McCarthy, Niall St John (1925–92), lawyer and judge, was born in Cork on 25 May 1925, the sixth of seven children of Joseph A. McCarthy, an engineer who was later called to the bar and became a circuit court judge, and his wife, Rose A. O'Neill. The family shortly afterwards moved to Dublin where McCarthy grew up in Trafalgar Terrace, Monkstown. He was educated first at the Christian Brothers’ school at Dun Laoighaire and later at Clongowes (1937–42), where he was imperator of his graduating class. (In 1988–9 he was president of the Clongowes Union.) He studied classics at UCD, graduating BA, and was called to the bar in 1946 at the age of twenty-one. In 1951 he married Barbara Foley, a radiographer and daughter of Dr William Foley and his wife, Molly Bolger, of Tullow, Co. Carlow. In 1959 he became a senior counsel, in 1975 a bencher of King's Inns and in 1980 chairman of the Bar Council.
Niall (always pronounced ‘Neil’) St John McCarthy was a brilliant and flamboyantly successful barrister, the leader of his profession for twenty years before his elevation to the supreme court in 1982. He was eloquent, formidably intelligent and thorough, if extremely rapid, in preparation. He had to an extraordinary degree the advocate's crucial ability to isolate the essentials of any set of facts and to ignore (if indeed he had registered) the inessential. He was the best cross-examiner in living memory. Even this, however, was eclipsed by his elemental force of personality which in the view of most who knew him was unique, a sort of natural sovereignty. He practised across the entire range of the law, and for clients who ranged from troubled individuals to great corporations: since this inspired generalism is no longer possible, it is safe to say that he will never be outdone. His nickname at the bar was a short one, suggestive of omnipotence. Thus was his pre-eminence acknowledged, gracefully if ruefully, by that hypercritical body.
It was unsurprising that McCarthy should have been retained, for example, to defend Charles Haughey (1925–2006) in the arms trial (1970), and to act for Gulf Oil in the Whiddy tribunal (1979) and for the owners of the Stardust fire venue (1981): he was the country's advocate of choice for two decades. As such he earned a huge income and lived, and looked, like a grandee. Though not unusually tall, he gave the impression of massivity. This, combined with a mellow and perfectly pitched voice, helped him often to compel the result he desired as a maestro compels music. He knew the value of his services and charged accordingly: he was the person most responsible for raising the earnings of leading barristers to a level not inferior to those of any profession. Obtusity or under-performance repelled him, and he sometimes exhibited what a colleague called ‘the arrogance of total competence’.
In private life he was approachable, kind, hospitable, ironic and even whimsical, the more so in later years, after he withdrew from the vivid and vinous conviviality of which he was long a centre. He was much given to charitable work, especially for the deaf (he was chairman of the National Association for the Deaf, 1977–88), to golf at Portmarnock and tennis at Fitzwilliam Lawn Tennis Club (he was president in 1982–4), and to the study of Ireland's history and heritage. He was generous in fostering talent, and a practical and unobtrusive friend to those whom success eluded, or who drank too deeply.
On the supreme court, to which he was appointed on 1 November 1982, McCarthy was consistently liberal, intellectually rigorous and (sometimes alone of the court) a principled moderniser. His judgments are distinguished by elegance of argument and style, intellectual consistency and an insistence that principle, especially in the area of constitutional rights, should not merely be proclaimed but acted upon, even if the result were unpopular or inconvenient. Though a firm respecter of the separation of powers, he was entirely without deference to the executive and sometimes took government and legislature severely to task. He sat in 238 reported cases and a much larger number of unreported cases. Judicial writing is often dry, but the advocate's panache occasionally surfaced: in McGarry v. Sligo County Council [1991] 1 Irish Reports 99, the case which prevented the Carrowmore megalithic tombs complex from being turned into a pithead, he quoted a Yeats verse and heartily endorsed a German archaeologist's rhetorical question, ‘Do the Irish have no pride?’
In Norris v. Attorney General [1984] I. R. 36, heard only a few months after McCarthy's appointment, his dissenting judgment is a tour de force of classic liberalism. He noted that under the law as it then stood, the male homosexual suffered legal sanctions not visited upon ‘the venal, the dishonest, the corrupt and the like’. He expounded a notably broad theory of the legal standing necessary to raise particular constitutional issues and firmly rejected the view, analogous to American ‘originalism’, that the mores prevailing when the constitution was adopted in 1937 are determinative of a contemporary constitutional challenge. He plangently asserted the right to privacy, at the end of perhaps the most important and influential dissenting judgment for fifty years.
In Trimbole v. Governor of Mountjoy Prison [1985] I. R. 550, McCarthy firmly rejected the view that a state (in that case, a garda) illegality might lead to judicial rebuke but should not interfere with the result of the case. The authorities, he said, ‘must not be permitted to think’ along those lines. On the contrary, such conduct:
will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the court's creation; they spring from the police illegality.
In AGv. X [1992] I. R. 1, the notorious abortion injunction case, he eschewed the narrow ground that found favour with some others and baldly declared ‘to go to another State to do something lawfully done there cannot . . . admit of a restraining order’. He pointed to the obvious need for legislation to reconcile the separate rights acknowledged in the eighth (abortion) amendment to the constitution: ‘The failure of the Legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.’ The amendment itself was, McCarthy said, ‘historically divisive of our people’.
On 21 August 1992, just weeks before his sudden death, McCarthy delivered a coruscating dissent in AGv. Hamilton [1993] 2 I. R. 250, the case that upheld the Reynolds government's claim to absolute confidentiality for cabinet discussions. This was in the context of the Hamilton tribunal enquiries into the issue of export credit insurance: McCarthy appended to his judgment the civil service note of what Mr Reynolds had said the government had decided on that topic. Though McCarthy was in the minority (with Mr Justice Séamus Egan (1923–2004)), the absolute confidentiality found to attach was removed by the twelfth amendment to the constitution of 1997.
In January 1987 McCarthy was appointed chairman of the National Archives advisory council. The appointment was inspired. In his first report he noted that the National Archives was ‘not a new label for an existing structure; it is a new instrument of national importance’. He is credited with the preservation of the Irish Manuscripts Commission as a separate entity. When officialdom dragged its feet on providing a suitable building for the archives, he exerted himself energetically and peremptorily, at the very highest level, to secure the archives’ Bishop Street premises.
Niall McCarthy and his wife, Barbara, died in a traffic accident near Seville on 1 October 1992, leaving two sons and two daughters. The government arranged for the public reading room of the National Archives to be named in his memory. His bust by Marjorie Fitzgibbon is placed there, and another on the landing of the main staircase in King's Inns. Nearby, appropriately, are busts or paintings of Chief Justice Ó Dálaigh (qv), Mr Justice Walsh (qv) and Chief Baron Palles (qv). He rivalled each of them as a judge, though his judicial career was much the shortest; as an advocate he excelled them all.