Court challenge unlikely to overturn tribunal findings
Opinion: There is limited scope to question on the basis an alleged error of fact
The challenge made to the central findings of the Smithwick Tribunal by former gardaí John O’Brien, Michael Finnegan and Michael Staunton in this newspaper earlier this week highlights the nature of a tribunal of inquiry and the factors that may influence its ability to perform what is normally its central task – that of allaying public concern about a matter of urgent public importance.
The three former officers make trenchant criticisms of the reasoning and the evidence that the tribunal used in finding that, on the balance of probabilities, some person within Dundalk Garda station colluded with the Provisional IRA by providing information that assisted them in murdering RUC Chief Supt Harry Breen and Supt Robert Buchanan.
In assessing what options there are for an official response to these criticisms, or, indeed, what the public should make of them when assessing this issue, several points should be borne in mind.
Firstly, there is very limited scope for challenging the report of a tribunal by way of judicial review in the High Court, on the basis that it has committed an error of fact of the kind that the three officers claim. Generally speaking, the High Court can grant an order quashing a tribunal’s finding of fact only if it is the result of a breach of fair procedures or “it plainly and unambiguously flies in the face of fundamental reason and common sense”.
This is a principle that was reiterated as recently as last march by Ms Justice Dunne in a case brought against the Mahon tribunal.
Secondly, in order to bring such a challenge to the basic finding of collusion, some party with standing to do so would have to come forward. The three former gardaí – Finbarr Hickey, Leo Colton and Owen Corrigan – whose conduct in 1989 came under special scrutiny, were all held by the tribunal not to have been shown to have been guilty of the collusion that the tribunal found to have occurred, and the tribunal also refers to material that points to some other, unspecified person as having been responsible.
In the circumstances, it seems unlikely that an application for judicial review, on this ground, would be brought by any of the three named former gardaí, or by any of their former colleagues who could be in a position to claim that suspicion was cast on them by the report.
It seems equally unlikely that two other possible applicants, the Garda Commissioner or the Attorney General, would seek judicial review of the report, especially given the very heavy burden that any applicant would have in persuading the High Court to quash a finding on the basis that it was factually incorrect.
For these reasons, it seems unlikely that the central finding of the tribunal could be set aside through resort to the courts. Where does that leave the Government and, indeed, the public, in relation to the detailed criticism that has now been made of the tribunal’s central finding?