JAG conclusion on forced retirement of lieutenant quashed

THE High Court yesterday quashed a report of the Judge Advocate General (JAG) who concluded that a decision to forcibly retire a young Irish Army lieutenant in 1969 had been at that time “reasonable”.

For 36 years Donal de Roiste has been attempting to clear his good name and to overturn the decision.

Yesterday, Mr Justice John Quirke also granted Mr de Roiste a declaration that the report was void and had no effect.

He said the decision to recommend Mr de Roiste’s retirement in 1969 had been deemed by the courts to have been lawfully made.

However, there had been no determination by the courts or by any tribunal as to whether or not the decision to recommend his involuntary retirement was “reasonable”. The JAG (Oonah McCrann SC) inquiry was a process which was “apparently undertaken to make such a determination” he said.

He was satisfied that since the process undertaken by the JAG directly concerned matters relating to the Mr de Roiste’s reputation and good name, its finding and outcome affected his constitutional rights.

Mr Justice Quirke also found that Mr de Roiste had not been granted fair procedures.

Mr de Roiste claimed the JAG had failed to acquaint him with details of the case which he had to meet and he had been refused access to army and department documents until after the JAG inquiry concluded leading Mr de Roiste’s solicitors to make submissions to the JAG “on the blind”.

It had been patently unfair to Mr de Roiste, said the judge, that the minister and Defence Forces has access to the documents and it comprised a failure to provide him with fair procedures and a failure to observe principles of natural and constitutional justice in the conduct of the process.

No explanation had been offered for justification or mitigation by the State.

Mr de Roiste of Cabhsa Inismhor, Ballincollig, Co Cork, now aged 60, was forced to retire from the Defence Forces “in the interests of the service” on grounds that he was suspected of associating with persons engaged in subversive activities.

Mr Justice Quirke in a reserved judgment said the High Court (in June 1999) and the Supreme Court (on appeal in January 2001) refused to allow Mr de Roiste proceed with his challenge.

On July 1, 2002 Major General Sean Brennan decided to give Mr de Roiste access to files and papers surrounding his retirement and one day later the Minister for Defence established the JAG inquiry and also that Mr de Roiste should not get the files and papers until after the JAG report.

Mr de Roiste solicitors without the documents made what they described as a “blind” submission to the JAG.

Mr Justice Quirke said the process undertaken by the JAG was significantly more than for the purpose of submitting to the minister a “mere fact-finding report”. It was a process which required the JAG to reach conclusions and make findings of fact that recommendations to the minister.

Following his defeats in the courts Mr de Roiste appeared to have exhausted the remedies available to him. But in July 2002, for reasons not readily apparent, the minister charged the JAG to focus on matters directly concerned with Mr de Roiste’s reputation and good name.

The judge rejected the JAG findings and recommendations were “legally sterile” because no legal right vested in Mr de Roiste had been or could be affected by them.

The so-called “legally sterile” nature of those conclusions, findings and recommendations was not, by itself, a sufficient ground to deprive Mr de Roiste of the right to seek to quash the JAG report.