Two senior politicians must reveal the sources of allegations made to them about gross misconduct in the senior ranks of the Garda, the Morris tribunal ruled yesterday.
The tribunal, which is investigating alleged corruption by a number of gardaí in Co Donegal, also ordered Eircom to hand over telephone and facsimile records of the Labour Party's Mr Brendan Howlin TD and Senator Jim Higgins of Fine Gael.
Its chairman, Mr Justice Frederick Morris, said if evidence or information existed which could show the innocence of people wrongly convicted on the basis of alleged wrongdoing by gardaí, it would be "entirely wrong" for it to be withheld from the tribunal. Both politicians indicated immediately after the ruling that they would go to the High Court to challenge its order and protect their informants.
Mr Higgins and Mr Howlin had received in summer 2000 separate information alleging that an internal Garda investigation, headed by Assistant Commissioner Mr Kevin Carty into allegations of wrongdoing in the Donegal division, was "compromised".
This was because both Mr Carty and fellow Assistant Commissioner Mr Tony Hickey had allegedly worked with Det Sgt John White, one of the gardaí at the centre of the inquiry, during his service in Dublin. It was alleged that both assistant commissioners were aware that a large number of convictions were achieved by "planting evidence" and that Det Sgt White was the source of "trumped-up" evidence. It was also alleged that there was a fear among members of the investigation team that, if fully investigated, Det Sgt White would use these matters to defend himself in some way, and that in doing so the convictions of a number of persons would be proven to have been unsafe.
The two politicians relayed the allegations to the then Minister for Justice, Mr John O'Donoghue, and Assistant Garda Commissioner Mr Fachtna Murphy was asked to investigate the matter.
The Morris tribunal has sought an order for discovery and production of the phone and facsimile records against the men and also against Eircom, a move which the politicians have contested. In his ruling, Mr Justice Morris said the work of the tribunal had been "gravely hampered" by its inability to establish the identity of the politicians' informants and those supplying the informants with information or evidence.
He accepted that the men's telephone and facsimile records were private papers and privileged under Article 15 the Constitution. While he was satisfied that a power may be vested in the Dáil and Seanad Committees on Procedure and Privileges to extend privilege to private papers of members, this power had not been exercised.
Accordingly, "no case had been made out that privilege has been extended to the documents, which are the subject matter of this application", he added.
A further and more compelling reason why the politicians should not be permitted to exercise any such privilege as may exist in this case was based on the principle of the "innocence at stake exception", he added.
If innocent people had been prosecuted and convicted on the basis of unlawfully obtained evidence and perjury and had served or were serving sentences of imprisonment as a result, "it is imperative that all such information or evidence, from whatever source, be made available to the tribunal on the principle of the 'innocence at stake exception'," the judge said.
"Such privileges as may exist should yield to the opportunity which now arises in the course of this tribunal to demonstrate that innocent persons have been improperly convicted and have served or are serving sentences of imprisonment as a result, if that be the fact."
Mr Justice Morris said he had a discretion on whether he would insist on disclosure. "In the exercise of this discretion, I have no doubt whatever that it is preferable that information which is available to two responsible members of the Oireachtas from individuals believed by them to be reliable, and which indicates gross misconduct amounting to criminal misconduct on the part of two assistant commissioners of An Garda Síochána and one detective sergeant, should be made available for scrutiny and examination by the tribunal," he added.
Mr Justice Morris put a four-week stay on his order to allow Mr Howlin and Mr Higgins to seek a judicial review of the ruling in the High Court.