Mr John Rogers SC, opening the case for the 36 gardai, said the shooting of Mr Carthy was "a most tragic thing" over which his clients had already expressed deep regret. They had addressed themselves, insofar as had been possible, to Mr Carthy's family.
After the death, the Garda Commissioner had reported to the Minister for Justice. This report had been referred by the Dail in October 2000 to the Joint Oireachtas Committee. No complaint had been made to the Garda Complaints Board. This left the gardai in a position where a number of important steps had been taken, but without any sense that blame was to be directed at the gardai.
Counsel said Mr Carthy was shot by two ERU members, and no complaint had been made against those men. However, during the subcommittee inquiry, questions which carried very definite implications were asked of witnesses.
The Garda Commissioner had been asked by Mr Alan Shatter TD in live proceedings on TG4 very searching questions about the actions of the ERU members, including questions about whether the last shot fired was necessary.
These were questions about culpability on their part which had the most serious implications and left an indelible mark on members of the subcommittee and the public. As their counsel, he had not been notified of the intention to ask such questions and had been given no opportunity to cross-examine.
Despite submissions on fair procedures, the subcommittee had seemed to insist on proceeding with a process which left his clients at an unfair disadvantage. It had indicated that the role of lawyers was to be limited and that a facility to cross-examine would be offered only after evidence was taken.
The subcommittee had also begun its work by hearing from senior Garda officers before establishing the basic facts of the incident.
The case raised issues about the compellability of persons to answer questions in a forum of elected TDs and senators where their answers would give rise to findings of fact and expressions of opinion which might be adverse to individual citizens.
The Dail and Seanad had no power to conduct an inquiry which would lead to such a result. No such power was set out in Article 15 of the Constitution, which accorded to the Dail and Seanad, and President, the exclusive power of making laws. Such a power had to be taken through the enactment of laws, and this had been done in the Tribunals of Inquiry (Evidence) Act, 1921.
Counsel contended that the subcommittee, consisting as it did of six TDs and a senator, could not conduct an impartial inquiry. The inherent nature of being an elected representative undermined completely the concept of independence.
The Joint Committee had purported to authorise the subcommittee to report on the Garda Commissioner's report to the Minister for Justice. The order establishing the subcommittee had been amended later to extend its terms of reference but, counsel contended, this amendment was inadmissible.
Astoundingly, Mr Rogers said, when the subcommittee began hearings on April 24th, it did not have the required consent of the "compellability" sub-committee of the Committee on Procedures and Privileges to direct attendance of witnesses and production of documents.
On April 27th, despite questions, nothing had been made available to source the sub-committee's jurisdiction regarding the inquiry other than a bland statement that the body was satisfied that it was entitled to continue.