The chairman of the Barr tribunal yesterday told gardaí involved in the Abbeylara siege that it was not possible to walk away from the tribunal even if they had no legal representation. Christine Newman reports.
Mr Justice Barr said the tribunal would continue today whether gardaí decided to be legally represented or not. "It is not possible to walk away from the tribunal of inquiry if you have, if the tribunal believes, a relevant pertinent contribution to make," the chairman said.
If they were not represented, the tribunal would probably require some gardaí to appear from time to time by way of witness summons. The chairman said there had been too much delay, which had cost time to the tribunal and expense to the State. He was referring to events before Christmas when he and Mr John Rogers SC, for An Garda Síochána, clashed, with counsel withdrawing from the tribunal.
Yesterday Mr Justice Barr opened the new session with a statement in which he said Mr Rogers may have made certain comments and submissions, leading to the clashes and his withdrawal, "in the heat of the moment".
Afterwards, the chairman "reluctantly" granted an adjournment until this morning to Mr Tom Murphy, solicitor to the gardaí, to allow him to consult with his clients.
A total of 35 members of An Garda Síochána were at the tribunal, including Assistant Commissioner Mr Tony Hickey, ERU members and local gardaí, to hear the chairman's statement.
Mr Rogers stood down in December during evidence by the State Pathologist, Prof John Harbison, when the possibility of Mr John Carthy being hit by a fifth shot arose.
Yesterday the chairman said that on December 18th Prof Harbison referred to a calf wound received by Mr Carthy. When he asked Prof Harbison if there could have been a fifth bullet fired by a non-ERU officer, Mr Rogers accused the chairman of leading evidence and said it was "entirely outrageous" for him to say it. Mr Rogers also said it was an "outrageous suggestion" when the chairman replied he had to discover whether local gardaí were telling the truth.
"On reflection, I hope that allegations against me of 'entirely outrageous comments' were made in the heat of the moment and perhaps I may have been wrong in interpreting them as attempted bullying by counsel," he said.
In December, he said, Mr Rogers appeared to contend that the chairman was bound by procedure to leave tribunal counsel to ask all questions on his behalf and he should not make his own intervention. There was nothing in the tribunal's procedures or otherwise which precluded him from questioning witnesses as they gave testimony on any matter which he thought required clarification or elaboration, he said.
"I regard Mr Rogers's submission and advice as ill-founded and having no reasonable justification. However, it occurs to me that it also may have been an observation made by him in the heat of the moment or he may not have been fully cognisant of all relevant facts," he said.
Mr Justice Barr said he understood but was disturbed by concern expressed by Mr Murphy [solicitor to the gardaí\] and his clients. It was difficult for lay people to understand fully the implications of perceived technical difficulties raised by counsel.
"Some such submissions may be well founded; some, though held not to be well founded may be properly and justifiably brought by counsel; others may not only be unfounded but have no sustainable basis and amount to an unwarranted interference in the working of the tribunal and the source of unnecessary trouble and delay. I regarded the submissions made by Mr Rogers on December 18th as being all in the latter category and were so treated by me," he said.
Mr Rogers's remarks about outrageous suggestions may have been made by him in the heat of the moment, he said.
On the advice given to him by Mr Rogers about leaving counsel for the tribunal to examine witnesses, the chairman said: "On reflection, I have stated already that perhaps that submission also was not intended by him to be offensive and that it may have been made in the heat of the moment. As already stated, I am willing to construe it that way."
He wanted to make clear that his response to Mr Rogers did not imply any criticism of his clients. It was fundamentally important that they, and all others concerned, should receive a careful and entirely impartial response from him.
In summary, he said he recognised he may have been unfair in concluding that Mr Rogers's conduct appeared to have amounted to attempted bullying tactics, for whatever motive, and that his behaviour was out of kilter with other counsel at the tribunal. "If I was wrong in harbouring and expressing such thoughts, then I regret having done so," he said.