Thursday, 16 November 2006
Retirement of Army Officer.
Question 3: To ask the Minister for Defence his views on whether the demand for an investigation and review of a matter by a person (details supplied) remains legitimate; and if he will take steps to ensure that an inquiry this time involving fair procedures is established. [38306/06]
The individual concerned was retired by the President, on the advice of the Government, with effect from a date in June 1969. The retirement was effected pursuant to section 47(2) of the Defence Act 1954 and paragraph 18(1)(f) of Defence Force Regulations A.15, which provide that an officer may be retired "in the interests of the service". The House will appreciate that a decision to retire an officer "in the interests of the service" is only taken for the most compelling reasons. The Government advice to the President in 1969 was on grounds of security. I am satisfied that the matter was handled in an entirely appropriate and proper manner in 1969 and that the decision was taken only after very detailed and due consideration.
The individual initiated proceedings in the High Court in November 1998 in respect of the circumstances of his retirement some 29 years earlier. The High Court found in favour of the State in June 1999 on grounds of inordinate delay in the bringing of the proceedings. The individual appealed to the Supreme Court in September 1999. The Supreme Court refused the appeal in January 2001.
In early July 2002, arising from a newspaper feature article on the case published on 29 June 2002, the then Minister for Defence requested the Judge Advocate General to examine and review the case. The Judge Advocate General, a civilian barrister, carried out a detailed examination and review of all the historical documentation relating to the decision to retire the individual concerned by reference to the entirety of both the Department of Defence and the military files in the matter. Her report was submitted to the then Minister in mid-September 2002 and was published in October 2002.
In December 2002, the individual applied to the High Court for an order quashing this report by the Judge Advocate General. The High Court found in favour of the applicant for reasons enumerated in the text of the High Court judgment on his application. The High Court judgment of 27 July 2005 related only to the report completed by the civilian Judge Advocate General in September 2002. The presiding judge, Mr. Justice Quirke, held that the report should be quashed because fair procedures had not been applied in the compilation and production of that report and in the timing of the release by the Department of Defence of certain documents to the applicant.
Additional information not given on the floor of the House.
Mr. Justice Quirke concluded his judgment by stating that "the decision made in 1969 to recommend the Applicant's retirement from the Defence Forces remains unaffected by any order made in these proceedings".
It should be emphasised, therefore, that the High Court judgment in the matter of the report of the Judge Advocate General specifically related to the actual procedures utilised by the Judge Advocate General in the course of her review and examination of this matter in 2002 and to the release by the Department of Defence of certain documents to the individual only after completion of the report. The individual concerned specifically did not seek an order for mandamus from the High Court and, therefore, did not request the High Court to remit the matter, to direct a resumption of the Judge Advocate General's original inquiry or to direct that a new inquiry be held by the Judge Advocate General or by any other person.
The substantive issue, namely, the Government decision in 1969 to recommend the retirement of this individual from the Defence Forces by the President, remains unaffected by the judgment of the High Court, a point specifically emphasised within the text of the judgment itself. A book on this case was published in May 2006 which did not add anything material to our previous body of knowledge in the matter. In the circumstances, I do not propose to take any further action in respect of this matter.
This is a long-standing case which has spanned 37 years. The person in question, Donal de Róiste, has maintained and sought to prove his innocence to such an extent that the Minister's predecessor, Deputy Smith, acknowledged that there were questions to be answered by requesting the Judge Advocate General to investigate the matter. Does the Minister accept that the High Court ruling in 2005 preventing the publication of the Judge Advocate General's report leaves the way open for him to ask for another such inquiry rather than force Donal de Róiste to go through the courts? The Minister for Justice, Equality and Law Reform continually informs us that the courts are clogged up. If alternative methods and avenues exist by which the truth in this instance can be gleaned, they should be pursued. An independent inquiry would be one of these mechanisms.
The High Court ruling basically concluded that the Judge Advocate General's inquiry denied Mr. de Róiste fair procedures. Some of it stems from the fact that some of the witnesses are those who are able to contribute a defence or, at least, give some of the facts relating to the case, such as the retired Army commandant, Patrick Walsh, and the fact that the High Court judge might have been concerned about the fact that the Judge Advocate General refused to meet this man who would have been able to put some more bones on this story. Will the Minister establish an inquiry, possibly under the Commissions of Investigation Act 2004, which would grant Mr. de Róiste fair procedures for the first time?
I do not accept that the High Court decision of 2005 opens the door to another inquiry or in any way indicates that an injustice has been done to Mr. de Róiste. We must remember that two decisions were made, one by the High Court and the other by the Supreme Court, which all witnesses were entitled to attend and where Mr. de Róiste was entitled to present his full case. On the substantive facts of the case, the High Court found and the Supreme Court subsequently agreed that too much time had elapsed and that, therefore, Mr. de Róiste was not in a position to prove his case. This is the reality of the matter.
In 2005, Mr. Justice Quirke decided that the procedure established under the Judge Advocate General was incorrectly conducted. From reading the judgment in full, it appears that if one was to hold an inquiry, one would need a different procedure. One would need to use the procedure suggested by Deputy Ó Snodaigh, namely, a sworn public inquiry where witnesses would be called. It appears that the difficulty with this is that, on one side, one would have Mr. de Róiste, but practically all the witnesses on the other side are dead. I believe one or two are still alive but they are too incapacitated to attend. Therefore, one would have an oral presentation on one side against the silent testimony of the archival documents on the other. This form of inquiry is not very fair.
In the 2005 case, Mr. de Róiste did not seek an order of mandamus, any follow-up order or the recommencement of the Judge Advocate General's inquiry so this is where the matter stands. We cannot have a proper inquiry based on physical evidence on the one side and documents or archives on the other. It seems that if we have to come within the terms of what the High Court wanted in 2005, that is all we could have.