Charting the Charleton tribunal

This article first appeared in Village magazine, June 2017 edition

As the tribunal of inquiry into protected disclosures and certain other matters prepares for its opening statement from counsel in mid-June, Peter Charleton must be wondering what he’s let himself in for.

It wasn’t supposed to be like this. The Supreme Court justice initially agreed to chair a commission of inquiry, a much more sedate affair than a tribunal. Set up by Michael McDowell in 2004 during his tenure in the department of justice, commissions of investigation addressed several concerns at the time about tribunals of inquiry, principally how to rein in their costs.

But commissions are held mostly behind closed doors, and when it emerged shortly after Charleton’s appointment that false allegations of child abuse had been made against whistleblower Sgt Maurice McCabe, the public clamour led the government to upgrade the commission to a tribunal of inquiry.

Fortunately, although fresh scandals continue to emerge from An Garda Siochana on an almost weekly basis, from investigations into breathalyser statistics and accounting practices in Templemore to reports of potential security breaches as senior officers use third-party email accounts from Gmail, the tribunal has avoided becoming a Christmas tree, attracting further terms of reference like baubles as each new report of alleged Garda misbehaviour emerged.

Charleton is of course no stranger to garda tribunals. He was the lead counsel for the Morris tribunal into Donegal Garda misbehaviour in its initial years. Set up in March 2002, the tribunal delivered its final report in 2008, although Charleton departed in2006, appointed as a judge to the High Court. A retired president of the High Court, Frederick Morris headed one of two Garda tribunals at the time, while Justice Robert Barr headed a tribunal into the Abbeylara siege which ended in the death of John Carthy, shot by gardaí. Coincidentally, Barr’s son Anthony, also a barrister, acted for the Morris tribunal alongside Charleton.

The latest whistleblowers inquiry (or as it wishes to be known, the Disclosures tribunal, and as it will probably become known among journalists, the Charleton tribunal) has one advantage over the Morris tribunal. While the Donegal inquiry looked as a wide range of issues covering over a decade, it terms of reference for the latest probe are much narrower. Even so, it could take some time to complete its work. Justice Barr looked at the events of a 25 hour siege, and the events leading up to it. His inquiry ran for four years.

Charleton hit the ground running. First announced early in February, before month’s end he delivered his opening remarks, pointedly observing that lies told to the tribunal would be a “waste of what ordinary men and women have paid for”, and that the Irish people expected the tribunal to do its work expediently.

His opening remarks sought to shut down the possibility of delays to the tribunal’s work by way of appeals to the High Court, arguing that because so many previous tribunals had led to appeals to the High Court and Supreme Courts, most issues relating to tribunals were pretty much settled law. He also sought to shut down any claims of journalistic privilege which might impede the tribunal’s investigations.

Mr Justice Peter Charleton reads the opening statement at the Disclosures tribunal
Mr Justice Peter Charleton reads the opening statement at the Disclosures tribunal

An interim report followed in mid-May, dealing mostly with the logistics of setting up the tribunal. It did reveal that at least some early concerns about journalistic privilege had been allayed, as both former garda commissioner Martin Callinan and his successor Nóirín O’Sullivan, and garda press office superintendent David Taylor, had waived any privilege in relation to any allegedly confidential communication with journalists.

Born in 1956, Charleton was educated at Trinity College and King’s Inns, before being called to the bar in 1979. He has written several books on criminal law in Ireland, as well as articles for both Irish and international journals on family law, constitutional law, copyright, extradition, law of torts, law of evidence, criminal law and judicial review, among other subjects. He has lectured at King’s Inns, Trinity College Dublin, Fordham University in New York and Beijing University of Political Science and Law. He is also chairman of the National Archives advisory council.

He was appointed to the Supreme Court in June 2014 following the retirement of the Justice Nial Fennelly.

A noted musician, he was a founder member of the RTÉ Philharmonic Choir, and is formerly a member of the board of the Irish Baroque Orchestra. He is often described in media profiles as “off beat” and “quirky”, which may be legal code for “well rounded” and “has interests outside the law”.

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