Tuesday 18 December 2018

Garda seeks quashing of Disclosures Tribunal report, claiming judge was biased

Keith Harrison
Keith Harrison
Shane Phelan

Shane Phelan

A garda has been given leave by the High Court to bring proceedings aimed at quashing a report by the Disclosures Tribunal.

Lawyers for Garda Keith Harrison brought the application today, alleging tribunal chairman Mr Justice Peter Charleton was biased and should have recused himself due to a prior working relationship with a senior garda who gave evidence at the inquiry.

Gda Harrison was severely criticised in the tribunal’s second interim report, published in November last year, and again in its third interim report, published last month.

The judge dismissed allegations made by Gda Harrison and his partner Marisa Simms that gardaí had coerced her to make a false complaint against him, and directed Tusla to visit their family home.

Mr Justice Charleton described some parts of their story as "nonsense" and exonerated gardaí and Tusla officials.

But Gda Harrison has now alleged the judge should have recused himself from the module due to a prior working relationship with Chief Superintendent Terry McGinn, who was the most senior officer in the Donegal garda division during the relevant period.

Earlier in his career, Mr Justice Charleton acted as counsel for the Morris Tribunal, which investigated Garda corruption in Donegal.

Chief Supt McGinn was the Garda liaison officer to the Morris Tribunal and would later be a key witness in the Disclosures Tribunal module dealing with Gda Harrison’s complaint.

Mark Harty SC, for Gda Harrison, said his client recently learned of newspaper reports from 2006, which he said demonstrated the judge knew Chief Supt McGinn and had worked extensively with her.

The articles related to the criticism of an RTÉ 'Morning Ireland' re-enactment of a Morris Tribunal hearing.

They detailed how Mr Justice Charleton, then barrister for the tribunal, said the re-enactment created "a deeply unfortunate and unpleasant impression” that Chief Supt McGinn was not interested when a garda came to her wanting to tell the truth.

The then barrister also said Chief Supt McGinn fulfilled her post as liaison officer with distinction.

Mr Harty said none of this was disclosed at the Disclosures Tribunal and that his client had “no knowledge of the relationship” until recently.

Had this been known earlier, his client would have asked the judge to recuse himself from the module of the tribunal dealing with his allegations.

A statement of grounds submitted to the court said that subsequent to the discovery of the newspaper articles, a solicitor for Gda Harrison wrote to the judge saying the “prior involvement” between him and Chief Supt McGinn “ought to have been disclosed and that this involvement revealed at the very least an apprehension or perception of bias”.

The letter called upon the judge to withdraw his reports in so far as their findings relate to Gda Harrison. It also requested that he recuse himself from further dealing with Gda Harrison, such as decisions in relation to legal costs.

The court heard that, in response, the tribunal stated it was a matter of public record Mr Justice Charleton was lead counsel to the Morris Tribunal from 2002 until 2006

“As such, he had professional interactions with counsel, solicitors, witnesses and liaison officers from any agencies represented at the tribunal,” the response said.

The response said the sole basis on which Gda Harrison alleged bias appeared to be the correcting by Mr Justice Charleton of an erroneous report.

It said the judge had “no recollection” of this, but that such applications were common.

“In the circumstances, your proposal that the tribunal take the steps outlined in your letter is absurd and repugnant to the tribunal’s duty to the Oireachtas and the people of Ireland,” it said.

Mr Justice Seamus Noonan said he was satisfied Gda Harrison had demonstrated arguable grounds and granted leave to seek a judicial review.

The tribunal was not represented in court.

The matter will return to the court in the coming weeks.

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