Burden of proof
However, given the civil burden of proof as to whether there was misconduct, and that nature of the review, her findings are an expression of an opinion, not an adjudication on fact.
The report finds:
1) Mr Justice Woulfe was a newly-appointed judge,
2) He had not yet sat on the Bench as a member of the Supreme Court,
3) He had not had the benefit of any introductory programme as a judge,
4) There were no judicial guidelines or judicial code of conduct that could have assisted him to deal with the situation.
Cogent evidence
“The reviewer is of the opinion that there was cogent evidence that, apart from considering whether the dinner was in compliance with the COVID-19 regulations and guidelines, and the separation of powers issue, Mr Justice Woulfe did not seek advice on, or consider whether it was appropriate for, a member of the Supreme Court to attend the dinner,” the report says.
No breach of the law
However, since her report is drawn up in the absence of any potential action by the newly-formed Judicial Conduct Committee, Mrs Justice Denham writes that it would not be fair to take any further action, since no breach of the law occurred.
The report says Mr Justice Woulfe placed bona fide reliance on assurances of the organisers of the golf dinner.
The Denham Report goes into some detail about the movements of Mr Justice Woulfe in the lead-up to the controversial golf outing and dinner in Connemara.
Mr Justice Woulfe gave a written statement prior to a meeting on 8 September with Mrs Justice Denham.
The review includes an engineer’s report on the layout of the Clifden Station House Hotel, as well as the submission of a book of images from the premises, and the public-health guidelines for hotel re-openings.
Questions considered
The questions to be considered by the review were:
1) Should Mr Justice Woulfe have attended the golf event without attending the dinner?
2) Should Mr Justice Woulfe have accepted the invitation to dinner?
3) Should Mr Justice Woulfe, in all the circumstances, have left the hotel in light of the situation prevailing?
4) Were there any relevant codes of practice or guidelines; and to make any recommendations considered appropriate.
Mr Justice Woulfe was represented at the review by his counsel, Michael Collins SC.
Relevant legislation examined
Mrs Justice Denham examined all the relevant legislation and guidelines in relation to COVID-19 public-health restrictions, as well as judicial conduct guides.
The draft report was sent to Mr Justice Woulfe on 22 September, and a further meeting was held on 25 September.
In his statement to the reviewer, Mr Justice Woulfe describes his invite to the Oireachtas Golf Society outing by former Leas Cathaoirleach Paul Coghlan, whom he had met while still practising as a barrister and with whom he was friendly.
In the context of COVID-19, outdoor sports, such as golf, had recommenced at the time
Unfamiliar with the protocols
Since he was a newly-appointed judge, and unfamiliar with the protocols, Mr Justice Woulfe decided to raise the matter of his attendance with the Chief Justice, in the context of the separation of political and judicial powers.
On Wednesday 29 July, Mr Justice Woulfe was crossing the yard at the Four Courts and met the Chief Justice.
He said that he had been invited to the Oireachtas Golf Society outing, and emphasised that it was a non-political event.
Mr Justice Woulfe recollects the Chief Justice said something like, “I don’t see any problem with that.”
Mr Justice Woulfe pointed out that, in fairness to the Chief Justice, he did not raise the issue as to whether there would be a dinner or not.
No written invite
The Supreme Court judge never received a written invite, which happened to contain a reference to dinner.
On Tuesday 18 August, Mr Justice Woulfe was with his family on holidays in Donegal. He left at around midday and arrived at the Station House Hotel in Clifden at approximately 6pm.
He said that he was not aware of any public pronouncement that night, by the Government, of new rules in relation to public dining. He was on holidays, and had switched off from news coverage.
At the time, 50 people were allowed to gather socially, and he had just a hazy awareness that matters were on the cusp of change, but Government policy had been for people to go and support hotels and events.
Cautious
Mr Justice Woulfe said he was cautious about the dinner, but was told that the organisers had consulted authorities, and everything would be in compliance with the rules, and he had no reason to doubt this.
He stated that he had no reason to believe that the Oireachtas Golf Society dinner was anything different, or larger, than the event occurring in the room in which he was dining, which held about 45 people.
At no time was he aware that there was a second group of diners from the Oireachtas Golf Society in an adjoining room, concealed by a wall immediately behind him.
‘Absolutely dumbfounded’
On Thursday morning, 20 August, Mr Justice Woulfe said he was absolutely dumbfounded to hear that Minister Calleary had resigned on account of attending the dinner.
He told the reviewer that there was wholesale public confusion about the regulations that applied on 19 August, but he made a public apology for any unintended breach.
The Supreme Court judge said that he was given no documents relating to judicial conduct and ethics by the Supreme Court on his appointment in July, or by the Association of Judges of Ireland, or anyone.
He stated that he had never read any publication on a judicial code of conduct or judicial ethics. Nor was he informed of any introductory programme for new judges.
However, he did realise, in a broad sense, that there were restrictions on judges. That was the reason why he had requested the view of the Chief Justice as to his attending the Oireachtas Golf Society event.
‘Not unreasonable’
In her report, Mrs Justice Denham says that she considered it not unreasonable for Mr Justice Woulfe to believe that the dinner was COVID-19-compliant.
She continues: “Now that a Judicial Council has been established in Ireland, and a Judicial Conduct Committee commenced its work in July 2020, standards for ethical conduct of judges may be drawn,” and then cited a range of useful and relevant materials.
The fact that Ireland was experiencing a pandemic at the time of the dinner is part of the context requiring consideration, Mrs Justice Denham writes.
“Consideration was required of the COVID-19 regulations, the separation-of-powers issue, and whether it was appropriate for a judge of the Supreme Court to attend the dinner.
“Media reports that ‘80 people’ or ‘over 80 people’ had attended a convivial event, a golf dinner in a hotel, came as a shock to many who had suffered, and were still saddened by the pandemic.
‘Maelstrom’
“It generated intense public controversy in mainstream media and on social media. Mr Justice Woulfe described it as a ‘maelstrom’ which had exploded around all of those who had attended the dinner,” she writes.
A judge has special status in Irish society, she continues.
However, as a newly-appointed judge of the Supreme Court, “Mr Justice Woulfe’s vigilance was not yet fully honed into the judicial sphere”.
He had not had an introductory programme, or read comparative guidelines, she writes.
‘Heavy mantle’
However, a judge has to take care that his or her conduct, on or off the Bench, does not undermine the independence of the judiciary, “either by an inappropriate action or by the appearance of an inappropriate action”.
Mrs Justice Denham continues that the media coverage also reflected negatively on the Supreme Court, as a collegiate court.
“Judicial independence should be considered very seriously.
"Independence should be from the Executive and the Legislature.
“Independence is a heavy mantle for a judge to carry. It is required to be worn on and off the bench, in public life and in private life.
“It is important that judges retain the respect of the people. Thus, a judge should not take part in any conduct that is inappropriate, but also should not take part in an activity which may appear to be inappropriate to a reasonable and informed observer,” the report says.