[12]

Healy thought that O'Brien's conduct of the Phoenix Park trials was grossly unfair, and that this was typical of his conduct in criminal cases in general: O'Brien invariably regarded the accused's guilt as self-evident, did everything possible to assist the prosecution, and disregarded the fundamental rule that the jury in determining the accused's guilt or innocence must not hear evidence of any prior convictions.^[13] In civil cases, though less biased, he was impatient and argumentative: since the Bar had no respect for him he was unable to impose his authority in Court.^[14] Healy recalls a story that when O'Brien angrily told Serjeant Ronan, one of the leaders of the Irish Bar, that it is the judge's task to law down the law, Ronan replied that if a judge does not know the law, as O'Brien clearly did not, it is counsel's task to teach it to him.^[15] On another occasion he asked Walter Boyd: "where is your respect for this court?". Boyd, who was always famous for plain speaking, replied that "the Court is receiving the exact degree of respect it deserves".^[16]

A more serious charge which Healy repeated, and apparently thought credible, was that O'Brien once took a bribe to influence the outcome of a libel action; such a charge of corruption was almost without precedent in the history of the Irish judiciary.^[17] The rumour must be treated with caution since as already noted Healy's knowledge of O'Brien's character was largely second-hand, nor does there seem to be any independent evidence that the judge was corrupt.^[18]

Francis Elrington Ball, in his definitive study of the pre-Independence judiciary, gives a shorter but much more favourable view of O'Brien, whom he regarded as a good lawyer, and also a man of courage who was prepared to put his life in danger by presiding at the Phoenix Park trials.^[19] That O'Brien had his admirers is clear from his obituary in the Law Times which called him a great judge in respect of learning, intellect and character;^[20] although Healy believed that he lacked all these qualities.^[21]

References