Henchy, Séamus Anthony (1917–2008), barrister and judge, was born 6 December 1917 in Corofin, Co. Clare, the second of three sons (there were also four daughters) of Patrick Henchy, a merchant, and his wife Margaret (née O'Grady). Together with his equally gifted brother Patrick (qv) (later director of the NLI), Séamus was educated at boarding school in Galway, before moving across town to UCG, where he took an arts degree specialising in Celtic studies. Henchy's period in the Irish faculty overlapped with the return from the University of Bonn of Kathleen Mulchrone (qv), who, as Henchy's lecturer, introduced him to the subject which would be his research topic for the next five years: the medieval Irish law of children. Highly productive and versatile, Henchy moved to Dublin where he began studies at the King's Inns while simultaneously working on a research MA in Celtic studies at Galway and taking an LLB degree at UCD (1939) (in which he graduated with a first). Having graduated MA (1939) (while still pursuing two law degrees), he completed a Ph.D. – in the form of commentaries on texts dealing with the law of fosterage in medieval Celtic society – under Professor Daniel Binchy (qv). Henchy's study was the only Ph.D. awarded in the faculty of arts at UCD in 1943.
Outside his academic work, Henchy (who often used the Irish form of his name, Ó hInnse) was active in student Gaelic societies, joining in the early 1940s Craobh na hAiséirghe, a radical, Irish-language entryist group within Conradh na Gaeilge. Craobh na hAiséirghe was the creation of the explicitly fascist, pro-Axis Ailtirí na hAiséirghe. The leading historian of Ailtirí na hAiséirghe concedes that not all members of Craobh na hAiséirghe adopted the politics of its parent movement, and there is no evidence that Henchy was ever a fellow traveller.
Called to the bar in 1942, Henchy postponed professional practice in order to take up a position as part-time research assistant in the Dublin Institute for Advanced Studies, working on an edition of unpublished Irish historical annals covering the period 1114 to 1437, and travelling in wartime to London and Oxford to consult manuscripts in the British Museum and the Bodleian. He continued to work as an external researcher at the DIAS after entering practice in 1943, and this part-time work was published in 1947 as Miscellaneous Irish annals; generally well received in the specialist academic press, it has continued to be a principal secondary source for the study of late medieval Irish history.
Now practising at the bar both in Dublin and on the western circuit, Henchy succeeded in 1949 in being appointed to the chair of Roman law, jurisprudence and legal history at UCD, following the departure of Daniel Binchy to Oxford. Henchy's principal rival for the post was Thomas Donnelly. While Donnelly did not hold a Ph.D. and was unpublished, he did enjoy the support of the new president of UCD, Michael Tierney (qv), and both the academic council and the governing body recommended Donnelly. It was only the senate of the NUI which overturned the governing body and forced the appointment of the obviously better-qualified Henchy. This was the start of a running battle with the authoritarian president of UCD. In 1957 Henchy instituted a judicial visitation in order to challenge the legality of the addition of members of academic staff from disciplines outside law to the membership of the law faculty; in 1961, as a member of the academic council, he opposed Tierney's move to suspend the Literary and Historical Society. While Henchy produced three articles over a fourteen-year career (pieces on legal theory in Stalin's Russia, the institution of the university visitor, and the doctrine of precedent), publishing was not expected of part-time law professors in 1950s Irish universities, and Henchy was the first academic based in an Irish university to have an article carried in the prestigious Modern Law Review. Henchy's lectures were well organised but formal (he wore a gown, kept the class roll, and read from a set of notes). While he did not enjoy quite the same level of popularity as the lecturer in property law, the spirited John Kenny (qv) (later a colleague on the supreme court), he was charming and generous to those students who approached him.
Henchy, who was considered to possess 'mildly Fianna Fáil' connections, became a senior counsel in 1959 and was appointed by the government to the high court in 1962. His Fianna Fáil appointment was seen by some as having been helped by his campaign against the UCD Fine Gael establishment associated with Tierney. He left, at the age of 41, a practice which had not yet reached the highest level of the Dublin senior bar. Much of his time as a high court judge was spent dealing with personal injuries cases, an area which did not provide him with the opportunity to exercise his natural talent for difficult doctrinal law. His high court judgments have been assessed as 'unexceptional, steady and solid'. While often concise, they were tightly argued and rigorous, and his judgment in State (Nicolaou) v An Bord Uchtála (1966) (on the rights of the natural father of an illegitimate child) is of very high quality. He was considered especially sensitive to having his judgments overturned by the supreme court. In October 1970 he was drafted in to hear the retrial of two cabinet ministers, Charles Haughey (qv) and Neil Blaney (qv), for conspiracy to import arms (after Aindrias Ó Caoimh (qv) took offence at comments made about him by Ernest Wood (qv), SC, discharged himself, and aborted the trial). A couple of sentences in his direction to the jury – that the irreconcilable conflict in testimony between two government ministers (Haughey and Jim Gibbons (qv)) meant that one of the two must have been lying – were thought to be damaging to Haughey. Though Haughey was acquitted, Henchy's direction continued to be rehearsed by political opponents of Haughey throughout the 1970s and 1980s.
