The Barr tribunal could continue its work, even if the legal representatives of the Garda Síochána withdraw from it, writes Carol Coulter, Legal Affairs Correspondent.
The withdrawal of the legal representatives of the Garda Síochána from the Barr tribunal would be a blow to the tribunal, but not a fatal one, according to legal sources.
The presence of legal representatives of the witnesses called before a tribunal is usual, but not essential.
Such witnesses are normally granted the right to legal representation, but it is up to them whether or not to exercise that right. If they are legally adult, and in full possession of their faculties, legal representation cannot be imposed on them, and if they choose not to have it this is a entirely a matter for them, according to one senior legal source. So if the solicitor for the Garda Síochána, Mr Tom Murphy, tells the tribunal today that he and his counsel are withdrawing from the tribunal, leaving members of the Garda Síochána unrepresented, the tribunal can, and Mr Justice Barr has indicated it will, continue.
In a court case (which the tribunal is not), if a party has no legal representation, or withdraws his or her legal representation, the judge then has a responsibility to protect this party's interests as best he can. Even though the tribunal is not a court, the chairman will have a similar responsibility as it continues. However, the shadow of a possible judicial review of its conclusions will lie over the tribunal. The lack of representation in itself is not grounds for a judicial review.
But if the final report from the tribunal is critical of the Garda Síochána, or of members of the force, it is likely that their legal representatives will pore over the transcripts to see if there are grounds there for judicial review.
They could allege bias against the chairman and sole member of the tribunal, Mr Justice Barr, if they find anything in the transcripts to suggest that he had made up his mind before hearing the evidence. It is not uncommon, as another barrister pointed out, for the judge in a court case or a tribunal chairman to ask a witness questions that might appear biased, but, it is then argued, were intended to explore a line of argument.
When tribunals have been challenged in the courts, the courts have granted a wide "margin of appreciation" to the chairman to conduct the inquiry as he sees fit. "The courts have been loath to interfere in a process initiated by the legislature, because of the separation of powers," said an expert in tribunal law.
"Also tribunals are only fact-finding. There are no legal consequences for those appearing as witnesses before them. This was all spelt out in the Goodman case. There is a general reluctance to start interfering in a tribunal."
However, this expert continued, there must come a point when the requirement on a tribunal chairman to act judicially, and the constitutional rights of those before him, in particular the right to natural justice, must be upheld if there is any question they have not been.
If they are planning a judicial review, lawyers for the Garda Síochána will be closely examining the transcripts of the tribunal to see if they can make a compelling case that their clients' rights were infringed.