THE partner of a man shot dead by gardaí during an attempted armed robbery of a cash-in-transit van wants the High Court to overturn a Commission of Investigation finding that the killing was lawful.
Grainne Nic Gibb, the partner of Ronan MacLochlainn (28), who was shot dead in the 1998 incident in Ashford, Co Wicklow, wants the court to expunge the Commission's finding from its draft report and to make findings about the adequacy of the evidence on which the Commission's findings were made.
The Commission, whose sole member is senior counsel Mary Rose Gearty, was set up in 2014 and heard 60 days of evidence.
Ms NicGibb's lawyer claimed the gardai were in a position to stop the attempted robbery beforehand and arrest Mr McLochlainn but instead "went for the spectacular".
The application for the report to be amended under the Commissions of Investigation Act 2004 was brought before Ms Justice Mary Faherty who put the case back to later this month to consider the report and submissions.
The defendant Commission was not represented.
Ms Gearty said she was prepared to assist but did not see it was necessary to be represented unless the court required it, Ms Nic Gibb's solicitor James MacGuill said.
The Commission was set up after Ms NicGibb brought proceedings in the European Court of Justice following an inquest into the death in 2010.
In response, Mr MacGuill said, the State issued a declaration the inquest had not been sufficient to address the European Convention right to life provision.
The Garda Commissioner, who is a notice party in the case, was also not represented.
Mr MacGuill said it was his client's case the Commission's finding of lawful killing was not only unsafe but not required under its terms of reference.
There were gaps in evidence which were unexplained, evidence of inadequate documentary evidence and a combination of factors which made it impossible for an independent fact finder to safely come to a conclusion, he said.
Mr MacGuill said in 1998 a group of dissident IRA men were put under surveillance by the National Surveillance Unit (NSU) of the gardai. Tracking devices were attached to two vans which had been parked in Heuston Station car park in Dublin in April 1998.
One of the gaps in evidence related to CCTV footage from Heuston in which Mr MacLochlainn was observed transferring a sports type bag from one van and putting it in a car.
That footage was no longer available, nor was any explanation given as to why not.
When they arrived in Ashford on May 1, the occupants of the vans, dressed in overalls, got out and put up signs to stop traffic.
The Commission of Inquiry heard gardai believed there was going to be a kidnapping or high value robbery, or that explosives were to be transferred. An officer realised the target was a cash-in-transit van on its way to the scene.
An issue which arose was whether action should have been taken at this stage to stop it, perhaps by a simple measure of parking a police car on the opposite side of the road, Mr MacGuill said.
However, gardai arrived and an attack was mounted on the vans with both members of the gardai NSU and the Emergency Response Unit (ERU) involved.
While an initial garda statement said shots had been exchanged, only gardai discharged their weapons. An issue in the case was were the gardai entitled to do open fire on the basis of a legitimate apprehension their lives were in danger, Mr MacGuill said.
Mr MacLochlainn, who was armed, sought to flee and hi-jacked another vehicle.
Mr MacGuill said from that point on, it was very difficult to reconcile the available evidence.
This included matters related to damage from a collision between the vehicle Mr MacLochlain was in and garda vehicles, the location afterwards of a firearm in the vehicle or on the road, and preservation of garda vehicles at the scene.
There were 42 members of the ERU and the NSU involved that day.
While a detective superintendent issued a direction that no vehicles were to be moved, a lower ranking ERU officer effectively countermanded that order removing an opportunity for proper reconstruction of what happened, Mr MacGuill said.
There was no principal commander in place and a failure to have a handover point when it became a crime scene, he said.