Findings against Garda Keith Harrison by the Disclosures Tribunal should be quashed because of an alleged prior professional interaction between Mr Justice Peter Charleton and a witness, it has been claimed.
The Donegal-based Garda who was strongly criticised in the tribunal's interim reports has brought High Court proceedings on the grounds of an alleged prior professional involvement between the tribunal chair and Chief Superintendent Terry McGinn.
The alleged prior engagement related to when the Chief Superintendent was the Garda liaison to the Morris Tribunal, which considered allegations about gardaí in Donegal between 2002 and 2005 when Mr Justice Charleton was that tribunal's senior counsel.
Lawyers for the State claim the action should be dismissed and that Garda Harrison's proceedings are fundamentally misconceived.
The State also argues no reasonable observer could form an apprehension of bias, as alleged by Garda Harrison, on the part of Mr Justice Charleton based on the professional interaction with Supt McGinn between 2002 and 2005.
The hearing of the judicial proceedings where Garda Harrison seeks an order quashing findings in the Tribunal's second interim report and the findings of the third interim report in so far as it relates to Garda Harrison, commenced before Ms Justice Aileen Donnelly today.
Garda Harrison, represented by Mark Harty SC, also seeks a declaration that the judge has acted in breach of the Garda's rights to natural and constitutional justice and under Article 6 of the European Convention on Human Rights.
Garda Harrison argues the Disclosures Tribunal rejected allegations made by him and his partner, Marissa Simms, and had exonerated others they had made complaints about.
The couple's claims included that Ms Simms was compelled by gardaí to make a statement against Garda Harrison which led to a Tusla referral.
Garda Harrison also alleged he was the victim of a five-year intimidation campaign after arresting a fellow officer for drink driving in Athlone in 2009.
In an interim report, Mr Justice Charleton said all of Garda Harrison, who was criticised by the tribunal, and Marisa Simm's allegations examined by the tribunal were "entirely without any validity.”
In contrast, Mr Justice Charleton praised the conduct of the chief superintendent and her management of the Donegal Division and was a key witness in relation to matters contained in protected disclosure made by Garda Harrison.
Garda Harrison brought proceedings after becoming aware of newspaper reports which show a prior involvement between the Judge and the Chief Superintendent.
Counsel said articles published by the Irish Times in 2006 quoted criticism of reconstruction from the Morris tribunal broadcast on RTE that had created a poor impression of Chief Supt. McGinn
The articles quoted Mr Justice Charleton, then an SC, as saying all those who had worked with Supt McGinn had great respect for the assistance she had given the Morris tribunal and it was unfair to her that listeners might think she was not interested in the truth.
It is claimed the articles and transcripts of the Morris tribunal disclose that the Judge did know the Chief Superintendent and had worked with her and was in contact with her.
Mr Harrison's lawyers asked the chairman to withdraw the reports concerning his client. However, the tribunal rejected that request.
The tribunal said Chief Supt McGinn's role as liaison was independent of the Morris tribunal, her involvement with Morris was well known, and Mr Justice Charleton had no recollection of the comments he had made to the tribunal about the broadcast.
In its statement of opposition, the State denies the claims.
It argued that the "minimal professional involvement" between the Judge and Chief Supt McGinn does not show any perceived or actual bias.
The State also denies the claim that Mr Justice Charleton was not sufficiently impartial and independent to fairly assess the issues between Chief Superintendent McGinn and Garda Harrison.
The Judge had, when acting during the Morris tribunal, made a clarification to protect the good name of the Chief Superintendent in his professional capacity as Senior Counsel to that tribunal with the approval of its chairman Mr Justice Frederick Morris.
It was also denied that Mr Justice Charleton should have disclosed the nature of the previous professional involvement or should have recused himself from dealing with all matters concerning Garda Harrison.
The hearing continues.