The Court of Appeal has dismissed Garda Keith Harrison’s appeal over findings in two interim reports of the Disclosures Tribunal, ruling that he had not established objective bias by its sole member, Peter Charleton.
The appeal concerned Charleton’s earlier work as senior counsel to the Morris Tribunal and a statement he made there in March 2006. He corrected a radio programme’s edited account of evidence about Chief Superintendent Terry McGinn, saying the full transcript showed she had supported a garda who was giving evidence. Harrison argued that the statement, alongside McGinn’s role as liaison officer to the Morris Tribunal, created a reasonable apprehension that Charleton could not impartially assess matters concerning her.
The Disclosures Tribunal investigated matters under terms concerning contact between gardaí and Tusla in relation to Harrison, and the alleged creation and use of files about garda whistle-blowers. Its second interim report, published in 2017, was critical of Harrison; he also featured in its third interim report, published in 2018.
Harrison sought judicial review of the reports in the High Court. The High Court rejected his objective-bias claim, and he appealed. The Court of Appeal applied the test of whether a reasonable, informed person would apprehend that Harrison would not receive a fair hearing. It said professional association alone was insufficient without a cogent and rational link to the decision being made.
The appeal court accepted evidence that McGinn’s Morris Tribunal role was to facilitate information flow between the tribunal and An Garda Síochána, including requests for documents and coordination of witnesses. It found there was no evidence that she and Charleton worked side by side or had a close relationship; their contact was described as rare and professional. The court also accepted evidence that the 2006 clarification followed a request from the Garda Commissioner and was made by Charleton in his professional capacity, with the tribunal chairman’s approval. The court noted that the statement referred to the transcript, not personal knowledge of McGinn.
The court held that neither the clarification nor the professional contact established objective bias. It also ruled that, if McGinn’s liaison role alone gave rise to an objection, Harrison had waived it: he knew of that role by October 2017 but did not raise the challenge then, despite having the opportunity to ask about it. The court did not decide whether McGinn’s involvement in the events covered by the tribunal’s terms required Charleton to assess her evidence, saying its earlier findings disposed of the appeal.
The Court of Appeal dismissed the appeal. It gave a provisional view that appeal costs should be awarded to Charleton, allowing Harrison 14 days to submit an alternative proposal and Charleton 14 days to reply. In default, the proposed costs order would be made.