McBrearty jr arrest may have been illegal - Tribunal counsel

The gardaí may have used an allegation of assault against Mr Frank McBrearty jnr to question him illegally over the death of Richie Barron, the Morris tribunal heard today.

The tribunal was told that Mr Eddie Moss, from Castlederg, Co Tyrone claimed he was attacked by three men in Frankie's, Mr McBrearty's snr's nightclub in Raphoe, in December 1996.

Mr Peter Charleton SC, for the tribunal, said Mr McBrearty jnr was prosecuted over the alleged assault but cleared of all charges. Mr McBrearty claims he was "assaulted, videotaped and otherwise improperly treated" while in Garda custody, he said.

Two other men, Mr Liam O'Donnell and Mr Martin McCallion, were also tried and acquitted. Mr McCallion was arrested in December 1996 over the death of Mr Barron, the tribunal heard.

Mr Moss said he was in the club with his girlfriend and two others on December 30th, 1996. One of the party, Mrs Teresa Harper, became weak and slumped to the floor. Mr Moss said Mr McBrearty came over, saying he knew first aid. Rather than helping, he was rough with the ill woman and told the party to get out, Mr Moss said. There was a fracas, in which Mr Moss said he was grabbed around the throat, punched and thrown out by three men. He suffered a fractured ankle in the incident.

Mr Moss said he was visited at home by Mr McBrearty snr and a woman a week after the alleged assault. They asked him not to pursue the matter and he later received £15,000 in cash from Mr McBrearty snr, he said. There is no official record of this, Mr Charleton commented.

Mr Moss then instructed his solicitor to inform the gardaí in Letterkenny that he longer wished to press charges.

However, Mr Charleton said the gardaí arrested, questioned and prosecuted Mr McBrearty jnr despite the letter from Mr Moss. Mr Charleton said he was obliged, under the Terms of Reference of the tribunal, to investigate whether or not detectives were merely using the complaint as a pretext to arrest Mr McBrearty and question him further over the death of Mr Barron.

"Such an arrest, if made in bad faith, and a detention procured or granted in bad faith, would be regarded as unlawful," he said.

Mr McBrearty's alleged mistreatment while in custody would also be investigated, Mr Charleton said.