Maguire v Ardagh

• Jurisdiction: Ireland
• Judgment Date: 23 November 2001
• Neutral Citation: [2001] IEHC 133
• Date: 23 November 2001
• Court: High Court

[2001] IEHC 133

THE HIGH COURT

Morris P.

Carroll J.

Kelly J.

Record Number 329JR/2001

MAGUIRE & ORS v. ARDAGH & ORS [ABBEYLARA]

JUDICIAL REVIEW

BETWEEN

MARTIN MAGUIRE, FRANK McHUGH, TOM DOOLEY, MARY MANGAN, DAN MONAGHAN, ANTHONY FOLEY, JAMES QUINN, ALAN MURRAY, MAEVE GORMAN, JOHN GIBBONS, COLIN WHITE, JACK KILROY, GERRY BARNES, EUGENE DUNNE, JUSTIN BROWNE, EUGENE BOLAND, JAMES CAMPBELL, MICHAEL JACKSON, GERRY RUSSELL, MICHAEL O'SULLIVAN, AIDAN McCABE, WILLIAM SISK, RONAN CAREY, TONY RYAN JOSEPH FINNEGAN, OLIVER FLAHERTY, DESMOND MALLEY, PETER EARLEY, OLIVER CASSIDY, DAVID MARTIN, MARY ANN O'BOYLE, TURLOUGH BUREN, JOHN BOYLE, BLAITHIN MORAN, SINEAD CONNIFFE AND FRANK REYNOLDS

APPLICANTS

AND

SEAN ARDAGH, MONICA BARNES, BRENDAN HOWLIN, MICHAEL MOYNIHAN, MARIAN McGENNIS, ALAN SHATTER, DENIS O'DONOVAN, THOMAS ENRIGHT, BEVERLEY COOPER-FLYNN, FRANCES FITZGERALD, JOHN McGUINNESS, JAN O'SULLIVAN, BILLY TIMMINS, EDDIE WADE, GEORGE V. WRIGHT, EDDIE BOHAN,

MAGUIRE & ORS v. ARDAGH & ORS [ABBEYLARA]

HELEN KEOGH, TONY KETT AND KATHLEEN O'MEARA, MEMBERS OF THE JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMENS' RIGHTS BEING THE MEMBERS FOR THE TIMEBEING OF THE OIREACHTAS JOINT COMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMENS' RIGHTS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S2

PUBLIC SERVICE MANAGEMENT ACT 1997 S5(2)

PUBLIC SERVICE MANAGEMENT ACT 1997 S10

ORDERS OF REFERENCE OF THE COMMITTEE OF PUBLIC ACCOUNTS

COMPTROLLER AND AUDITOR GENERAL (AMDT) ACT 1993

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S3

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S3(1)

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S3(7)

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S3(8)

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S16(3)

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S3(9)

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S1

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S9(b)

RSC O.84 r26

RSC O.84 r20

HAUGHEY, RE 1971 IR 217

CANE V DUBLIN CORPORATION 1927 IR 582

CONSTITUTION ART 34.3

CONSTITUTION ART 13.8

CONSTITUTION ART 22.2.5

CONSTITUTION ART 15

CONSTITUTION ART 15.13

CONSTITUTION ART 15.12

CONSTITUTION ART 34

CONSTITUTION ART 15.10

WIRELESS DEALERS ASSOCIATIONS V FAIR TRADE COMMISSION UNREP SUPREME 14.3.1956

CONSTITUTION ART 26

CONSTITUTION ART 34.3.2

ROCHE V IRELAND UNREP CARROLL 17.7.1983 1983/12/3510

FINN V MIN FOR THE ENVIRONMENT 1983 IR 154

O'MALLEY V CEANN COMHAIRLE 1997 1 IR 427

COMMITTEE OF PUBLIC ACCOUNTS OF DAIL EIREANN (PRIVILEGE & PROCEDURE) ACT 1970

CONSTITUTION ART 6

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 542

QUINN, STATE V RYAN 1965 IR 70

HAUGHEY V MORIARTY 1999 3 IR 1

QUINN, STATE V RYAN 1965 IR 70 DAVID GWYNN MORGAN SEPARATION OF POWERS IN THE IRISH CONSTITUTION 1997 CH11

AG V HAMILTON (N 0 2) 1993 3 IR 227

KELLY ON THE IRISH CONSTITUTION 138

WATKINS V US 354 US 178

GOJACK V US 384 US 702

TRIBE ON AMERICAN CONSTITUTIONAL LAW 3ED 793–794

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVILEGES AND IMMUNITIES OF WITNESSES) ACT 1997 S3(9)(a)

LAWLOR V FLOOD 1999 3 IR 107

CONSTITUTION ART 5

CONSTITUTION ART 45

OIREACHTAS WITNESSES ACTS 1924–1997

CONSTITUTION (CONSEQUENTIAL PROVISIONS) ACT 1937

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (PRIVILEGE AND PROCEDURE) ACT 1976

