It emerged at the High Court yesterday that Co Donegal publican Mr Frank McBrearty has told the Morris tribunal it was he who had faxed certain information to Fine Gael's Senator Jim Higgins.
This contained allegations, said to be based on information from gardaí, about the conduct of the Garda investigation into alleged corruption by certain gardaí in Co Donegal.
Mr Michael Collins SC, for the tribunal, made the disclosure at the opening of a legal challenge by Senator Higgins and Labour Party TD Mr Brendan Howlin to orders of the Morris tribunal requiring them to disclose their sources of information. The information included a suggestion that the investigation, headed by Asst Commissioner Kevin Carty, was not being conducted in accordance with the instructions of the Garda Commissioner and had been compromised.
Both politicians argue that, if the tribunal's order stands, it will discourage members of the public from disclosing information of important public interest to parliamentarians because such "whistle blowers" could not be guaranteed confidentiality.
The Morris tribunal was set up in April last year to inquire into complaints concerning some gardaí in the Donegal division. It is chaired by Mr Justice Morris.
The background to the politicians' action dates back to June 25th, 2000, when both received certain information. Mr Higgins, then a TD, received a phone call to his home from a person, whom the deputy knew, telling him he would be receiving a fax, drawn up by a former garda, which contained very serious allegations. He duly received a fax.
On the same day, Mr Howlin received a phone call from a parliamentary colleague who gave him the phone number of another person who had been a source of information to Mr Howlin concerning issues relating to the McBrearty family in Co Donegal. Mr Frank McBrearty senior has alleged he and members of his family were severely harassed by certain gardaí following the death of cattle dealer Mr Richie Barron in Co Donegal.
Mr Howlin phoned the number, spoke to a person who gave him certain information and made notes of the conversation. Those notes raised similar allegations to those contained in the fax received by Mr Higgins.
Both politicians met with the then minister for justice, Mr O'Donoghue, on June 27th, 2000. Mr Higgins gave the minister a copy of the fax while Mr Howlin outlined the information he had received.
Asst Garda Commissioner Fachtna Murphy was later asked to investigate the matters raised.
On February 28th last, Mr Justice Morris made orders directing both men to discover phone records and other information so the tribunal could establish the identity of their sources. Eircom was also ordered to produce the politicians' phone records.
Both men secured leave to challenge the tribunal's order and the challenge opened yesterday before Mr Justice Kearns. Eircom is a notice party to the action and has stated it will abide by any order the court makes. The Houses of the Oireachtas are also a notice party.
During the hearing, Mr Collins, for the tribunal, said Mr Frank McBrearty had claimed to the tribunal in the past few days that he was the source of the fax received by Mr Higgins. The tribunal did not know if that was true or not. There were clear inconsistencies between what Mr McBrearty said about the purported sending of the fax and what the applicants said about the circumstances in which they received it.
Mr Brian O'Moore SC, for Mr Howlin, said his client had received no fax and Mr McBrearty's statement made no reference to him making any contact with Mr Howlin. Mr Howlin was asked to ring a certain person and Mr McBrearty's statement shed no light on that except there was a tribunal statement that it had identified people, Mr McBrearty's lawyers, who might be the source. Mr Howlin could not be expected to disclose that and the person who gave Mr Howlin his information had said all along they did not wish their identity disclosed.
