Thursday, March 09, 2023

High Court reporters

A “murky” and “secret” process of vetting for the post of Captain of the Guard in the Houses of the Oireachtas had taken place alongside normal garda vetting, the High Court has heard.

The claim was made in proceedings being brought by Defence Forces Captain Alan Kearney who claims his nomination to the post had been cancelled in breach of his rights.

The Captain of the Guard performs part ceremonial part security roles in the Oireachtas and is ultimately appointed by the Taoiseach following a recommendation of appointees from the Commission of the Houses of the Oireachtas (CHO).

Captn Kearney, who is based at the army’s Curragh Training Camp Base Logistics in Kildare, brought judicial review proceedings in December 2021 against the Taoiseach, the CHO, the Garda Commissioner, Minister for Justice, Ireland and the Attorney General.

He claimed the Garda Commissioner failed, refused, or neglected to process his security clearance for the job in a timely and expeditious manner.

He also sought an order quashing the decision of the CHO on November 26th, 2021, not to proceed with his nomination to the post.

The respondents deny his claims.

Captain Kearney said he applied for the job, which was openly advertised, in early 2021.

In April that year he accepted an offer of appointment which was still subject to approval by the Taoiseach after consultation with the Chairman of Dáil Éireann and the Chairman of Seanad Éireann. It was also subject to garda vetting.

He completed and returned the necessary paperwork to the Garda National Vetting Bureau, and he was told that the necessary disclosure had been sent on to the Houses of the Oireachtas.

He said following the garda vetting, his home was subject to a garda search, under warrant, and nothing untoward was found.

Direct knowledge

Captain Kearney said the Defence Forces Military Police informed him that on foot of information received from gardaí that “my name was mentioned in association with a garda investigation concerning a former member of the Defence Forces who had previously served in my unit”

He said he was not interviewed or contacted by gardaí and had no direct knowledge of the investigation. He said no charges had been brought against him, and he has “no civil convictions and I value my good name and standing”.

He felt his career and good standing was damaged in the eyes of some of his superiors by this episode.

His December 2021 proceedings were adjourned a number of times but, he says, following certain information in documents exchanged as part of those proceedings, he brought separate proceedings in March 2022 claiming his constitutional rights had been infringed and seeking damages.

On Thursday, his lawyers sought to have both sets of proceedings heard together, or consolidated, to save expense and court time. The respondents opposed the application.

His counsel Gerard Humphreys SC said as a result of information provided as part of the initial case “we now realise there is a secret process operating which is not being disclosed”.

He said this was a separate process to normal garda vetting by the National Crime and Security Intelligence Service.

Garda vetting is covered by the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, he said.  He said there now appeared to be “non-Act vetting” going on which was not in keeping with transparency required for public appointments.

“I say this is a murky process and there is also a problem with the terminology and language used,” he said.

Shane Murphy SC, for most of the respondents, and Mairéad McKenna SC, for the CHO, denied there was any secret or murky process.

They also argued that the first proceedings should go ahead because combining them with the second case would cause delays.  The first case was ready to be heard and would deal with the core issue which runs through both cases, it was argued.

Ms Justice Niamh Hyland said she would give her decision on Friday.

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