Ruling today on Abbeylara inquiry appeal

 

The Supreme Court will rule today if politicians are entitled to inquire into the nature of the Garda operation at Abbeylara, Co Longford, which resulted in the fatal shooting of Mr John Carthy.

All seven Supreme Court judges are believed to have written individual judgments in 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.

Some of the judgments are understood to be very lengthy. They will consider whether the Oireachtas has powers to establish inquiries which may lead to findings of fact or expressions of opinion adverse to the good names of citizens who are not members of the Oireachtas.

The High Court's declaration that the Oireachtas has no inherent power to conduct such inquiries has paralysed parliamentary committees, particularly the Committee of Public Accounts and represents a "full-blooded assault" on the Oireachtas's entitlement to conduct inquiries, the Attorney General, Mr Michael McDowell, told the Supreme Court during the 10-day appeal hearing.

If the High Court decision stood, there could be no Oireachtas inquiries which impacted on the good names of citizens and no investigations into allegations of misappropriation, negligence or improper motive of persons using public funds, he said.

Mr McDowell argued the real issue was not whether the Oireachtas had powers to establish such inquiries but the extent of that power. He also argued it was within the scope of the Abbeylara subcommittee to take a view that the killing of Mr Carthy was unlawful and to express views whether the law needed to be changed on the discharge of firearms in such situations.

The fact that Mr McDowell was part of the senior legal team which presented the State's appeal underlines the importance of the case and today's decision will have far-reaching implications for the Oireachtas on conducting certain inquiries.

The work of the Abbeylara subcommittee has been halted by the legal proceedings and serious restrictions were also imposed on the work of the subcommittee which inquired into cost overruns in CIÉ's mini-CTC rail signalling project. Irrespective of today's decision, it is almost certain the Abbeylara subcommittee will be unable to complete its inquiry as it will cease to exist with the present Dáil.

The legal proceedings arose after John Carthy was shot four times by members of the Garda Emergency Response Unit after a siege at his home in April 2000.

There was considerable criticism of the Garda handling of the incident, and the Garda Commissioner's report, which concluded the death could not have been avoided, was referred by the Dáil in October 2000 to the Joint Oireachtas Committee on Justice, Defence, Equality and Women's Rights. In March 2001, the joint committee established the subcommittee.

It issued directions to 36 gardaí to appear before it. In May 2001, after public hearings had begun, the gardaí initiated judicial review proceedings challenging the subcommittee's conduct of the inquiry. Their lawyers particularly objected to the subcommittee asking what they described as "marksmen's" questions on the firing of the fourth and fatal shot.

A divisional High Court consisting of the then High Court President, Mr Justice Morris, Ms Justice Carroll and Mr Justice Kelly upheld the gardaí's challenge.

The subcommittee, the State, and Fine Gael deputy Mr Alan Shatter, who is a member of the committee, appealed that decision. Mr Shatter, making personal submissions, complained that the High Court failed to have due regard to the purpose of an inquiry, which is to elicit the truth about a matter of public concern and does not determine the rights of any individual.

He also argued that the High Court failed to pay proper regard to the role of gardaí and their duties and obligations and failed to address submissions received by the subcommittee from interested parties.

In addition to opposing the appeal, lawyers for the gardaí are seeking a declaration that inquiries likely to lead to findings of fact or expressions of opinion adverse to the good names of citizens cannot be conducted under the aegis of the Oireachtas by elected representatives.

Mr Donal O'Donnell SC, for the gardaí, argued that any report by the subcommittee into the Abbeylara incident could have the most serious practical effects on the good names and careers of the gardaí involved. If the subcommittee report reversed the conclusion of the Garda Commissioner - that there was no basis for any criminal prosecution of the gardaí - that would have far-reaching implications. That the report would attract privilege and could be published was very significant.