An Oireachtas subcommittee has no power to investigate the shooting dead of Mr John Carthy in Abbeylara, Co Longford, and elected representatives were not sufficiently independent to conduct such an inquiry, the High Court was told yesterday.
Mr John Rogers SC, representing 36 gardai who have challenged the subcommittee inquiry, said the case was one of the most important to come before the courts. The court was being asked to balance and measure the powers of the Dail and Seanad regarding the rights of individual citizens in circumstances where the Oireachtas resolved to hold an inquiry which might lead to findings of fact which were adverse to citizens.
While the subcommittee was only entitled to examine the Garda Commissioner's report on the shooting of Mr Carthy, it had instead embarked on a broad-ranging inquiry into the incident itself in which the issue of how Mr Carthy died was "absolutely live", Mr Rogers said. The subcommittee had sought to inquire into whether the last shot fired at Mr Carthy - the fatal shot - should have been fired.
It also proposed to call 57 witnesses, including the two members of the Garda Emergency Response Unit who fired the four shots at Mr Carthy, counsel added. One of those members had been given just days to go before the inquiry to answer questions.
It appeared that the subcommittee proposed to ask the State Pathologist, Dr John Harbison, questions regarding how Mr Carthy was shot. The subcommittee had set out a template for the most broad-ranging and complete inquiry, including issues regarding the reasonableness of the actions of the gardai.
Mr Rogers argued that there was no power to hold such an inquiry. If the Dail and Seanad wanted such powers, they had to enact laws to that effect. The extent to which such laws might survive a legal challenge was another issue.
The gardai were not seeking to evade accounting and had said from the outset that they wanted a tribunal of inquiry. But they claimed their rights and reputations were at risk as a result of the unlawful manner in which the inquiry was being conducted.
Counsel was opening the challenge by the 36 gardai to the inquiry by the seven-member subcommittee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights.
The action, which is expected to last two weeks, is being heard by a divisional High Court comprising the President of the High Court, Mr Justice Morris, Miss Justice Carroll and Mr Justice Kelly.
Last April, nine gardai indicated that they intended to apply to be exempted from appearing before the subcommittee, which was established in March following the death of Mr Carthy on April 24th, 2000.
Mr Carthy was shot four times by members of the ERU after a siege at his home. In May, the judicial review proceedings, in which virtually all aspects of the inquiry's work are challenged, were taken.
The hearing continues today.
