The situation in which an Oireachtas sub-committee inquiry into the fatal shooting of Mr John Carthy at Abbeylara has ended up was caused by "errors and mistakes of law", the Supreme Court was told yesterday.
Mr Donal O'Donnell SC, for 36 gardaí challenging the conduct of the inquiry, asked how the Abbeylara sub-committee could assert that it was entitled to assess, through "utterly wrong" procedures, the wrongful taking of life. That issue had never before been addressed in this way, he said.
The committee had boldly asserted an entitlement to make a finding of homicide when it had no such power, he argued. This was "an immensely troubling case" which brought the Supreme Court to a point where the dividing lines between the executive, legislature and judicial power met, he said, and which raised in a fundamental way who the Constitution was written for.
Most people would find the sub-committee's proceedings unsettling and disconcerting, he said. The question was whether that was a necessary consequence of what the Constitution required or had the sub-committee transgressed its role.
How had it come about that the Oireachtas had found itself in an adversarial and inquisitorial relationship with some of the people whose duty it was to represent, and how could it determine individual responsibility for a death, he asked. The Minister for Justice was meant to be made accountable to the Dáíl for the Garda and an Oireachtas committee was purporting to ask questions of individual gardaí which the Minister himself could not ask.
Mr O'Donnell added that it was surely a troubling assertion that the Attorney General had come before the Supreme Court and argued that the rule of bias did not apply to the Houses of the Oireachtas.
The rule against bias was a component part of the rules of natural justice and it was being sought to at least bend, if not obliterate, that rule. This gave a sense of the enormous power and jurisdiction which the State was arguing for in this case.
Mr John Rogers SC, also for the gardaí, argued that the High Court was correct in finding that the sub-committee had failed to observe fair procedures in the conduct of its inquiry.
It had issued directions on April 12th compelling gardaí to appear before its public hearings and give evidence, despite not then having the required statutory consent to issue such directions.
Counsel were opposing the continuing appeal against the High Court's upholding of the challenge by the gardaí to the conduct of the sub-committee inquiry.
The hearing continues today.
