The Supreme Court has cleared the way for the Morris tribunal to proceed with a private inquiry into the circumstances surrounding the arrest and detention of seven people at Burnfoot, Co Donegal, in May 1998.
The three-judge court yesterday rejected an application by Det Sgt John White to place a stay on the Burnfoot module of the inquiry to allow him an opportunity to bring High Court proceedings aimed at deferring that module, pending the outcome of criminal proceedings against him.
Det Sgt White, with an address at Ballybofey, Co Donegal, had claimed that the private hearing now of the Burnfoot module would prejudice his entitlement to a fair trial on a charge, imposed against him in December 2001, of planting a firearm at a Travellers' camp at Burnfoot in May 1998.
A date for that criminal trial has not yet been fixed because the outcome is awaited of separate High Court proceedings (heard last June with judgment reserved) in which Det Sgt White sought an order prohibiting the trial.
At the Supreme Court yesterday John Whelan SC, for Det Sgt White, argued the tribunal would be dealing with the same matters as would arise in the criminal case and would effectively afford the prosecution a "dry run" of the criminal prosecution against him, prejudicing his right to silence and to cross-examine witnesses.
Michael Collins SC, for the tribunal, rejected those claims and said Det Sgt White was effectively arguing for "a utopian model of forensic perfection".
Giving the court's decision, Mr Justice Adrian Hardiman said Det Sgt White had not established that there was a real risk of an unfair trial on the criminal charge.
He said Det Sgt White's complaint was that whatever safeguards might be put in place, the prosecution at his criminal trial would gain a significant tactical advantage by virtue of the Burnfoot module proceeding before that trial.
It was argued that the prosecution would know, from Det Sgt White's evidence to the tribunal, the nature of his defence and would be able to "fine-tune" its case on the basis of this dry run. The complaint was essentially one of tactical disadvantage to Det Sgt White.
Mr Justice Hardiman said any findings by the tribunal would not be binding on Det Sgt White and nothing he said at the tribunal could be used against him in the criminal case.
He also noted a previous Supreme Court decision to the effect that the courts should not assist any party in relation to an issue of tactical advantage and that issue was not for the court.
He added that the court would also observe that any court or tribunal has discretion to defer its proceedings if there is a question of specific prejudice to the integrity of a criminal trial and if there is a real, not just a notional, danger of an unfair trial.
In this case there appeared to be no real or substantial danger to the integrity of the criminal trial, he said. The main prosecution witness in the case had made a statement which was furnished to Det Sgt White who in turn had also given a detailed reply.
Mr Justice Hardiman said the court further noted that statutory measures were introduced in 2002 which permitted, in certain circumstances, a tribunal to proceed with inquiries into matters which were also the subject of criminal proceedings.
There was no substance in Det Sgt White's argument that those provisions might not apply to his case.
The judge said the tribunal was inquiring into matters of great importance dating back to 1998, and it was desirable in the public interest that it should proceed.
On those grounds the court rejected Det Sgt White's application and awarded costs against him.
