Harrison v Charleton

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 23 August 2019
• Neutral Citation: [2019] IEHC 626
• Docket Number: [2018/939 JR]
• Court: High Court
• Date: 23 August 2019

BETWEEN

KEITH HARRISON

APPLICANT

AND

PETER CHARLETON

RESPONDENT

[2019] IEHC 626

Donnelly

[2018/939 JR]

THE HIGH COURT

JUDGMENT of Ms. Justice Donnelly delivered on the 23rd day of August, 2019

Introduction

1 “Justice must not only be done but it must be seen to be done”. This pithy statement encapsulates the meaning behind the legal and constitutional right to a fair and public hearing before an independent and impartial tribunal. Not only must the decision maker be free from actual bias but there must also be no appearance of bias. As Denham J. (as she then was) in Bula Ltd v. Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 stated:

“there is well settled Irish law that the test is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not receive a fair trial of the issues.”

2 In the present case, the applicant was the express subject matter of one of the terms of reference of the Tribunal of Inquiry into protected disclosures under the Protected Disclosures Act, 2014 and certain other matters (“the Disclosures Tribunal”). The respondent was appointed sole member of this Tribunal. The second and third interim reports of the Disclosures Tribunal strongly criticised the applicant.

3 In these proceedings, the applicant seeks to quash those interim reports on a claim of objective bias on the part of the respondent as well as related reliefs. Despite what could be understood from the wording of the originating letter and the statement grounding this application for judicial review, the applicant advanced his case before this court on the sole basis of objective bias. That is the only basis upon which this case has been argued and this judgment has been considered. There is no suggestion that the respondent was in any way actually biased in the findings that he made in those reports.

Background

4 The Disclosures Tribunal was established on the 17th February, 2017 to investigate a considerable number of topics primarily into what are termed “protective disclosures” made under the Protected Disclosures Act, 2014 (“the 2014 Act”). These terms primarily involved two other members of An Garda Síochána: Sergeant Maurice McCabe and Superintendent David Taylor. Only two terms of reference involved the respondent; and he was only named in one. At term N, the Disclosures Tribunal was to “investigate contacts between members of An Garda Síochána and Túsla in relation to Garda Keith Harrison.” At term O, the Disclosures Tribunal was “to investigate any pattern of the creation, distribution and use by Túsla of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use knowingly by senior members of the Garda Síochána of these files to discredit members who had made such allegations.”

5 The applicant had made protected disclosures under the 2014 Act. He also had made an earlier disclosure in respect of an incident in 2008 to a separate whistleblowing entity. In very brief outline, the applicant's whistleblowing under the 2014 Act, insofar as relevant, appeared to relate to his treatment in the Donegal division and in particular the notification by An Garda Síochána to Tusla, previously the Health Service Executive (“the HSE”) arising from disputed domestic violence concerns in relation to the applicant and his partner insofar as those matters might have the potential to affect his partner's children.

6 The applicant's complaint in the present case relates to professional contact between the respondent in his role as lead counsel to the Tribunal of Inquiry into certain gardaí in the Donegal Division (“the Morris Tribunal”). Superintendent (as she then was) Terry McGinn had been appointed by the Commissioner of An Garda Síochána to act as liaison officer to the Morris Tribunal in March 2002. She was promoted to Chief Superintendent of the Donegal Division in August 2005. On her promotion another senior garda was appointed liaison officer. The Morris Tribunal sat from 2002 to 2008.

7 At the relevant time of the applicant's Garda service in Donegal, Chief Superintendent McGinn was the Chief Superintendent running the Donegal division. As such she was in overall control of the gardaí in that division. She had chaired certain high level meetings of senior garda personnel as a result of which notifications were made to Tusla as well as the Garda Síochána Ombudsman Commission which touched or concerned the applicant.

