Retired Court of Appeal president reflects on a life in law after early political detour

Three children finding their mother’s body in the garage of their family home conjures up a horrific image few could forget.

This was the 1996 murder of 33-year-old Patricia Murphy by her husband, David Murphy, at their home on Griffith Avenue on the northside of Dublin, which was among many serious cases George Birmingham prosecuted as a barrister.

The case stood out, both for its dreadful nature and because it made legal history when the children testified in 1998 via video link, the first time Irish courts used that technology, Birmingham recalls. He took the children, the youngest just five, through their evidence.

It is just over three months since Birmingham – then just a week shy of his 70th birthday – retired as president of the Court of Appeal, the second most senior judicial position in the State.

Birmingham’s was a legal career interrupted for several years in the 1980s by a detour into politics when he served as a Fine Gael TD for Dublin North Central and stints as a Minister of State in three Government departments.

Speaking to The Irish Times, he reflects on his career, and on the changes he has seen – and some he would like to see from the vantage point of almost five decades of experience in law and politics.

The Bar seemed a “natural” career option for the Clontarf-born Birmingham given his interest in debating. He attended Trinity College and the King’s Inns, and became a barrister in 1976.

His passion for politics derailed his legal career for a time. He was involved at executive level in Fine Gael while at Trinity, and topped the poll in the local elections in 1979, marking the beginning of his “Boy George” era, a nickname the media coined for him after the pop star of the period.

Garret FitzGerald had been elected Fine Gael leader in 1977 and there was “excitement” around the party, he recalls.

“I don’t think I ever saw myself as transforming Irish society but I hoped I’d make a worthwhile contribution,” he says.

During these “chaotic” years in Irish politics, Birmingham successfully contested four of five general elections and was a junior minister in three government departments before losing his seat in 1989.

By then he was a husband and father and was “very determined” to focus full time on his legal career. He developed a successful practice, particularly in personal injuries, but crime gradually became very significant.

Even as a junior counsel, he was involved in some very serious cases, including the fatal shooting in Adare in 1996 of Det Jerry McCabe by a Provisional IRA gang.

He prosecuted many child abuse cases. For this there was “absolutely no formal training”, he says, and it was “only a matter of happenstance if someone was sensitive”.

“Things have changed a lot since, but there is more to be done to improve the experience for victims,” he says.

He considers the experience of victims is “perhaps more difficult” in some ways, with cases taking longer for reasons including a focus on disclosure and access to counselling reports that provide material to be explored. Victims, including very young children, “may now find themselves spending much longer” on a video link or in the witness box, he says.

In the years after Birmingham became a senior counsel in 1999, he prosecuted and defended many high-profile cases, including several lengthy cases arising from the 1996 murder of drug addict Josie Dwyer following an anti-drugs meeting in north inner city Dublin.

His work drifted into government-appointed assignments. He conducted two public inquiries, including a “scoping” inquiry into clerical child abuse in the Catholic diocese of Ferns.

He was the sole member of the commission that investigated how a heroin addict, Dean Lyons, came to be charged with the double murder in 1997 of two vulnerable women in Grangegorman after falsely confessing to them. He considers the Dean Lyons case unusual.

“He had a compulsion to confess to things right back to his school days; there would be more awareness of that now,” he says.

Birmingham knew his 2007 application for appointment to the High Court bench would be welcome because the Fianna Fáil-appointed attorney general Rory Brady had “a good opinion of me”, having put him into “virtually all the politically sensitive cases on behalf of the government of the day”.

Those included an embarrassing controversy in 1996, where a Circuit Court judge, Dominic Lynch, continued to sit on the Special Criminal Court after being delisted as a judge of that court.

“He had asked to be taken off but no one told him he was,” says Birmingham. “He continued to sit so virtually all the IRA prisoners at the time had to be released and were immediately rearrested.”

When the 2008 financial crash prompted emergency measures to cut public sector pay, including that of judges, the Association of Judges of Ireland was set up because there was “a feeling judges would need representation and a collective voice”, he says.

