TWO members of the Garda Drug Squad were ordered by the President of the High Court, Mr Justice "Costello, yesterday to name the person whose information led to a search of Sachs Hotel, Dublin, and the home of a hotel employee.
Mr Justice Costello also ordered Det Gardai Colm Church and Raymond Murray to pay the costs of an action they brought against the Garda Commissioner.
He did not think they had acted reasonably in refusing to obey the order of their superiors. Both men failed in their claim that they should not be compelled to name an informant.
Mr Justice Costello in a reserved judgment said that on September 12th, 1988, the two men carried out a search of Sachs Hotel, Morehampton Road, and the home of a hotel employee, Ms Brenda Flood, at Sycamore Drive, Cabinteely, Dublin. No drugs were found at either premises.
The search was made under a warrant issued following confidential information which the gardai obtained from an informant. The hotel owner, Mr Philip Smyth, had telephoned Garda Church saying the information given to the gardai was malicious and asking for the name of the informant. Garda Church refused.
Later in August 1991 proceedings had been instituted by Genport Ltd (the company which operates Sachs Hotel) and Ms Flood against the two gardai.
Mr Justice Costello said that three days after the search Garda Church had written in a Garda record that the information he had received might have been given in an attempt to discredit Mr Smyth and Ms Flood.
The investigation ordered afterwards was to see whether or not a crime had been committed by the malicious giving of false information to the gardai.
In March 1991 a solicitor for Mr Smyth had written to the Commissioner that new information was now available to the effect that the details given to the gardai had been given maliciously.
In June 1992 the Commissioner directed that a chief superintendent carry out a further investigation. Both gardai refused to name their informant.
Mr Justice Costello referred to a circular issued in 1293 by the Commissioner, Intelligence Gathering and Reporting. Garda Church had claimed that had it been in force in 1988 (when the searches took place) he could have been obliged to reveal the informant's identity.
The Commissioner made an order in December 1993 requiring both gardai to disclose to a chief Superintendent the identity of the informant. This order, Mr Justice Costello said, was at the centre of this case.
The order said: "While this information may have been received in good faith there are circumstances to indicate that it may have been supplied for malicious motives.
"The Director of Public Prosecutions has been consulted in relation to this matter and has decided that a prosecution for an offence against you should not be instituted.
"This information is required by me in order to ensure proper direction and control of the Force and, in particular, the proper investigation of alleged public mischief by a person or persons unknown.
"Failure or refusal by you to supply this information on or before January 11th, 1994, will be considered by me to be of such gravity as to merit seeking your dismissal from the Force ...
Solicitors for the two men had written to the Commissioner that the information received in confidence from an informant must remain privileged unless disclosure was ordered by the High Court.
Mr Justice Costello said the detectives claimed the Commissioner exceeded his powers when he made the order of December 1993, and that he had no legal power to direct them to disclose the name of the informant and that if they were wrong they would obey the order of the court.
Relevant to this issue, said the judge, and the attitude of the two gardai was the Manual of Crime Investigation Techniques which contained guidelines for members of the Garda issued by the Commissioner in 1979. It stated that to disclose the name of an informant was a breach of faith.
Mr Justice Costello said he was quite satisfied the two men had wrongly construed this manual. It was not a legal textbook, only a guideline, and did not purport to interpret law. Above all it did not entitle a garda to disobey an order from a superior or ignore an official circular.
Mr Justice Costello held that the 1993 circular had clarified the situation. The Police Forces Amalgamation Act, 1925, conferred power on the Commissioner to issue the 1993 order.
The judge referred to a claim on behalf of the two gardai that when they got the information in 1988 they were under no duty to disclose the informant's name and that the 1993 order could not retrospectively require them to give that information.
Mr Justice Costello said he could not agree with this claim. In 1988 they were required to obey legitimate orders. He made an order that the Commissioner's order of December 24th, 1993, was legally valid and that the two gardai were obliged to obey it.