The McBrearty family of Raphoe, Co Donegal, who claim certain gardaí subjected them to a campaign of harassment and intimidation "reminiscent of the activities of the Black and Tans," have secured High Court permission to challenge the refusal of the chairman of the Morris tribunal to direct ongoing funding for their lawyers at tribunal hearings.
Mr Justice Peart granted Mr Frank McBrearty snr, a publican and night-club owner, leave to apply, in judicial review proceedings, for various orders and declarations, including a declaration that the refusal of the tribunal chairman, Mr Justice Morris, to provide them with legal assistance breached their constitutional rights and represented a failure to vindicate their good name.
Mr Martin Giblin SC, for Mr McBrearty, said that in 1996 certain gardaí and criminal elements in Co Donegal conspired to implicate his client's son and nephew in the suspicious death of a local man, Mr Richie Barron.
An investigation was directed to achieve that conviction, and three confessions were brought into existence, manufactured by members of the Garda force, he said. Two of those confessions had vanished into thin air, and a third remained in existence.
When it was discovered that members of the McBrearty family had no involvement in Mr Barron's death one of two things happened. Either the Garda authorities were suddenly inspired to acquire extraordinary interest in the enforcement of the licensing laws in the village of Raphoe, or else they set out to silence the McBrearty family from asserting their innocence, which had now been established beyond doubt.
The family were subjected to "a campaign reminiscent of the activities of the Black and Tans", Mr Giblin said. Efforts were made by the family to put a stop to the campaign. They applied to every court in the land, to the State, the Minister for Justice and the Garda Complaints Board.
All their complaints were ignored.
The State was put on full notice at the end of 1997 of what was being done to the family, but there was no emanation of the State lifting a finger to stop what was going on, and the Black and Tan activities continued for several more years, counsel added.
Now the Morris tribunal had been set up to inquire into the matter, and Mr McBrearty had sought funding for his legal representatives. The tribunal chairman had taken the view that the Tribunals Inquiry Act, 1921, deprived him of jurisdiction to give funding for legal representation on an ongoing basis. Mr McBrearty's application for the State to fund his legal representatives had been refused.
The McBreartys now found themselves in the extraordinary position that the persons who had tried to implicate them in a suspicious death had legal representation which was fully funded, while they had not.
The tribunal was expected to last a very long time. Mr McBrearty and his family had been in effect bankrupted by their efforts to protect themselves from the conspiracy and were unable to discharge the legal fees which had accumulated over six years.
Mr Giblin said the family were entitled to ongoing funding so that there could be a level playing pitch between them and their accusers. It was a "monstrous injustice" to force them into a tribunal where they were legally obliged to give evidence and where they would be subjected to a hostile examination from counsel representing policemen who had tried to frame them for murder, he said.
The legislation governing tribunals was the same here as in Britain, Mr Giblin said. The Bloody Sunday inquiry was operating under the same 1921 Act, and the British government had introduced an informal system where costs were paid on an ongoing basis.
Mr Giblin said the gardaí who had set out to "destroy" the McBreartys would be fully funded. The State, on the other hand, stood accused of failing to protect the McBreartys.