As the second president of the association, Birmingham believes he was probably regarded as “a dove” in negotiations, though he agrees there were “some hawks”.

Although a 2011 referendum endorsed a judicial pay cut, the association blocked plans for newly appointed judges to be always on a lower salary than colleagues appointed the previous year. An increment system was agreed where a new judge would, after two years, be paid the same as established colleagues.

On the High Court bench, Birmingham did “virtually every list”, including child care cases when the problem was a lack of special care places. Being a judge was “like being a hotel bed manager”, he says.

“Now there are beds but no staff so the net result is the same,” he says.

His “greatest satisfaction” as a judge was seeing children stabilise and make progress. He was “very much hands on”, he says, encouraging children to discuss their views and aspirations in court.

When he was appointed to the new Court of Appeal in 2014, it had inherited a huge backlog of cases from the Supreme Court as part of a “formidable workload”.

Its “clearly inadequate” resources made the court’s early years “very difficult” until more judges were appointed.

Birmingham managed the criminal side of the Court of Appeal’s work and continued that role on his appointment as president of the court in 2018.

Any controversy about the appointment of a former Fine Gael politician to that position “did not really reach me”, he says.

Media reports, he noted, suggested then Minister for Transport Shane Ross, an Independent TD, was effectively blocking judicial appointments unless guaranteed his legislation reforming the judicial appointments system “would go through the way he wanted it”.

The judiciary opposed Ross’s proposals on grounds including they would mean “significant executive control” over appointments.

Birmingham welcomes the legislation being “significantly modified” to ensure the new appointments commission is chaired by the Chief Justice and has an equal number of judges and lay people.

As Court of Appeal president, he worked with others to ensure the court was a “flagship” for remote court hearings after the Covid-19 pandemic hit.

He is taken aback by any perception of him as a strong “law and order” judge.

“I hope I’m fair – I’m a straight talker. I only see myself as a law and order judge in the sense every judge is,” he says.

His significant judgments include decisions in appeals by murderers Graham Dwyer and Patrick Quirke upholding the State’s entitlement to investigate and prosecute serious crime despite the impact on individual rights, he says.

“I’m not sure that makes me a law-and-order judge.”

He is “very enthusiastic” about advances in judicial education and training and says gender balance within the judiciary has been “well-tackled”, noting the Court of Appeal was the first court in the common law world to have gender equality.

Achieving greater diversity will take time, he says. He accepts that more judges come from private fee-paying schools than from the wider population as a whole but points out he was among some senior judges who did not attend fee-paying schools.

The judiciary, he maintains, “is not closed to people from modest backgrounds”.

Birmingham was a member of the Judicial Council’s Judicial Conduct Committee, whose work includes investigating complaints of alleged judicial misconduct under the first ever complaints regime here, operational since October 2022.

Birmingham is “not at all surprised” that just one complaint has been deemed admissible to date, saying many complaints predated the complaints regime or involved people “effectively trying to relitigate their case”.

He will not be drawn on specific sentencing controversies but stresses judges take their sentencing responsibilities “very seriously”.

Judges “can make mistakes” but there are “inbuilt checks and balances”, and sentences can be appealed on grounds of severity or undue leniency.

More sentencing guidelines will be “helpful” but there are “quite an amount” of existing guideline judgments concerning sentencing for specific offences, including burglary, assault causing serious harm, rape and sexual offences.

“The truth of the matter is that guidelines are only guidelines and every case really is different.”

Looking at the criminal justice system in a wider context, he is concerned about the length of trials.

Pretrial applications were introduced with a view to having more focused trials but, in trying to identify points pretrial that need resolution, “anything might appear significant”.

“The idea was undoubtedly a good one, but I’m not sure the initial experience has been entirely positive,” he says.

During tributes on Birmingham’s retirement last July, Attorney General Rossa Fanning hinted the State might call on him again.

He has since been appointed the State’s first independent examiner of security legislation.

Retirement, it seems, is just a word.