Howlin -v- The Hon. Mr. Justice Morris, [2005] IESC 85 (2005)

Docket Number:121 & 139/04
Party Name:Howlin, The Hon. Mr. Justice Morris
Judge:Geoghegan J. / Hardiman J.

THE SUPREME COURTMurray C.J., 121 & 139/04

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.







JUDGMENT of Mr. Justice Hardiman delivered on the 20th day of December, 2005.

This is the appeal of the respondent against the judgment and order of the High Court (Kearns J.) perfected the 2nd day of March, 2004, whereby that Court granted certiorari quashing an order of the respondent of the 28th day of February, 2003. This order had directed the applicant and the first-named Notice Party to make discovery of and produce the records and documentation referred to therein. In his notice of appeal dated the 23rd March, 2004, the respondent challenged specifically the finding that the applicant was entitled to invoke, and had invoked, Article 15.10 of the Constitution as a ground for resisting the respondent's order. By notice to vary dated the 26th March, 2004, the applicant broadened the scope of the issues on this appeal. He sought to invoke, in addition to Article 15.10, Article 15.13 of the Constitution to the same intent, and challenged the learned trial judge's findings in that regard. Furthermore, he challenges the finding of the learned trial judge "that the privilege conferred by Article 15.10 is a privilege of the House rather than [of] an individual member". The applicant further claims that he is entitled, apart from Article 15.10, to a privilege against an order such as the respondent's by reason of his status as a member of the National Parliament, pursuant to Articles 15 and 16 of the Constitution. The applicant furthermore claims that Article 15.10 is a self executing provision and that the learned trial judge should have so found. Finally, he claims that, apart from the Constitution, he is entitled to a common law privilege in the circumstances of this case, purely in his capacity as a deputy.

Background.The Parties. The applicant is a long standing member of Dáil Eireann representing the constituency of Wexford. The respondent is the sole member of the Tribunal named in the title and has since June 2002 been conducting an inquiry into allegations of a very grave kind involving certain gardaí currently or formerly attached to the Donegal division.

Eircom Ltd. has only an incidental role in the matters about to be discussed and was permitted to withdraw from the hearing of this appeal on the basis that it will, of course, comply with any valid order for discovery or production of documents.

The Committee on Procedures and Privileges of Dáil Eireann is a committee of the House to whom, by resolution of the 6th July, 2001, the power of the House contained in Article 15.10 of the Constitution was delegated. No issue was taken with the validity of that delegation.

The Tribunal. The Tribunal was appointed by instrument of the Minister for Justice entitled (Tribunals of Inquiry) (Evidence) Act, 1921 (Establishment of Tribunal), 2002, made on the 24th April, 2002. Previously, on the 28th March, 2002, each House of the Oireachtas had passed a resolution. This resolution, as passed by Dáil Eireann, recited the "serious public concern about allegations that members of the Garda Síochána in the Donegal Division engaged in unethical and criminal behaviour…";

and went on to note the report of Mr. Shane Murphy S.C. in which he expressed the opinion that a Tribunal of Inquiry "represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance…"

It went on to resolve that it was expedient to establish a tribunal to inquire urgently into "the following definite matters of urgent public importance".

The specific matters then set out in the resolution are mirrored in the terms of reference of the Tribunal contained in the instrument of the Minister referred to above. They refer to such well known and profoundly serious matters as the death of Mr. Richie Barron and the arrest and treatment of persons in custody in connection with that investigation, the alleged harassment of the McBrearty family and their associates, and went on to refer specifically at sub-paragraph (h) to:"Allegations contained in documents received by Deputy Jim Higgins on the 25th June, 2000, and information received by Deputy Brendan Howlin on the 25th June, 2000 that two senior members of An Garda Síochána may have acted with impropriety".

These allegations had had a long history prior to the resolutions of the Dáil and Seanad. In the year 2000, certain of them, including those relating to the death of Mr. Barron and the treatment of the McBreartys, were under investigation by an internal garda inquiry headed by Assistant Commissioner Carty. This was often called "The Carty Enquiry".

The information. On the 25th June, 2000, a Sunday, Mr. Howlin and another public representative, Mr. Higgins, received information, both in oral and in documentary form, purporting to represent confidential information from a serving Garda relating to the investigation under Assistant Commissioner Carty. The documentary version is attached to this judgment as Appendix 1. The substance of this information was to the effect that the investigation might be compromised because of prior dealings between one of the members said to be under investigation and two Assistant Commissioners of An Garda Síochána, including the gentleman who was conducting the inquiry. The prior dealings alleged were quite remote in time and of a disreputable nature.

These allegations were indeed (as Mr. Howlin himself was to say several times later on) of a startling nature especially given that the investigation being conducted by Assistant Commissioner Carty related to allegations that were, again to quote Mr. Howlin, "… some of the most serious ever made about public servants in the State…".

On the following day Deputy Howlin and Deputy Higgins met the then Minister for Justice, to whom they repeated these allegations. As a result of this, Deputy Howlin was interviewed by senior gardaí, including another Assistant Commissioner, on the 1st July, 2000. To these officers he indicated that his immediate source was a person whom he trusted and who had been a source of information to him previously in relation to the McBrearty matter. Behind this source was another, the serving member of An Garda Síochána who was providing the information to the immediate source. He refused to identify either source. He undertook to get back to his source and subsequently told the Gardaí that his informant was not willing to have his name given to the Gardái; that the garda source "will give evidence in court"; and that they should interview five named members of An Garda Síochána, ranging in rank from Garda to Chief Superintendent.

Deputy Howlin made it perfectly clear at all times that he personally had no evidence or information to substantiate the claims made by his informant. In addition to the principal immediate concern - alleged compromise of the Carty investigation - the material which Deputy drew to the attention of the Minister and the Gardaí included concerns that every case in which a named Detective Sergeant had been involved "needs rechecking"; that "a large number of convictions were achieved by 'planting' evidence": that the named Detective Sergeant had a considerable quantity of stolen property available to him for that purpose; and that the same Sergeant had been rewarded for his unlawful activities by being permitted to claim overtime and expenses which were not warranted. It was alleged to be the complicity of very senior officers in this conduct which permitted the Sergeant (allegedly) to frustrate the Carty Inquiry. It was further alleged that the Sergeant had a long written record of his own activities while stationed in Dublin which "is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation".

Nature of these allegations. It must be immediately clear to anyone who has the opportunity of considering the information given to the Minister and the Gardaí by Deputy Howlin that it is of an extremely serious nature. An allegation of corruption in the Gardái and the obtaining of convictions by planting evidence would themselves be matters of great seriousness. But this information goes considerably further: it alleges that an official Garda Inquiry, conducted at the very highest level, into behaviour of that sort was itself compromised by the fact that a member who is relatively junior in rank if not in experience, and who was a subject of the Inquiry, had information about senior officers which would prevent them from properly investigating him. The information communicated by the Deputy also suggested that the named Detective Sergeant's activities were well known to a large number of members of An Garda Síochána and were "a running joke" in those circles. If this is so it would suggest a widespread malaise within the force leading to a situation where criminal conduct by members in their official capacity is widely known but winked at.

In light of this, it is clear that Deputy Howlin was acting very properly in bringing the information which he had to the attention of the Minister and that the latter acted very properly in setting in motion the Inquiry in the course of which Deputy Howlin was interviewed on the 1st July, 2000. It is quite clear that this Inquiry faced considerable difficulties because those conducting it were unaware of the identity of the apparently well placed source who had made the allegations. It does not appear to have made progress in the investigation. Other modes of inquiry were considered by the Authorities who apart from other considerations had to bear in mind the risk of prejudice...

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