Editorial: Explosive allegations concerning senior gardaí must be investigated

There is an important and pressing public interest in the Morris Tribunal investigating allegations made by an unnamed Garda concerning two very senior gardaí, Assistant Commissioner Kevin Carty and Assistant Commissioner Tony Hickey (now retired). The allegations were contained in a document sent to two TDs, Brendan Howlin and Jim Higgins – the document was attached to a Supreme Court judgment on 20 December, concerning the claim by the two parliamentarians of parliamentary privilege.

The allegations, as contained in the document attached to the Supreme Court judgment, are that "Detective Sergeant (John) White worked with both Mr Carty and Assistant Commissioner Tony Hickey during his service in Dublin and whenever evidence had to be got to prove a case beyond doubt, Sergeant White was the man who was given the job of producing the said evidence by unlawful means."

It is claimed that "a large number of convictions were achieved by 'planting' evidence and both (Assistant Commissioner) Carty and (Assistant Commissioner) Hickey were aware that White was the source of the 'trumped up' evidence."

The document, which we reproduce fully elsewhere in this issue of Village, claims: "Another matter which White was involved in was the planting of stolen property on suspects and as result of this he had a huge amount of stolen property at his disposal". It further claims: "It is known that White is in regular contact with Assistant Commissioner Hickey and has an eighteen page document concerning his and others activities whilst he was stationed in Dublin and this document, it appears, is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation (that was an investigation then underway under Assistant Commissioner Carty into allegations of gross misconduct on the part of gardaí in Donegal)".

These allegations were made orally and in writing by the unnamed garda to Brendan Howlin TD and Jim Higgins TD on 25 June 2000. The terms of reference of the Morris Tribunal specifically include reference to this matter and require the Tribunal to enquire into the allegations the document contains.

In order to get such investigation under way, the Morris Tribunal required Brendan Howlin and Jim Higgins to disclose their source of this information and to name the Garda responsible for communicating this to them. Both TDs (as they then were – Jim Higgins is now a Senator and MEP) refused to disclose this information and refused to make available their telephone records to enable the Tribunal to identify the sources itself.

The Morris Tribunal ordered them to make these disclosures and discovery and they applied to the High Court seeking to overturn the order of the Tribunal. The High Court granted them an injunction quashing the order of the Tribunal. The Supreme Court has now overturned that and upheld the order of the Tribunal.

The basis on which Brendan Howlin and Jim Higgins have claimed they cannot be required to disclose this information to the Tribunal is what is known as Dáil privilege. The Supreme Court, quite rightly, found that the absolute privilege conferred on "utterances in the Oireachtas" should be considered very narrowly, in view of the ramifications this has in terms of the reputation rights of citizens and other consequences. It has further found that any claim of privilege under Article 15.10, which allows the Dáil to "protect its official documents and the private papers of its members" must also be construed narrowly. The Supreme Court has held that such protection arises only when the Dáil specifically and explicitly confers such protection, which, ineptly, it did not do so in this instance.

This places Brendan Howlin and Jim Higgins in a difficult situation because, presumably, they gave promises of confidentiality to their sources. But such promises cannot override the public interest and in this instance there is clearly a public interest in having the very serious allegations made thoroughly examined. There is also an obligation on Brendan Howlin and Jim Higgins, all the more so as parliamentarians, to comply with the orders of the courts.

They will argue there is an overriding public interest here: that citizens should be free to communicate sensitive information to their public representatives in the knowledge that by doing so their identities will not be disclosed unless they agree to the disclosure. There is merit in this argument, but surely it is not contended this argument could suffice in all circumstances? For instance, if information concerning the operation of a paedophile ring came to the attention of a TD, would it not be absurd for the TD to claim there was some overriding public interest that justified him/her from refusing to disclose information vitally necessary to the investigation of the allegation?

There are exceptional circumstances where TDs (and journalists) should break confidentiality and one of these such circumstances now obtains.

It is crucial that the information contained in this document be thoroughly investigated. Brendan Howlin and Jim Higgins have already done a very considerable public service in exposing the scandal of Garda conduct in Donegal, they have also, rightly tested the law related to the non-disclosure by them of the information being sought. They should now comply with the orders of the courts and of the Tribunal.

vincent browne