Lawyers for the Oireachtas subcommittee inquiring into the fatal shooting by gardai of John Carthy at Abbeylara, Co Longford, have conceded that part of an e-mail relating to the issuing of statutory consents required for compelling gardai and other witnesses to appear before the subcommittee was omitted when the e-mail was sent to lawyers for the gardai.
Mr John Rogers SC, representing 36 gardai, told the High Court that the omission of the "crucial" part of the e-mail deprived his side of knowing there was "no actual consent" for the directions issued by the subcommittee on April 12th to persons to appear before it at public hearings beginning on April 24th.
The directions required the consent of the Oireachtas subcommittee on compellability. That consent was not in being on April 12th, and his side only became aware of the omission when the compellability subcommittee sent his side documents.
Mr Rogers is claiming the emails show that, when the subcommittee issued its directions on April 12th, it was not entitled to do so, and therefore the directions are invalid.
The subcommittee rebuts this and claims it had the requisite consent for issuing directions on April 24th. Its chairman, Mr Sean Ardagh TD, said in an affidavit that this was among a number of "technical" objections by gardai to the work of the subcommittee.
Mr Sean Ryan SC, for the subcommittee, said they accepted that the copy of the email sent to Mr Rogers's side was not the actual e-mail which was sent. However, the chairman, Mr Ardagh, had understood that the copy of the e-mail discovered to Mr Rogers was the e-mail which was sent.
Mr Ryan said there was an explanation for the error and he asked to be allowed to set that out on affidavit. Mr Rogers objected, saying there had been ample opportunity to set out an explanation before the High Court case began.
The court agreed to defer its decision on whether the affidavit might be filed until after certain documents were read.
Yesterday was the third day of the challenge by the 36 gardai to the inquiry by the subcommittee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights into the fatal shooting of Mr Carthy at Abbeylara on April 20th, 2000.
The subcommittee was established last March, but is on hold pending the outcome of the legal proceedings and a decision on an application by nine members of the Emergency Response Unit for immunity from appearing before the body.
Mr Rogers yesterday read statements of opposition in the proceedings from the subcommittee, from one of its members, Mr Alan Shatter TD, and from the State. All denied that the subcommittee was acting in excess of its jurisdiction or powers or in the absence of the required statutory and other consents.
It was also pleaded, having regard to the separation of powers, that decisions by the Oireachtas to establish committees with powers to make findings of fact and recommendations were not, outside considerations of fair procedures and natural justice, amenable to review by the courts.
In an affidavit, Mr Shatter said that the work of the subcommittee was directly related to the legislative functions of the Oireachtas, whose members had a legislative obligation to consider the effectiveness, appropriateness and reasonableness of the Garda operation in Abbeylara and the later Garda investigation.
Mr Ardagh has rejected claims by the gardai that the subcommitttee cannot be independent because its members are elected representatives.
The hearing continues.
