Commission of Investigation

Types

There are a number of types of public inquiry and Commissions of Investigation provided for under legislation.  In addition, there are a number of areas in which there are general powers to appoint inspectors to investigate and report on matters.  The most general such power is under the Companies Act by which the Minister for Enterprise may appoint Inspectors to investigate the affairs of any the company.

The Oireachtas has powers to hold an inquiry.  The Supreme Court decision in Maguire v Ardagh severely limited the ability of the Oireachtas to hold inquiries that make a finding affecting individuals outside of the political or state sphere.  The court decided that these powers were outside the competence of the  Oireachtas. A referendum was put to grant enhanced powers to the Oireachtas, but the proposal was rejected.

The Commissions of Investigation Act provides a framework of investigations which is an alternative to Tribunals of Inquiry.  It arose principally from disenchantment with  the high cost and prolonged nature of many of the Tribunals of Inquiry which had been established.

Establishment

The Commissions of Investigation Act provides for the establishment of Commissions of Investigation to investigate matters of significant public concern.  It was established by the government based on a proposal by a Minister.  It must be approved by the Minister for Finance.  An order must be passed establishing the Commission of Investigation.  This must set out the subject matter to be investigated.  It appoints a Minister to oversee the establishment and functioning  of the Commission.

The consent of the Houses of Oireachtas is necessary for the establishment of a Commission of Investigation.  The proposed order must be laid before the Houses and must be passed and approved by resolution.  The order may set the terms of reference or authorise the government or Minister to set the terms of reference.

The terms of reference are to be circumscribed and be as certain and precise as possible.  It must set out the events, circumstances, activities, practices or procedures which are to be investigated.  It should set out details of dates, locations and persons involved where these matters are relevant. The Minister responsible is to ensure that there is a statement accompanying the proposed order containing estimates of costs and the proposed length of time.  This must be published.

Powers to Investigate

The Commission has powers to investigate any matters it considers appropriate subject to the legislation, its rules and procedures and the terms of reference.  The Commission is obliged to seek or facilitate voluntary co-operation where possible.  Generally it will conduct its affairs in private, unless the witness requires it as evidence to be given in public and the Commission consents or the Commission is satisfied it is desirable in the interest of investigation of fair procedures, that all or part of must be held in public.

Commissions of Investigations have a general power to establish their rules and procedures for taking and receiving evidence and other submissions.  They may direct any person to attend, give evidence and produce documents within their possession and control.  It may direct a witness to answer a question if it believes is relevant to the matter being investigated.  It may examine or cross-examine a witness on oath or affirmation by statute, declaration or interrogatories to the extent it considers proper to elicit information.

A Commission may direct a person in writing to give a list of documents under his possession or power relating to the matter being investigated.  He may specify objections to disclosure but must specify the reasons why.  It may direct a person who has provided information to experts appointed by the Commission for a statement confirming that the information was given voluntarily and, to the best of the person’s knowledge, is true and accurate.

Where the evidence is heard in private, the Commission may give directions in relation to persons who may be present when evidence is being given.  Legal representation of persons other than witnesses is permitted only if the Commission is satisfied that their presence is in keeping with the purposes of the investigation and is in the interest of  fair procedures and the Commission directs that they be allowed to be present. Witnesses may be cross-examined by and on behalf of the persons only if the Commissions so consent.

A member of a Commission or a person appointed by it may examine a witness orally or by written interrogatory. The Commission may receive evidence verbally, affidavit or otherwise as it directs.  There is provision for evidence by video link, sound recording, video recording or other transmission.

The Commission has power to set its own rules including rules of evidence and procedure.  The Commission may compel witnesses to attend or examine them under oath or by interrogatory.

It may require witnesses to admit certain facts or direct them to discover and disclose all documents verified by affidavit of material in their possession or under their control relating to the matters being investigated.  They may oblige persons to provide the Commission with the documents concerned.  Privilege may be claimed in the same way as in High Court proceedings. If the addressee of the requirement fails to comply, an application may be made to the High Court to compel compliance.

Costs

The Minister is to make guidelines in relation to legal costs before Commissions of  Investigation.  Legal costs may be incurred where the good name, conduct or  the personal or property rights of witness is called to question by evidence given to the Commission or received by it.

Guidelines may restrict the types of legal services and fees which may be paid for.  It may limit the extent to which costs may be paid.  The Commission gives copies of the guidelines to witnesses before evidence is given.

Some of the powers granted to equivalent bodies in the past limiting the right to cost have been found inconsistent with constitutional rights.  They have been held to amounts to an effective deprivation of legal representation.

Compliance Offences

The Commissions of Investigation Act makes it an offence to fail to attend to give evidence and produce documents.  It  may be punished as if it was contempt of court.  A person may not be prosecuted and found on contempt for the same offence.

It is an offence to make a statement which a person knows to be false and does not believe to be true.  It is an offence to obstruct an authorised person appointed by a Commission.  It is an offence to destroy documentation or information relating to matters being investigated.  It is an offence to disclose part of a draft report.

A Commission of Investigation may if a person does not comply with a direction, apply to the High Court which may order the person to comply with the direction and make such other order as it considers necessary and just to enable the direction to have effect.  If a person fails to comply it may be dealt with as if it was contempt of court.

The same broad privileges, as apply in relation to giving evidence before the High Court, applies to giving evidence before Tribunal.  See separately the sections on evidence and privilege before court.

It is an offence on being  summoned to make default in attending, refusing to take an oath or to answer questions lawfully posed.  It is an offence by any act or omission to obstruct or hinder the Tribunal in the performance of its functions.  It is an offence to fail to act or refuse to comply with an order of the Tribunal.  It is an offence to do or admit doing anything which would lead, which would be contempt of court before the High Court.

Report

The Commission of Investigation legislation provides expressly for preparation, content and publication of reports.  It provides for interim reports.

The legislation provides that on conclusion of investigation, the Commission must prepare a final report based on the evidence and setting out the facts it has determined.  If the Commission considers that the facts have not been established, it may identify the issue and indicate its opinion as to the quantity and weight of evidence on the issue.

The Commission may exclude information which identifies persons in certain circumstances.  This may arise if the person’s identity has not been clearly established.  It may arise where disclosure might prejudice criminal proceedings or would not be in the interest of the investigation or a subsequent inquiry.  Names may be withheld if it would not be in the person’s interest to have his  identity made public and the omission of the information would not be contrary to the interest of the investigation or subsequent inquiry.

The Minister may at any time request the Commission to furnish him with draft reports concerning progress of the investigation.

Finalising Report

The Commission must send a draft or interim report.  It must be accompanied by a note setting out the periods for making submissions or apply to court for an order amending the draft report.

If a person believes the Commission has not observed fair procedures, he  may make a submission as to why the draft should be amended.  He may apply to court to amend the documents.

When the Commission receives a written request to amend it may amend the report or apply to court for a direction that the court report stand unamended.  The court may direct the omission direct submission of report to the Minister unamended, invite the party concerned to make submissions or direct that the report be submitted as amended.