By Ann O'Loughlin
A woman whose partner was shot dead by a garda during an attempted armed robbery of a cash-in-transit van has lost her High Court bid to overturn a Commission of Investigation finding of lawful killing.
Gráinne Nic Gibb’s partner, Ronan MacLochlainn (aged 28), a member of the Real IRA, was shot dead in the May 1, 1998, incident in Ashford, Co Wicklow. He had been attempting to leave the scene in a hijacked car.
James MacGuill, solicitor for Ms Nic Gibb, said their case was gardaí could have stopped the attempted robbery beforehand and arrested Mr MacLochlainn but instead “went for the spectacular”.
After Ms Nic Gibb brought proceedings in the European Court of Justice following an inquest in 2010, the Commission was set up in 2014. Its sole member is senior counsel Mary Rose Gearty who heard 60 days of evidence.
In an application under the Commissions of Investigation Act 2004, Ms Nic Gibb asked the High Court to delete the commission’s finding of lawful killing from its May 2016 final report, on the basis it was unsafe because of the commission’s alleged failure to address a range of issues and unexplained gaps in the evidence.
Neither Ms Gearty nor the Garda Commissioner, a notice party, were represented.
Having considered the report and submissions of Ms NicGibb, the judge gave a reserved judgment today, refusing the application.
She noted two vans used in the robbery were under surveillance before and on May 1, 1998, about 30 members of the Garda National Surveillance Unit were at the robbery scene and three officers shot at Mr MacLochlainn. The officer who fired the fatal shot was a member of the NSU. He made a statement at the time, but has since died, she added.
The Commission made various amendments to an earlier draft report after receiving submissions of Ms Nic Gibb, including accepting it was not possible to resolve the conflict in the evidence on the position of the Green Mazda vehicle hijacked by Mr MacLochlainn at the time a Garda jeep overtook it, she said.
The Commission had on May 13, 2016, issued its amended final report to Ms NicGibb, advising any application to the High Court concerning it should be made by May 17, 2016. On May 16, 2016, Ms Nic Gibb applied to the court.
In her 98-page judgment, Ms Justice Faherty said Ms NicGibb argued the material before the Commission did not permit it to safely conclude the killing of Mr MacLochlainn was lawful for reasons including gaps in the evidence, failure of memory on the part of witnesses and lack of explanation for missing documents.
While not urging a finding of unlawful killing, as she accepted there was a dearth of evidence preventing such a finding, Ms Nic Gibb argued the same dearth of evidence prevented a finding of lawful killing.
Having regard to the Commission’s terms of reference, it was open to it to pronounce on the lawfulness or otherwise of the shooting if it found itself in a position to do so, the judge said.
She rejected claims of unfairness and breach of fair procedures, including alleged failure by the Commission to address the issue of unaccounted for damage to the Green Mazda and a conflict in relation to the location of Mr MacLochlainn’s firearm at various times.
She agreed with the Commission’s view, while the damage to the Mazda was "not an insignificant event", that did not mean it was critical to an understanding of how Mr MacLochlainn died.
She was also satisfied the Commission was "more than alive" to the possibility garda witnesses might consciously have sought to disremember matters or collude to conceal certain matters.
The Commission, she noted, found the Garda investigation into the shooting was not thorough and there was a “toxic” breach of hierarchical rules of the force and of basic scene preservation.
There was also evidence for the Commission’s conclusion a robbery was one of the least likely to several possibilities on May 1, 1998, she said.
She was not persuaded, in finding the killing was lawful, the Commission failed to have regard to expert evidence concerning the conduct of the garda operation and said the assessment of such evidence was a matter for the commission, not the court.
There was no procedural frailty requiring the court to direct the Commission to amend its final report or take further evidence, she concluded.