8 Chief Superintendent McGinn was not involved in a direct way in any of the reports that had been made to various members of An Garda Síochána by a member of the applicant's partner's family, or by other individuals, about the nature of the relationship between the applicant and his partner. While she had directed that a statement be taken from the applicant's partner, she was not involved in the taking of that statement. Arising from the detail in that statement, a meeting was convened by the Chief Superintendent in order to determine what steps were to be taken in consequence thereof. The question of a referral to the HSE was discussed as part of that meeting. A HSE referral was made by Superintendent McGovern two days later.

9 In the second interim report which dealt exclusively with reference N of the Tribunal, the respondent rejected firmly the applicant's allegations of a concerted campaign against him. He also rejected the applicant's partner's allegation that the statement had been coerced from her. The respondent roundly criticised the applicant in respect of his conduct in moving back to Donegal to serve in circumstances where a significant part of his reasoning was to pursue a relationship with this partner. The criticism was levelled by the respondent because of the view he took about the timing of the transfer where there was an ongoing investigation into the manslaughter of a well- known and well liked garda in that station by the brother of the woman with whom the applicant was pursuing the relationship.

10 The fact that the respondent had been lead counsel to the Morris Tribunal was known to this applicant at the commencement of the Tribunal of which the respondent was chair. The applicant avers he had no knowledge at the commencement of the oral hearings in September 2017, that Chief Superintendent McGinn had been the garda liaison officer.

11 On the 6th October, 2017, Chief Superintendent McGinn was called as a witness before the Tribunal. In answer to questions asked by counsel for the Tribunal, Chief Superintendent McGinn confirmed that she had been liaison officer to the Morris Tribunal. On the following Monday, counsel on behalf of the applicant questioned the Chief Superintendent further. It was put to her by counsel that she had been praised by the Morris Tribunal for her cooperation with the Tribunal. Counsel for the applicant went on to question Chief Superintendent McGinn as follows:

Q. I think therefore in terms of that, I take it that you liaised with the Tribunal directly in respect of any evidential matters that needed to be sorted out through garda headquarters, is that correct?

A. My purpose was as Tribunal liaison officer, which I was appointed by the Garda Commissioner at the time because I had no involvement in Donegal prior to that, and I was a newly promoted superintendent that had been assigned to the division and my role was to facilitate, you know, not the evidence but the queries from the Tribunal to garda headquarters and to follow up on any enquiries that were outstanding in terms of notifying people that they should be in attendance because they hadn't got the correspondence or following up, etc, etc, etc. That was my role.

Q. That required very close cooperation with the Tribunal on your part.

A. I was completely independently (sic) to the Tribunal.

Q. I appreciate you were independent.

A. My role was just as a liaison to the flow of information between the two organisations – the Tribunal and An Garda Síochána.”

12 There was no further expansion on the respective roles or interactions between the respondent and the Chief Superintendent at the Morris Tribunal.

13 The second interim report was published by the Disclosures Tribunal on the 30th November, 2017. The applicant complains that the conduct of Chief Superintendent McGinn and her management of the Donegal Division were highly praised in this report. She was described in terms of a witness of truth as “eloquent” and a “determined commander who took decisions”. The cross examination of her by counsel for the applicant was described as “unkind”. The statement grounding the application for judicial review (“the statement of grounds”) recites “but there is no mention of Chief Superintendent McGinn's role as garda liaison officer to the Morris Tribunal.”

14 The Disclosures Tribunal published the third interim report on the 11th October, 2018. There was further criticism directed at the applicant and the Chief Superintendent was again praised.

15 The statement of grounds states that on the same day two newspaper articles relating to proceedings before the Morris Tribunal came to the attention of the applicant. In his affidavit verifying the statement of grounds, the applicant avers that it was only on that date that he or his legal team became aware of the newspaper articles. At no point does he explain how they came to his attention. It is a reasonable inference to draw that either the applicant or his lawyers carried out an in depth internet search at that point.

16 The applicant then refers to two articles in the Irish Times published on the 30th March, 2006 and 31st March, 2006. These articles arose out of a clarification read into the record of the Morris Tribunal concerning an RTE reconstruction that had been aired on RTE's “Morning Ireland” programme. This was...