Thirty-six gardai have been given leave by the High Court to challenge the continuing inquiry by an Oireachtas sub-committee into the shooting dead of Mr John Carthy in Abbeylara, Co Longford.
The gardai are disputing almost all aspects of the work of the sub-committee, including its powers to compel the attendance of witnesses and to direct the production of documents. Their action will further delay the inquiry which, legal sources believe, will not now resume until the judicial review action is determined.
Mr Justice Butler also gave permission to Mr John Rogers SC, for the gardai, to apply on notice to the State for a stay on the work of the sub-committee pending the outcome of the judicial review challenge.
The judge said he would not grant a stay on an ex parte basis. He returned the matter to May 29th.
The sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights was set up on March 8th following the death of Mr Carthy (27), at Abbeylara, on April 24th, 2000. He was shot four times by members of the Emergency Response Unit after a 25-hour siege at his home.
The sub-committee's terms of reference include consideration ,of the Garda Commissioner's report on the shooting dead of Mr Carthy.
Public hearings of the subcommittee began on April 24th and were adjourned on April 30th for a month pending a ruling of the Secretary-General to the Government on whether certain gardai were exempted from giving evidence. It is due to resume on June 1st.
Yesterday Mr Rogers, whose clients include the nine members of the ERU in the Abbeylara incident, told the judge that the sub-committee was actually undertaking an inquiry into the shooting incident at Abbeylara when its terms of reference precluded such an inquiry. The sub-committee was entitled only to inquire into the Garda Commissioner's report of the incident, he said.
He argued that the sub-committee, being made up of elected politicians who depended on public support to stay in office, was not capable of conducting an unbiased inquiry.
It was a "frightening experience" to appear before a body which was not prepared to give counsel the instruments on which its jurisdiction was founded, Mr Rogers said. When he had looked for these, they were not available and appeared not yet to have been found. There had been a singular failure to establish any jurisdiction for this body.
He said the sub-committee was not entitled to proceed without a formal order of the Compellability Committee. Such an order was made only on April 30th by the Government Chief Whip, Mr Seamus Brennan, although the sub-committee had on April 12th served notice on his clients to attend and give evidence at the inquiry, and its public hearings had opened on April 24th.
Stressing that he was not making any determination, Mr Justice Butler said he was satisfied Mr Rogers had made out a statable case for judicial review and he would grant leave to seek the declarations and orders sought.
The gardai, among other things, want a declaration that the conduct by members of the Oireachtas, under the aegis of the Houses of the Oireachtas and with their authority, of a public inquiry with the aid of the power of the State (including the power to compel the attendance of witnesses and the production of documents), which is liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons who are not members of the Oireachtas, is in excess of the powers of the Houses of the Oireachtas.
Mr Rogers argued that there was no inherent power in the Oireachtas to carry out inquiries which were liable to result in findings of fact or expressions of opinion adverse to the reputations of persons who are not members of the Oireachtas. If the Oireachtas did have such powers, these must be in furtherance of its legislative functions, and the Abbeylara inquiry was not, he said.
