Claims that gardaí destroyed faxes informing them of the existence of a High Court order restraining them from deporting six Nigerians on April 6th "may have been unduly harsh", the High Court was told yesterday.
The claim had been made in sworn written evidence presented earlier to Mr Justice Peart who was hearing an application on behalf of the six for their return to Ireland.
They had been flown from Dublin Airport in a midnight charter to Lagos on April 6th, between half an hour and an hour after another High Court judge, Mr Justice Gilligan, had issued orders restraining their deportation and directing their production in court the following morning.
The faxes were sent to the Garda National Immigration Bureau immediately after Judge Gilligan made his orders, but had not been seen by immigration staff until between 8 a.m. and 9 a.m. on April 7th. When the Nigerians' legal team later sought discovery copies of the faxes and were told they could not be found, it alleged in sworn affidavits to the court that they had been destroyed.
Mr Michael Forde SC, who appeared with Mr Kieran Kelly for the six, told Mr Justice Peart yesterday that solicitors for the applicants had yesterday written to the Chief State Solicitor over the matter. The letter said that in light of evidence tendered to the High Court on Thursday, it would appear many of the questions raised earlier in correspondence by the six had a very simple answer.
"It is unfortunate that our correspondence and requests went unanswered and that we were not appraised of those answers before now," the letter, read out in court yesterday, said.
"If we had, it probably would have rendered it unnecessary to bring a host of witnesses to court in order to be cross-examined. Indeed, had your counsel not repudiated our counsel's suggestion for a modicum of case management last April/May, your client [the Garda Commissioner\] would not be in the embarrassing position in which he has been put."
The letter also said: "In view of what has now eventually emerged in evidence and the explanation proffered for the inaction of the Commissioner, the allegation we made on affidavit of destroying faxes may have been unduly harsh."
Mr Justice Peart had earlier heard proceedings in which lawyers for the six sought to have the Commissioner imprisoned for contempt in that he failed, and still fails, to act on existing orders granted by Judge Gilligan.
Judge Peart has reserved his judgment on the contempt issue and on the application to have the six Nigerians returned to Ireland by the State, so that they may challenge the legality of their deportation.
The court has been told they cannot return while the deportation orders remain and cannot challenge their legality while out of the country.
Mr Patrick McCarthy SC, who appeared with Ms Siobhán Stack, for the Garda Commissioner and the State, told the court yesterday there had been no "bad faith" on the part of the Garda National Immigration Bureau in the deportation of the six. He said Judge Gilligan's orders of April 6th had not been served on the bureau before the departure of the plane on which the six applicants were deported.