The Garda could be blamed if its claim of privilege on documents leads to delays in the Morris tribunal, writes Carol Coulter.
The decision of the Garda Commissioner to seek an extension of time for making an affidavit of discovery of all relevant documents to the Morris tribunal will delay it by at least a month.
Mr Pat Byrne has also indicated that he will be claiming privilege on certain documents which, if challenged by the tribunal in the High Court, will delay the tribunal for many more months, thereby increasing its cost and stretching the patience of the public.
The Commissioner has given no indication of what kind of privilege he intends to claim, so there is no way, as yet, of evaluating its merits. But a claim of privilege that ends up being rejected by the tribunal and the High Court could do substantial further damage to the reputation of the Garda Síochána.
The terse statement issued by the Morris tribunal on Tuesday gave little indication of the type of documents it was seeking from the Garda Síochána.
Different types of privilege can arise in relation to documents held by the Garda Síochána. It could be solicitor-client privilege, which would be involved in the relations between the gardaí and the local State Solicitor, for example. Unless the solicitor and his or her client are engaged in a criminal conspiracy, solicitor-client privilege is sacrosanct.
The question of informer privilege is also likely to arise. Informers enter a relationship with members of the gardaí which involve their identity never being revealed without their permission. Already a number of informers or purported informers have been named in the opening statement. The names of others may arise.
However, it would be possible for the Mr Justice Morris and his legal team to be informed of the names without them entering the public arena. Precedent exists for this type of modification of privilege in the Nevin case, when certain documents were shown to the trial judge but not to the defence team.
There may also be an issue as to whether all those described as informers were genuine informers or not. People who claimed to have vital information for the gardaí may turn out to have had no such information, and to have been wasting Garda time. They would not be protected by informer privilege.
A type of privilege is also enjoyed by others whose lives may be put at risk by their identities being revealed. Successive Supreme Court judgments have recognised a hierarchy of constitutional rights, with the right to life being held to be superior to the right to litigate. If the right to life were at stake, documents that would put that in jeopardy could be covered by privilege. Again, the tribunal is unlikely to contest this if seriously argued.
There is also State privilege, where documents generated by organs of the State can be held to be privileged. However, this is not a general privilege, and the State organ must be specific about the documents in question and give reasoned grounds for the claim of privilege.
Unfortunately, the Garda Commissioner, Mr Byrne, has not outlined the basis on which privilege is being claimed, giving the impression of not affording the tribunal the fullest co-operation it was regularly promised.
In contrast, the often-vilified Department of Justice and its successive ministers have, according to the tribunal, so far volunteered the fullest co-operation. The statement said that the tribunal had met departmental officials and former ministers for justice and it is clear that they will give evidence to the tribunal, even though they are not named in its terms of reference.
Indeed, it is clear that the tribunal does not feel that the terms of reference in any way prevent it from fully investigating their role. This may pave the way for the McBrearty family members who have refused to co-operate with the tribunal because of the non-inclusion of the Department and ministers from the terms of reference, to reconsider their position.