The High Court has overturned a report of the Judge Advocate General (JAG) which concluded a decision to forcibly retire a young Irish Army lieutenant in 1969 was "reasonable" at that time.
Mr Justice John Quirke yesterday held that Dónal de Róiste, who has for 36 years challenged the basis for the decision to force him to retire, was denied fair procedures in relation to the conduct of the inquiry by the JAG and that no explanation or justification had been offered by the State.
He granted Mr de Róiste a declaration that the JAG report was void and had no effect.
In a reserved judgment, he said the decision to recommend Mr de Róiste's retirement in 1969 had been deemed by the courts to have been made lawfully. However, there had been no determination by the courts or by any tribunal as to whether or not the decision to recommend his involuntary retirement was "reasonable". The inquiry by the JAG, Oonagh McCrann SC, was a process which was "apparently undertaken to make such a determination".
The judge said he was satisfied, since the process undertaken by the JAG directly concerned matters relating to Mr de Róiste's reputation and good name, its finding and outcome affected his constitutional rights. He had a legitimate, fundamental and significant interest in the process and was entitled to fair procedures in how it was carried out, he said.
However, the judge held, Mr de Róiste had not been granted fair procedures. Mr de Róiste claimed the JAG had failed to acquaint him with details of the case which he had to meet and he had been refused access to Army and Department documents until after the JAG inquiry concluded.
It was "patently unfair" to Mr de Róiste that the Minister and Defence Forces had access to the documents he sought. This was a failure to provide him with fair procedures and a failure to observe principles of natural and constitutional justice in the conduct of the process. No explanation had been offered for justification or mitigation by the State.
Mr de Róiste, of Cabhsa Inismhór, Ballincollig, Co Cork, now aged 60, was forced to retire from the Defence Forces, "in the interests of the service" on grounds that he was suspected of associating with persons engaged in subversive activities.
Mr Justice Quirke said the High Court (in June 1999) and the Supreme Court (on appeal in January 2001) refused to allow Mr de Róiste proceed with his challenge to the decision to retire him on the ground of inexcusable delay in bringing his claim.
On July 1st, 2002, Maj Gen Seán Brennan decided he was prepared to give Mr de Róiste access to documents surrounding his retirement, but the documents were not handed over that day.
The following day, the then minister for defence, Michael Smith, established the JAG inquiry to focus on matters directly concerned with Mr de Róiste's reputation. The minister directed that Mr de Róiste should not get the documents until after the JAG report. Without the documents, Mr de Róiste's solicitors made what they described as a "blind" submission on behalf of their client to the JAG.
Mr Justice Quirke said the process undertaken by the JAG was significantly more than for the purpose of submitting to the minister a "mere fact-finding report". It also required the JAG to reach conclusions and make findings of fact and recommendations to the minister.
The JAG interpreted the inquiry's terms of reference as requiring conclusions to be reached and findings of fact made on whether or not the 1969 Government made a "reasonable" decision to advise the president that Mr de Róiste should be retired; and whether or not Mr de Róiste had been afforded fair procedures at the time that decision was made.
The judge rejected the State's claim that the JAG findings and recommendations were "legally sterile" because no legal right vested in Mr de Róiste had been or could be affected by them.
The so-called "legally sterile" nature of those conclusions, findings and recommendations was not, by itself, a sufficient ground to deprive Mr de Róiste of the right to seek to quash the JAG report, he said.