In 1972 he was promoted by another Fianna Fáil administration to the supreme court (in place of Richard McLoughlin). By the mid 1970s Henchy had fully developed the writing style which would make his reputation: complex sentences – with individual phrases linked together by classical rhetorical devices – to achieve powerful argumentative impact. Examples include judgments in de Burca v Attorney General (1976), State (Gleeson) v Minster for Defence (1976), Cahill v Sutton (1980), King v Attorney General (1981), The People v O'Shea (1982), McMahon v Leahy (1984), and Norris v Ireland (1983). His judgment on the admissibility of hearsay in administrative proceedings has been judged by the English courts as a 'classic statement of the law' (Bonhoeffer v General Medical Council (2012)) and has influenced a change of law in England. His sophisticated judgment in Murphy v Attorney General (1982), on the retrospective effects of illegality in public law, is perhaps the best illustration of his analytical and interpretative talents. He took the liberal side on the two great sexual liberty litigation set-pieces of the period: McGee v Attorney General (1974) and Norris v Ireland (1983); in the latter, he anticipated the sweep of history which would result, just ten years later and without any fuss, in the repeal of the laws criminalising homosexual conduct. Mr Justice Gerard Hogan has argued that Henchy's judgment in Norris is 'probably the finest judgment ever delivered in an Irish court' (Hogan, 9).
He was, however, no reflex liberal: many of his judgments in administrative law matters favoured a measured rather than an expanded scope of judicial review of administrative action. Relations with one of his colleagues, Brian Walsh (qv), were said to be particularly poor. He did not share Walsh's view that the offences committed by paramilitaries were immune from extradition, and in 1974 annoyed some representatives of the Irish delegation on the law enforcement commission (of which Walsh was the lead member) by disagreeing with its view that the extradition of paramilitaries from Ireland to the UK would be unconstitutional and infringe principles of public international law. Walsh, in turn, regarded Henchy as having abandoned his republican roots. A journalist was told that Henchy had become so detached from his political origins that he now read the Daily Telegraph. It was reported that the chief justice had to intervene in 1982 to cool a conflict between the two in The People v O'Shea over whether the prosecution could appeal an acquittal to the supreme court. Henchy vigorously argued that to allow an appeal would infringe the common law principle that an acquitted person should not be subjected to retrial and rejected Walsh's highly literalist approach to constitutional interpretation.
Alongside his judicial career, Henchy had developed a reputation as an effective chairman of administrative and investigative bodies. He spent the summer of 1965 in Georgetown, Guyana, writing a report for the International Commission of Jurists on the question of alleged discrimination against Guyanese of Indian, as opposed to African, origin. He was chairman of the censorship of publications board, and of the interdepartmental committee on mentally ill and maladjusted persons. In 1976 he attended, on behalf of the International Commission of Jurists, the trial of Archbishop Donal Lamont (qv) in Rhodesia for failing to report guerrilla activities.
It was this administrative experience which, in 1988, qualified Henchy to accept an approach to resign from the supreme court and to take a position as chairman of the Independent Radio and Television Commission. The IRTC, a licensing and regulatory body, was a response to the wave of illegal pirate radio stations which had sprung up in the late 1970s. The problem was, as Henchy said, that some of these pirate radio stations 'were good, some were bad, some were very bad, and even the best of them brought with them a raft of problems – interference with legalised broadcasters, the air-traffic control and emergency services; non-payment of taxes to the state and royalties to performers; plagiarism of news' (Anglo-Celt, 31 May 1990).
Henchy's role as chairman of the IRTC was to oversee the licensing and regulation of private radio and television undertakings. There was some amusement at the administration of the market for popular music being entrusted to a 71-year-old former judge who still called the radio the wireless; (radio, he told one interviewer, was more than mere 'divertissement'). During Henchy's period, the IRTC licensed over twenty-four local radio stations, one national station (Century Radio, which due to under-capitalisation, quickly failed, closing in 1991), and began the licensing process which led eventually to the establishment of the television station TV3. Before taking the job Henchy compared his taking the position to Lord Devlin who, after retirement from the house of lords, served as chairman of the UK's Press Council. In fact, the IRTC post turned out to be an extremely demanding one – he confessed that, due to pressure of work, he had not had the time to attend meetings of the European broadcasting group to which he had been appointed. Henchy was a highly active chairman: the establishment of a stable network of local radio stations was the significant administrative achievement of his chairmanship. Inevitably, there was some unpleasantness. There was pressure from promoters impatiently pressing for the grant of licences (relations with the consortium backing TV3 became particularly strained); there were demands by the minister for communications, Ray Burke, to relax licensing conditions; and there were court challenges taken by disappointed licence applicants. Later it would emerge that the IRTC had been used as an innocent agent to trigger a request on behalf of Century Radio to the minister for communications for which the minister, in turn, received a corrupt payment.
Henchy was considered somewhat reclusive by some of his colleagues: he was a private person, never particularly comfortable with the gregarious culture of the Irish bar. He preferred gardening at his home in Foxrock, and played snooker in the Royal Irish Yacht Club. He retired from public life in 1993 to the domestic life that he had begun when he married Averil Graney in 1954. By the time of his death, aged 91, on 5 April 2009, his reputation as the finest stylist in the history of the Irish supreme court was well established.