O'Donoghue recommends inquiry into Abbeylara
Minister for Justice, Mr John O'Donoghue, this evening said he would recommend to the Dáil the establishment of a tribunal of inquiry into the Abbeylara incident.
The Court ruled politicians were not entitled to inquire into the nature of the Garda operation at Abbeylara, Co Longford, which resulted in the shooting dead of Mr John Carthy two years ago.
Five of seven Supreme Court judges dismissed the State's appeal against a three-judge High Court decision upholding a challenge by 36 gardaí to the Oireachtas subcommittee inquiry into the Abbeylara incident in April 2000, while two upheld the appeal.
The two judges who upheld the appeal were Mr Chief Justice Ronan Keane and Mr Justice Francis Murphy.
In the rulings against the appeal, all five judges who quashed the appeal found that the Constitution does not give the Oireachtas the power to conduct such an inquiry, but that this would only apply to the inquiry into the Abbeylara case.
" The Constitution gives no explicit power to the members of the Houses of the Oireachtas to hold an inquiry such as is in issue in this case, " Mrs Justice Susan Denham said in her ruling.
" Nor does the Constitution imply such a power. Further, the members of the Houses of the Oireachtas do not have inherent power to hold such an inquiry. . .
"However, I consider that the form of declaration granted by the Divisional Court is too wide. The relief should relate only to the inquiry in issue.
"I would propose the following two orders. I would grant a declaration that the conducting by the joint Oireachtas Sub-Committee of an inquiry into the fatal shooting at Abbeylara on the 20th day of April, 2000 capable of leading to adverse findings of fact and conclusions (including a finding of unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good name is ultra vires[outside] in that the holding of such an inquiry is not within the inherent powers of the Houses of the Oireachtas."
Mr Justice Adrian Hardiman agreed with Mrs Justice Denham and added that the terms of the inquiry did not give Gardai involved in the inquiry adequate powers to cross-examine witness's which, he said, was their contistiutional right.,
"There can be no doubt that the proposed restrictions on cross-examination notified to the Garda applicants were very far reaching," Mr Justice Hardiman said.
"Cross-examination, together with submissions, was scheduled for one half of one day, at the end of the evidence. . .
"A person cannot be put on risk of a grave finding of fact against him without a full opportunity of defending himself or herself, including by cross-examination.
"The Committee submitted that this was not writ in stone and might have been changed and that we should presume it would have been changed if justice had so required. That would be more convincing as a submission if it had been said to the applicants when they first took exception to the restrictions."
"I wish to add that none of the findings in favour of the applicants depend in any essential way on the fact that they are members of An Garda Síochána. I believe that the same rights and immunities are available to any citizen whether he or she is a guard, a civil or public servant, or entirely outside the official sector."
The Joint Committee on Justice, Equality, Defence and Women's Rights began an inquiry into the shooting dead of Mr Carthy last year but it was halted shortly after it began when Garda lawyers claimed it had no power to conduct an investigation that could affect the reputation of non-elected individuals.
It has also been argued by lawyers for the gardaí that the inquiry could endanger the lives the 36 gardaí if they had to testify in public.
Mr Carthy (27) was shot dead by gardaí following a two-day-long siege at his house near Abbeylara. He was carrying a double-barrelled shotgun when he walked out of the house and past armed gardaí crouched behind the garden wall towards unarmed officers further up the road.
The Irish Times learned at the time the Garda unit responsible for the shooting had only recently begun training in sniping skills with the army. Training available from the army, which began within the past month, would have also allowed what is known as a "less than lethal" response to Mr. Carthy.