A three-judge divisional High Court has upheld a challenge by 36 garda∅ to an Oireachtas sub-committee inquiry into the shooting dead of John Carthy at Abbeylara, Co Longford.
There is "no inherent power" in Parliament to set up inquiries which are likely to lead to findings of fact or expressions of opinion adverse to the good name of people who are not members of the Oireachtas, the court found. Such a power was not inherent under either the 1937 Constitution or the Constitution of the Irish Free State of 1922.
The court also concluded such a power "is neither normal or necessarily exercised in other democratic States".
The court quashed a resolution of the Houses of the Oireachtas which led to the establishment of the sub-committee into the death of Mr Carthy on April 20th, 2000.
It also declared the procedures adopted by the sub-committee did not comply with the requirements of natural and constitutional justice and found that, when the sub-committee on April 12th, 2001, issued directions to garda∅ to attend before it, it did not have the required valid consent to do so.
Mr Carthy was shot dead by garda∅ following a siege at his home. A report by the Garda Commissioner was referred by the Dβil in October 2000 to the Joint Committee on Justice, Equality, Defence and Women's Rights (the Joint Committee) which in March 2001 established a sub-committee to examine the Commissioner's report.
Last May, 36 garda∅ who were directed to appear before the sub-committee (including four members of the Emergency Response Unit who fired at Mr Carthy), took a wide-ranging legal challenge to the sub-committee.
In a reserved 94-page judgment yesterday, the divisional court - consisting of the President of the High Court, Mr Justice Morris, Ms Justice Carroll and Mr Justice Kelly - upheld virtually all grounds of the challenge and granted a number of declarations and orders which have the effect of ending the sub-committee inquiry. They also awarded costs of the 19-day hearing to the garda∅ against the sub-committee and the State with a stay on those orders in the event of an appeal.
In its decision, the court stated there is "no inherent power in Parliament to conduct an inquiry involving adjudicative functions of the type which sought to be exercised by the sub-committee in this case" and declared that a public inquiry liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of the Houses of the Oireachtas is ultra vires (in excess of) the powers of such Houses.
The court quashed the Joint Committee resolution of April 10th, 2001, purporting to extend the terms of reference of the sub-committee so it might hear evidence in accordance with the 1997 Act and report to the Joint Committee, which report might include findings, conclusion and recommendations. It also quashed directions requiring the garda∅ to appear before the sub-committee, give evidence and produce documents.
In its judgment, the court noted that, when the sub-committee applied on April 11th, 2001, to the Oireachtas Compellability Committee for the required consent to direct the attendance of witnesses, the sub-committee had "mis-stated" its terms of reference. Those terms required the sub-committee to consider the Garda Commissioner's report on the Abbeylara incident but the sub-committee had "transmuted" the task given to it into one which required it to inquire into "the Abbeylara incident".
The court noted the Compellability Committee had given no written consent to the sub-committee's application until April 30th, 2001.
The court held the directions issued by the sub-committee on April 12th, directing garda∅ to appear before it, were issued in the absence of a valid consent and the sub-committee had no authority to issue them. It also found the written consent of April 30th, 2001, was not in accordance with statutory provisions.
It added that, because incorrect information was given to the Compellability Committee on April 11th, 2001, this in any event vitiated such consent as was given.
The sub-committee began hearings on April 24th, 2001. On April 26th, the order establishing the sub-committee was again amended. Lawyers for the garda∅ challenged the legality of that amendment on April 27th and sought information on it.
The court noted that information was not provided to the garda∅ then and was not provided until three days into the hearing of the legal challenge which began last October. It noted the sub-committee perceived its task as requiring it to inquire into the Abbeylara incident and to address possible conflicts of fact.
Counsel for the committee had "made it quite clear" the committee saw itself as having an adjudicative function and felt it was entitled to make findings on the evidence which findings could include a finding of unlawful killing at the hands of a particular garda or garda∅.
If the committee were to reach such conclusions, this would have the most profound consequence for the good name and livelihood of serving garda∅, the court said. It rejected arguments that a court examination of the garda∅'s complaints was a breach of the separation of powers. A citizen could not be subject to a parliamentary process "unless it is lawful, within jurisdiction and fair". The adjudication of whether those criteria had been met was a matter for the court, not for the Oireachtas or any of its committees.
The court found that, when the Oireachtas is not exercising legislative power, decisions made by committees are justiciable in circumstances where a person external to the Houses is compelled to attend and made subject to such decisions. The court also found persons appearing before the sub-committee were subject to unfair procedures.
The court noted the sub-committee was quite prepared to find facts and make findings, including, if appropriate, of unlawful death, and that the witness schedule for the hearing envisaged a 10-day hearing with 57 witnesses and no cross-examination until the ninth day. The court found the deferment of all cross-examination to the end of the hearing, and then only with the permission of the committee, fell far short of complying with constitutional justice.
The court noted there have been four such Oireachtas inquiries.
The full text of the judgment can be read on The Irish Times website at ireland.com
