As the Tribunal of Inquiry into protected disclosures and Certain Other Matters prepares for its opening statement from counsel in mid-June, Peter Charleton must be wondering what he’s let himself in for.
It wasn’t supposed to be like this. The Supreme Court justice initially agreed to chair a commission of inquiry, a much more sedate affair than a tribunal. Set up by Michael McDowell in 2004 during his tenure in the department of justice, commissions of investigation addressed several concerns at the time about tribunals of inquiry, principally their ratcheting costs.
But commissions are held mostly behind closed doors, and when it emerged shortly after Charleton’s appointment that false allegations of child abuse had been made against whistleblower Sergeant Maurice McCabe, the public clamour led the government to upgrade the commission to a tribunal of inquiry. A bigger deal altogether.
He said there would be two modules in the tribunal – the first module will concern the reaction of Garda Commissioner Nóirín O’Sullivan, former commissioner Martin Callinan and others at the highest command level to disclosures made by Sgt McCabe.
Maurice McCabe rejected plans for a Commission of Investigation calling instead for the inquiry to be held.
The second module will deal with members of the force who made protected disclosures and whether they were mistreated as a result.
Fortunately, although fresh scandals continue to emerge from An Garda Síochána almost weekly, from investigations into breathalyser statistics and accounting practices in Templemore to reports of potential security breaches as senior officers use third- party email accounts from Gmail, the Tribunal has avoided attracting further terms of reference as each new report of alleged Garda misbehaviour emerged.
Charleton is of course no stranger to Garda tribunals. He was the lead counsel for the Morris tribunal into Donegal Garda misbehaviour in its initial years. Set up in March 2002, the tribunal delivered its final report in 2008, although Charleton departed in 2006, appointed a judge to the High Court. A retired president of the High Court, Frederick Morris headed one of two Garda tribunals at the time, while Justice Robert Barr headed a tribunal into the Abbeylara siege which ended in the death of John Carthy, shot by gardaí. Coincidentally, Barr’s son Anthony, also a barrister, acted for the Morris tribunal alongside Charleton.
The latest whisleblowers inquiry (or as it wishes to be known, the Disclosures tribunal, and as it will probably become known among journalists, the McCabe or Charleton Tribunal) has one advantage over the Morris Tribunal. While the Donegal inquiry looked at a wide range of issues covering over a decade, the terms of reference for – and indeed the events which are being scrutinised by – the latest probe are much narrower. Even so, it could take some time to complete its work. Justice Barr looked at the events of a 25-hour siege, and the events leading up to it. His inquiry ran for four years.
Charleton moved swiftly from the first. First announced early in February, before month’s end he had delivered impressive opening remarks, pointedly observing that lies told to the tribunal would be a “waste of what ordinary men and women have paid for”, and that the Irish people expected the tribunal to do its work expediently. Lies are a big thing for him: in a 2006 book, ‘Lies in a Mirror: An Essay on Evil and Deceit’, Charleton reflected on the criminals he had worked with, developing the idea that lying opens up the evil within all of us.
His opening remarks also sought to shut down the possibility of delays to the tribunal’s work by way of appeals to the High Court, arguing that because so many previous tribunals had led to appeals to the High Court and Supreme Court, most important issues relating to tribunals were pretty much settled law. He also sought to shut down any claims of journalistic privilege which might impede the tribunal’s investigations.
An interim report followed in mid-May, dealing mostly with the logistics of setting up the tribunal. It did reveal that at least some early concerns about journalistic privilege had been allayed, as both former Garda commissioner Martin Callinan and his successor Nóirín O’Sullivan, and Garda press office superintendent David Taylor, had waived any privilege in relation to any allegedly confidential communication with journalists.
Born in 1956, Charleton was educated at St Mary’s College, Dublin, Trinity College and King’s Inns, before being called to the bar in 1979. He has written several books on criminal law in Ireland, as well as articles for both Irish and international journals on family law, constitutional law, the law of evidence, criminal law and judicial review. He has lectured at King’s Inns, Trinity, Fordham University in New York and Beijing University. He is unpaid chairman of the National Archives advisory council. He was appointed from the High Court to the Supreme Court in 2014.
A noted musician, he was a founder member of the RTÉ Philharmonic Choir, and is formerly a member of the board of the Irish Baroque Orchestra. He is often described as “off beat” and “quirky”, which may be legal code for “well rounded” and “has interests outside the law”.
By Gerard Cunningham
