The Minister for Justice is free to immediately publish three more reports of the Morris tribunal investigating Garda corruption in Co Donegal as a result of a ruling of the High Court yesterday.
The president of the High Court, Mr Justice Joseph Finnegan, yesterday afternoon rejected an application by Det Sgt John White to prevent publication of the reports.
John Whelan SC, for Det Sgt White, had argued that publication would "totally negative" the effect of two jury acquittals of Det White on criminal charges, including an acquittal last week of planting a shotgun at a Travellers' camp at Burnfoot in Co Donegal and an acquittal in early 2005 on charges of perverting the course of justice and making false statements.
Mr Whelan said his side was concerned the tribunal reports may include findings that would tend to infer Det Sgt White was guilty of one or all the charges levied against him, notwithstanding the fact he was acquitted.
"Sgt White, the corrupt guard" will be the kind of newspaper headlines resulting from publication of the reports, counsel said. Publication would be "unfair and oppressive" and equivalent to saying the jury "got it wrong". The State was trying to "push out" the reports and negative the good effect of his client's acquittals.
Any good effect of the acquittals will be set at nought if the tribunal reports say or infer he is guilty, Mr Whelan said. It would also set at nought the whole criminal justice process here and breach Det Sgt White's rights to good name, reputation and character. Mr Whelan argued the court did have jurisdiction, under provisions of the Tribunals of Inquiry Evidence Acts, to halt publication.
However, lawyers for the Minister for Justice, the DPP and the Attorney General took the view there was no longer any bar to publication of the report as the criminal proceedings involving Det Sgt White had concluded.
Micheal P O'Higgins, for the AG, said Sgt White was always aware the tribunal's investigation was continuing and he could not have been under any misapprehension that the criminal proceedings "would be the end of the matter".
Fergal Foley, for the Minister, said Det Sgt White could have applied in different proceedings for an injunction prohibiting publication but had not done so. Rather, he was trying to use the "narrow ambit" of the court's jurisdiction under the Tribunals of Inquiry Evidence Acts to restrain publication.
The court should direct publication, which was what the Minister had always intended, and allow the reports to go into the public domain, counsel said.
After considering the submissions, Mr Justice Finnegan said he would direct publication of the reports and refused to grant a stay on that order until 4.30pm yesterday to allow Det Sgt White's side consider whether to bring an appeal to the Supreme Court. He took the view he had no jurisdiction to impose any such stay. However, he said, in all the circumstances, he would grant costs of the application to Det Sgt White.
Explaining the reasons for his decision, the judge said he had a discrete statutory function in the matter and it was not proper to embark on any other jurisdiction such as suggested by Det Sgt White's side. He had earlier this year granted an interim order restraining publication of the reports because of the criminal proceedings pending at the time against Det Sgt White, the judge added. He was now being asked to lift that order on grounds that the criminal proceedings had concluded.
When construing the Tribunals of Inquiry Evidence Acts, he took the view he should have regard to the general scheme of the Acts, which required the courts to be in favour of openness and not secrecy.
Section 3 of the 2002 Act provided that the Minister for Justice, where he considered publication of any tribunal report might prejudice any criminal proceedings, could apply to the court for directions. The Minister had earlier this year made such an application to restrain publication on the basis of criminal proceedings then in being.
However, there was now no question of any criminal proceedings being prejudiced and it seemed he had no power to continue suspension of publication, the judge said. While an appeal to another court could result in a different outcome, he considered he had specific jurisdiction in the matter for a discrete purpose which no longer existed.
