Any report by the Oireachtas sub-committee on the fatal shooting by gardaí of Mr John Carthy at Abbeylara, Co Longford, could have the most serious practical effects on the good names and careers of the gardaí involved, the Supreme Court was told yesterday.
Mr Donal O'Donnell SC, for 36 gardaí who successfully challenged the conduct of the inquiry by the Abbeylara sub-committee in the High Court, said if any report by the sub-committee reversed the conclusions of the Garda Commissioner's report on the incident (which found no basis for any criminal prosecution against any of the gardaí), this would have far-reaching implications for his clients.
He said there was a clear distinction between an expression of opinion by a parliamentary committee and by "the man in the street".
Any report from an Oireachtas committee attacted privilege, could be published and could provide a basis for wide-ranging comment both within and outside the Oireachtas. The fact that the report attracted privilege was significant.
In practical terms, it would have the most serious effect on the careers and good names of his clients.
Mr O'Donnell said that while serious matters of public controversy could and must be raised by members of the Oireachtas in their capacity as representatives of the people, that did not make the members of the Oireachtas the determiners of such matters.
He also complained that the sub-committee had failed to adopt fair procedures, most critically in relation to the right to cross-examine. The deferment of the right to cross-examination was a clear breach of his clients' rights to fair procedures.
Mr O'Donnell was continuing his submissions opposing an appeal by the sub-committee, by the Fine Gael TD, Mr Alan Shatter, a member of the sub-committee who is making his own submissions, and by the State against a High Court decision upholding a challenge by the gardaí to the inquiry into the shooting dead of Mr Carthy in April 2000.
Yesterday Mr O'Donnell argued that it was significant that while the sub-committee was claiming an "enormous" power to conduct inquiries, there was not even the slightest hint in the Constitution that such a power was there.
There was a total absence of any express justification in the Constitution for what the sub-committee was contending for, and the court should ask what the meaning was of the absence of such an express provision.
The Constitution provided for all power to come from the people, and the court must ask if the argument advanced by the sub-committee that it had an inherent power to conduct such inquiries was so self-evident that the people would have considered it did not require specific enumeration.
Counsel agreed with the Chief Justice that there was nothing to prevent the Oireachtas enacting legislation to set up a specific inquiry, but any such inquiry was subject to constitutional scrutiny and had to have regard to the rights of citizens to their good names and to issues of proportionality.
The appeal continues today.
