THE STATE has been ordered to produce to the High Court documents of the McEntee Commission of Investigation into the 1974 Dublin and Monaghan bombings sought by relatives of victims for their legal action to secure a sworn public inquiry into the bombings.
High Court Master Edmund Honohan's order means the documents, including new material secured by the McEntee commission, must be produced to the court which will then assess - perhaps in private - whether the State is entitled to claim privilege over them.
The State had opposed disclosure, claiming this would pose a risk to life, endanger State security and breach assurances of confidentiality given by Patrick McEntee SC to those who provided the documents. It also argued the relatives had failed to make out a case for a sworn public inquiry.
Master Honohan indicated yesterday the plaintiff relatives - Mark O'Neill, Elizabeth O'Brien and Frank Massey - "may just have got themselves a stateable case" - a case where the possibility of success could not altogether be ruled out at this stage.
His own view was there was a "certain unreality" about the case and that it, while understandable on a human level and stateable on a legal level, was largely theoretical and tenuous.
The relatives had to first prove their claim that Article 2 of the European Convention on Human Rights entitles them to a sworn public inquiry into the bombings. They then had to prove the inquiries to date - including by the Garda, the Barron inquiry, the Oireachtas committee and the McEntee commission - were inadequate and it was only in that context that the documents of the McEntee commission "might" be subject to assessment.
Article 2 obliges a state to protect the lives of its citizens and the relatives contend that, if crimes such as the bombings are left unresolved, the rule of law is seen to be ineffective and, for that reason, the populace may be targeted again. The guarantee of the right to life guarantees a corresponding right to an effective investigation of death, they claim.
Master Honohan said his own view on the Article 2 point was there was no way Article 2 entitled the bereaved to a public inquiry at this time.
However, he added, he was also unconvinced by the State's claim that lives would be put at risk if the new materials were to enter the public domain. He noted Mr McEntee, in a letter to the Taoiseach in March 2007, had expressed his view the material "gives rise to risks to the lives of persons, to risks to the security of the State" and to "risks of damaging the relationship between this State and external agencies and entities".
Such a sweeping statement looks like a formula which in the wrong hands could be used as a smokescreen, the Master said. He queried if Mr McEntee had specialist expertise relating to his expressed concerns, and believed the court would be well justified in double-checking Mr McEntee's assessment. No specifics were given to support the claims made, he added.
One must wonder whether the arguments by the State of risk to life and State security were simply listed in a formulaic response to the request for documents, rather than as conclusions reached after a careful weighing of the facts, he said. If it was the norm to release archived State papers after 30 years, how could it seriously be argued the security of the State is at risk at this remove from the events of 1974? It was also a particularly curious assertion given the political developments in these islands over the past 10 years.
There was also the remarkable factor that Mr McEntee himself had signalled that the new material he had seen is significant. That in itself might be enough to persuade the court it must itself weigh the significance of the missing pieces of the jigsaw. However, he added, complete answers may not be necessary for the protection of life.
In all those circumstances, he could not accept the relatives application must fail altogether now, he said. He would make an order for discovery - for the documents to be listed - and when that was done, the court would peruse the documents to decide if they are privileged.
Earlier, the Master said the case raised the broad issue of whether the Government is ever under a legal obligation to inquire into any matter of apparent concern to the public or a particularly affected group of citizens.
