A High Court judge asked yesterday why the State had maintained, in its defence in an action alleging unlawful arrest of a retired garda and a woman on suspicion of IRA membership, that the arrests were grounded on the reasonable suspicion of a Garda detective inspector when that same Garda officer had told the State years earlier he had not personally held that suspicion.
The taxpayer is now facing a legal and damages bill of more than €1,275,000 arising from the action taken by retired garda Mr Joe Walshe and Ms Kay Bedford following what the High Court found was their unlawful arrests on September 27th, 1991, in Limerick under section 30 of the Offences Against the State Act and detention for three days on suspicion of IRA membership.
Mr Justice Quirke was told by Mr Rory McCabe SC, for Det Insp Anthony Fennessy, that in 1991, the then Chief Supt Patrick Byrne, later Garda Commissioner, had directed Det Insp Fennessy to arrest Mr Walshe and Ms Bedford without giving any explanation.
"We still don't know why they were arrested," Mr McCabe said. He said Det Insp Fennessy's solicitors had written seeking to have Mr Byrne and the Assistant Garda Commissioner, Mr Kevin Carthy, appear as witnesses in the action by Mr Walshe and Ms Bedford, but they had received no replies.
Legal proceedings were initiated in 1991 by Mr Walshe and Ms Bedford against Det Insp Fennessy, the Minister for Justice and the Attorney General.
Last May, a High Court jury awarded damages totalling €275,000 to the plaintiffs after Mr Justice Quirke held their arrests were unlawful.
Mr Walshe (61), Oaklawn Drive, Dromin, Nenagh, Co Tipperary, was awarded €175,000 and Ms Bedford (58), Sir Harry's Mall, Limerick, was awarded €100,000. During the trial, the defendants accepted neither plaintiff had any connection with the IRA.
Costs estimated at more than €1 million were also awarded to the plaintiffs against the defendants. Det Insp Fennessy then applied to be indemnified against the costs.
Yesterday, granting that indemnity, Mr Justice Quirke held the detective inspector was "perfectly entitled" to have decided he needed separate legal representation in the matter and was therefore entitled to indemnity.
The judge was told that when given a draft defence in September 1992 which included the plea that he had had the reasonable suspicion referred to, Det Insp Fennessy had replied saying he agreed with that draft defence and a defence with that plea was duly delivered by the State in January 1993.
However, at a consultation with State lawyers in May 1998, Det Insp Fennessy had expressed concerns that he did not personally have that reasonable suspicion. He had said that when arresting Mr Walshe, he was acting on the direction of then Chief Supt Patrick Byrne.
Despite the concerns expressed by Det Insp Fennessy, the State defence, which remained the defence throughout the trial before the High Court, was that the detective inspector had had such a reasonable suspicion, Mr McCabe said.
He added that solicitors for Mr Walshe had indicated in an open letter to the State solicitors in 1998, five years before the trial, that Mr Walshe would not pursue the matter further if it was declared there was no basis for his arrest on suspicion of IRA membership.
Mr Shane Murphy SC, for the State, had argued that Det Insp Fennessy should pay his own legal costs in that he had chosen to secure separate legal representation for himself. He added that Det Insp Fennessy was told by his superiors that he risked substantial costs if he chose to get his own legal representation.