Two issues of legal procedure have yet to be resolved in O Buachalla case

The two questions that remain to be answered about how Judge O Buachalla handled Catherine Nevin's application for a pub licence…

The two questions that remain to be answered about how Judge O Buachalla handled Catherine Nevin's application for a pub licence concern matters of technical, but important, legal procedure.

Was the local Garda superintendent given 48 hours' notice, as required by law? And was there something unusual, or even improper, about his hearing the application in his chambers rather than in open court?

A separate broader ethical issue is whether as a friend of Catherine Nevin he should have heard her application at all.

The reports being prepared by the District Court president, the Garda Commissioner and chief executive of the Courts Service will provide the Minister for Justice with answers to these questions. Mr O'Donoghue has said he will then issue a full statement.

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The issues at stake have been confused by the introduction of a number of irrelevant matters. The first is the suggestion, made by Fine Gael's Mr Jim Higgins and others, that the fact that Catherine Nevin had been charged with her husband's murder two months earlier should have led the judge not to grant the licence. However, the murder charge was irrelevant to the application due to the principle that an accused person is innocent until proven guilty. Lawyers and gardai agree that this was not a legitimate reason to object to the licence being granted.

A second suggestion, also made by Mr Higgins, ail, is that Judge O Buachalla had at one stage been struck off the roll of solicitors for bankruptcy, leaving a question mark over his fitness to be a judge.

In fact he was never struck off, but had his licence to practice suspended in 1973 when he became bankrupt. In 1978, when he discharged his bankruptcy, he applied successfully for the return of his practising certificate. Having once been bankrupt is no bar to subsequently being appointed to the bench. O Buachalla first indicated he would be interested in a judicial appointment he declared details of his past bankruptcy.

So neither of these issues appears relevant. The judge's future will depend on whether it is found that he was correct to hear a case involving a friend; whether gardai had the proper notice; and whether he acted correctly in deciding the case in chambers rather than in open court.

Tom Nevin was murdered on March 19th, 1996. The licence in his name and that of his wife Catherine expired in October 1996 and had not been renewed. Such an expiry is not unusual and pubs often continue to trade in such a position before the situation is regularised.

The controversy centres on the decision of Judge O Buachalla, on September 29th, 1997, to agree to an application on behalf of Catherine Nevin for a court order directing Customs and Excise to issue her with a pub licence.

Garda documentation suggests that gardai were deeply unhappy about the manner in which this order was granted, believing the statutory 48 hours' notice was not given, and that the case should have been held in open court. A statement from Judge O Buachalla attempts to suggest that nothing out of the ordinary happened.

While the tone of the Garda version and the judge's version is very different, the content of each account does not necessarily contradict the other. For example, the judge said the application for the licence was made in open court, which does not conflict with the Garda version that it was heard in the judge's chambers.

The judge says Insp Peter Finn of Gorey confirmed that gardai had no objection to the renewal of the licence. It appears that this, too, does not contradict the Garda version, which is that their objection was to the issuing of the licence in Catherine Nevin's name, rather than to its subsequent renewal.

While the judge says Insp Finn "attended all discussions in relation to this matter", he does not refer to the Garda assertion that at some of these discussions the inspector objected to the manner in which the licence was being issued to Catherine Nevin.

The Minister for Justice is said to be anxious to have the three reports on the matter by early next week to allow him to make a statement on the affair.