John O’Byrne, Irish judge and barrister who serves as a Judge of the Supreme Court of Ireland, Judge of the High Court (1926-40) and Attorney General of Ireland (1924-26), dies in Killiney, Dublin, on January 14, 1954.
O’Byrne is born in Carlow on April 24, 1884, the fourth son of Patrick O’Byrne and Mary O’Byrne (née Tallon), of Seskin, County Wicklow. He is educated at the Patrician Monastery, Tullow, County Carlow, and studies Moral and Mental Science at the Royal University of Ireland, where he graduates in 1907 in First Place with First Class Honours. He is awarded a Master of Arts degree in 1908.
O’Byrne joins the Irish Land Commission, where he acquires an intimate knowledge of the system of real property and land tenure in Ireland. Subsequently, he studies at King’s Inns, Dublin, and is called to the Irish Bar in 1911, where he practises mainly in real property.
O’Byrne stands as a pro-Treaty Sinn Féin candidate at the 1922 Irish general election for the Wexford constituency but is not elected. In 1922, he is appointed by the Provisional Government of Ireland to the Irish Free State Constitution Commission to draft the Constitution of the Irish Free State. It prepares a draft Constitution. He is thus one of the constitutional architects of the Irish Free State.
In 1923, O’Byrne is appointed to the Judiciary Commission by the Government of the Irish Free State, on a reference from the Government to establish a new system for the administration of justice in accordance with the Constitution of the Irish Free State. The Judiciary Commission is chaired by the last Lord Chief Justice of Ireland (who had also been the last Lord Chancellor of Ireland). It drafts legislation for a new system of courts, including a High Court and a Supreme Court, and provides for the abolition of the Irish Court of Appeal.
O’Byrne is appointed King’s Counsel in 1924, becoming the last member of counsel in the Irish Free State to be appointed, thereafter counsel are appointed as Senior Counsel. He is also a delegate of the Irish Free State to the League of Nations in the same year.
On June 7, 1924, O’Byrne is appointed the second Attorney General of Ireland when Hugh Kennedy is appointed Chief Justice of Ireland. On January 9, 1926, he is appointed a Judge of the High Court, upon which he serves until he is appointed to the Supreme Court of Ireland in 1940. He is also Chairman of the Irish Legal Terms Advisory Committee from May 14, 1948 to May 13, 1953.
Another High Court judge, Kenneth Deale, writing extra judicially in “Beyond Any Reasonable Doubt?,” a collection of essays on celebrated Irish murder trials, offers some interesting insights into O’Byrne’s strengths and weaknesses as a judge. Deale praises him as a sound and experienced lawyer, conscientious, principled and level-headed. However he believes that O’Byrne has one serious flaw – he is excessively strong minded and, having made up his mind, is most reluctant to change it. This in Deale’s view is a serious fault in a judge especially in criminal trials, where Deale finds it hard to believe that a jury would not be greatly influenced by the summing up of so formidable and strong minded a judge. In particular Deale strongly criticises his conduct of the trial of Thomas Kelly, tried in 1936 for the murder of Patrick Henry. In Deale’s view, O’Byrne’s summing-up is designed to convince the jury that the accused is guilty. Kelly, after an unprecedented three trials, is found guilty, but the Government, which seems to have some doubts about his guilt, reprieves him from the death penalty.
O’Byrne marries Marjorie McGuire in 1924. He lives at Stonehurst, Killiney, County Dublin. He dies in office on January 14, 1954. His widow brings a celebrated test case arguing that judges could not be required to pay income tax as this breaches the Constitutional guarantee that their incomes cannot be reduced. The Supreme Court decides by a 3-2 majority that notwithstanding the guarantee, judges are liable to pay income tax.