Vincent Browne at the Morris Tribunal says Frank McBrearty Snr is being treated unjustly for the second time.
Mr Justice Frederick Morris told Frank McBrearty yesterday morning at the tribunal in a back lane of an ugly office park in Clonskeagh: "I have a function to warn you".
"You can warn away," said Frank McBrearty.
"There are consequences from you refusing to be cross-examined. It may be that the DPP will consider you are declining to give assistance to the tribunal."
Frank McBrearty was already leaving the witness stand. As the chairman continued, he (McBrearty) was throwing papers into a cardboard box angrily. "I will never be back in these buildings," Frank McBrearty said. He walked out defiantly.
Previously he had read a statement in which he accused the garda whom he had identified as his main persecutor. He said this garda had lied, lied, lied. And he asked why that garda would go to such lengths to accuse him falsely of involvement in the murder of Richie Barron on October 14th, 1996, outside Raphoe.
He said: "I or my family have not been treated with fairness or a level playing field in this place [the tribunal]. You know that well, sir [addressing the chairman], and everyone here knows that, but I can assure this tribunal without promise or threat that before the day that I die I will get the honest and fair justice that I have fought for, for the past 8½ years and that every citizen of this State is entitled to, under the Constitution of Ireland."
He went on to plead again for his legal costs to be paid. He said the gardaí who had terrorised him had had their legal costs paid, the Garda Síochána as a whole had had their costs paid, the tribunal had had its legal costs paid. Why shouldn't he, the victim of the circumstances being inquired into, have his costs paid, too?
Judge Morris explained for maybe the fourth time that he had no power to order the payment of Frank McBrearty's legal costs (that is, until the module has been concluded). He said this opinion had been confirmed by the High Court. Nor did he (Morris) have any function in applying to the Minister for Justice to have Frank McBrearty's legal costs paid. There was nothing he could do.
Frank McBrearty said he was massively disadvantaged by this. He was being denied the opportunity to cross-examine witnesses in a thorough and professional way. He had no legal training, no experience with tribunals or courts, he could not do it himself. He referred to a recent judgment of the European Court of Human Rights, the McDonald's case, where the court had decided there was a right to equality of legal representation.
Judge Morris said he believed the tribunal had offered Frank McBrearty every assistance. Frank McBrearty was having none of it. He left, saying he would go to jail if necessary.
Before getting into the terrible injustice there is at the heart of this, let me acknowledge that Judge Morris indeed has done everything he could to assist Frank McBrearty and his family. He even took the liberty of approaching the chairman of the Bar Council, Hugh Mohan, to inquire if barristers could be found to represent the McBrearty family and await payment until the outcome of the module was completed. This merely inflamed Frank McBrearty further.
He wanted the solicitor and barrister who represented him in this scandal from the beginning to remain involved in his case, and these are unable to continue to represent him unless they are paid as they go along, and the McBreartys cannot afford that. Another legal team could get up to speed on the case, with difficulty, but the McBreartys want the team they have been with throughout this ordeal.
Michael McDowell says he will not create a precedent in guaranteeing a witness their legal costs in advance of the hearings of a tribunal. His point, I assume, is that if he did so and it were subsequently the case that these witnesses had lied to the tribunal, had withheld co-operation, concealed documents and other evidence, what then?
Michael McDowell misses the point. The McBreartys were treated shamefully by members of the Garda Síochána. They were wrongly accused of the murder of Richie Barron, they were harassed, tormented, reviled and defamed by gardaí, agents of the State. It is no longer an issue whether the McBreartys were treated shamefully or not by the Garda Síochána. The only issue that the tribunal has to inquire into is who in the Garda was responsible for this treatment.
Inevitably in the course of the tribunal's inquiries the reputation of the McBrearty family will be at stake from time to time. They clearly have a right to the protection of their good name in the course of proceedings established to determine why they were so shamefully treated.
What precedent would be established were the McBreartys to be guaranteed their legal costs and paid as they went along?
The State has done enough damage to this family. Now is the time to stop the damage and start restitution.