COMMITTEE OF PUBLIC ACCOUNTS OF DAIL EIREANN (PRIVILEGE AND PROCEDURE) ACT 1970

SELECT COMMITTEE ON LEGISLATION & SECURITY OF DAIL EIREANN (PRIVILEGE AND IMMUNITY) ACT 1994

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

KEETON TRIAL BY TRIBUNAL

SALMON REPORT PARA 35 & 36

CONSTITUTION OF SAORSTAT EIREANN 1922

KOHN THE CONSTITUTION OF THE IRISH FREE STATE

HOWARD V GOSSETT 1845 QB 367

MCGRAIN V DAUGHERTY 273 US 135

CONSTITUTION ART 12.10

CONSTITUTION ART 13.8.2

CONSTITUTION ART 35.4

Synopsis:

- [2002] 1 IR 385

The applicants, members of An Garda Síochána, had been involved in an incident at Abbeylara in which a young man was shot dead. The respondents as members of an Oireachtas sub-committee sought to inquire into the incident and purported to call the applicants to give evidence before them. The applicants instituted judicial review proceedings seeking to challenge the actions of the respondents and sought a declaration that the proposed inquiry was ultra vires the powers of the Houses of the Oireachtas. The applicants challenged the jurisdiction of the committee to carry out the inquiry and claimed that there had been a failure to comply with the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges And Immunities Of Witnesses) Act, 1997.

Held by the High Court, sitting as a divisional court, gave judgment in favour of the applicants. Nowhere in the Constitution was there a provision that provided that such an inquiry was immune from review. Persons could only be compelled to take part in Parliamentary inquiries, be subjected to cross-examination and the possibility of adverse findings if the committee was acting within jurisdiction. There was no inherent power in parliament to conduct an inquiry involving adjudicative functions of the type the sub-committee had sought to exercise. Such a power did not exist under the present constitutional regime nor did it exist under the Constitution of the Free State of 1922.

1 Judgment of The Court delivered the 23rd day of November 2001

Introduction

2 On the 19th/20th April 2000 an incident occurred at Toneymore, Abbeylara, Co. Longford involving a 27 year old man called John Carthy. (Mr. Carthy). The incident came to an end with Mr. Carthy being shot dead by the Garda.

3 Chief Superintendent Adrian Culligan was appointed by the Commissioner of the Garda to investigate the circumstances surrounding the events which resulted in Mr. Carthy's death. In particular the Chief Superintendent was asked to address:

4 (a) The preparation of a file for submission to the Director of Public Prosecutions including recommendations or otherwise, as to whether criminal charges should be preferred;

5 (b) The preparation of all necessary documents for the Coroner and,

6 (c) An assessment of the effectiveness, or otherwise of the Garda operation.

7 Chief Superintendent Culligan commenced his investigation on the 21st April 2000 and submitted his report to the Commissioner on the 28th June 2000.

8 The Commissioner in turn reported to the Minister for Justice, Equality and Law Reform.

9 The Minister placed the report before the National Parliament which in turn referred it to a Joint Committee of both Houses. That Committee considered the report and submitted it to both Houses in the form of an interim report. This meant that the report could be published and it was.

10 Submissions and observations were invited in respect of that report and a total of 21 submissions were received by the Joint Committee. On the 8th March 2001 the Joint Committee purported to establish a sub-committee and it is that reference and the work of the sub-committee so formed that is the subject matter of this Judicial Review.

11 The work of the sub-committee has been postponed pending the determination of these proceedings.

The Parties

12 All of the Applicants are members of the Garda Siochana who have been the subject of a direction to attend before the sub-committee in order to give evidence to it. Some were directly involved in the incident; others were not. Included amongst the applicants are the officers who shot Mr. Carthy.

13 All of the Respondents with the exception of the last two are members of a Parliamentary Joint Committee with the rather cumbersome title of "Oireachtas Joint Committee on Justice, Equality, Defence and Womens' Rights" (hereinafter "the Joint Committee").

14 The first seven Respondents are the members of the sub-committee which was formed by the Joint Committee and which is known as the "sub-committee on the Abbeylara incident." (Hereinafter "the sub-committee").

15 There is one further Parliamentary Committee which will be referred to frequently in the course of this Judgment which it is convenient to identify at this stage. This is a sub-committee appointed jointly by the Committee on Procedure and Privileges of each House pursuant to the provisions of the Committees of the House of the Oireachtas (Compellability, Privileges and Immunites of Witnesses) Act 1997. For ease of reference we shall refer to this sub-committee throughout this Judgment as "the Compellability Committee."

The Reference from the Dail

16 On the 25th October 2000 the Dail resolved as follows:

"That the Report to the Minister for Justice, Equality and Law Reform by the Commissioner of the Garda Siochana on the fatal shooting of John Carthy at Abbeylara, Co. Longford, on the 20th April, 2000 be referred to the Joint Committee on Justice, Equality, Defence and Womens' Rights in accordance with paragraph (2) of the Orders of Reference of that Committee."

17 The Applicants call attention to the fact that the resolution of the Dail did no more than refer the Commissioner's Report to the Joint Committee. It did so in accordance with Paragraph (2) of the Orders of Reference of the Joint Committee. Paragraph 2 of the Dail Orders of Reference provides as follows:

"(a) The Select Committee shall be...