Various Privileges

Cases

Bailey v Governor of Mountjoy Prison

[2012] IEHC 366,

JUDGMENT of Mr. Justice Hogan delivered on the 31st day of July, 2012
1. In this application pursuant to Article 40.4.2 of the Constitution the respondent has raised an important issue regarding the scope of this provision and its inter-action with the remedy of judicial review. The applicant maintains that he did not receive due notice of a Circuit Court hearing in May, 2012 as a result of which an earlier District Court conviction (of which he admittedly had notice) was affirmed. He contends that his arrest and detention pursuant to a committal warrant then issued by the Circuit Court is accordingly unlawful. The respondent contends, however, that this issue should more properly be determined by means of an application for judicial review of the warrant, rather than by means of an application under Article 40.4.2.

2. In this judgment I am now called upon to resolve this question as a preliminary jurisdictional issue. The issue arises in the following fashion.

3. The applicant is currently serving a sentence of four months imprisonment in respect of a series of road traffic offences, including non-display of motor tax, driving without insurance and driving without a driving licence. The summonses first came before the District Court on the 9th May, 2011, whereupon the applicant was assigned legal aid. The Legal Aid (District Court) Certificate was sent to the applicant’s solicitor at his business address and a copy was also sent to the applicant at 29 Finnstown Hall, Lucan, Co. Dublin.

4. The applicant was subsequently convicted of these offences in the District Court on the 11th January, 2012, whereupon he received a sentence of four months imprisonment. The applicant appealed the conviction to the Circuit Court by filing and serving a notice of appeal and, upon entering into the appropriate recognisance in Mountjoy Prison, he was released pending that appeal. The applicant’s solicitor, Simon Fleming, has sworn an affidavit saying that neither he nor the applicant received any notification of an appeal date, although it appears to be the usual practice that such notification is sent to both the appellant and his or her solicitor.

5. Matters came to a head on the 15th July, 2012, when a relative of the applicant attended Ronanstown Garda Station where he was informed that there was a warrant in existence for the present applicant. The relative was asked to inform Mr. Bailey that he should attend at that station in order to have the warrant executed. The applicant duly attended Ronanstown Garda Station later that day, whereupon he was arrested on foot of the committal warrant. The committal warrant recites the particular of the conviction in the District Court and goes on then to provide:-

“Whereas the hearing on appeal by the said accused against the said order, the Circuit Court judge for the County and City of Dublin on the 13th June, 2012, ordered as follows: no appearance, strikeout appeal, affirmed conviction and order of the District Court and ordered that the accused be imprisoned for a period of four months.”
6. Critically, however, that warrant was addressed to the applicant at 17 Shancastle Drive, Clondalkin, Dublin 22. This is, apparently, a former address of the applicant but he has not resided there for some time. Mr. Bailey is currently residing with his mother at 34 Gurteen Avenue, Ballyfermot, Dublin 10. The essence, therefore, of the present complaint is that the applicant’s detention in Mountjoy Prison is unlawful by reason of the fact that neither he, nor his assigned solicitor, received any notification of the appeal date, with the result that he did not appear for his appeal.
7. This initial application for an inquiry was moved on Thursday, 19th July, 2002. made an order pursuant to Article 40.4.2 requiring the respondent to certify the grounds in writing and to produce the applicant before me on the following day. On Friday, 20th July, counsel for the respondent, Mr. McGillicuddy, indicated to the court that further time was necessary in order to ascertain the precise sequence of events with regard to the issue of the notification of the appeal date.

8. It was agreed that Mr. Bailey should be admitted to bail (on admittedly stringent terms to the following Monday, 27th July). On that occasion Mr. McGillicuddy indicated that yet further time was necessary, although he hoped to have affidavit evidence on behalf of the respondent filed within a matter of days. On Thursday 26th July, Mr. McGillicuddy indicated that there was still difficulties in preparing the affidavit and that it now appeared that affidavits from several different deponents would now be necessary.

9. At that juncture, however, Mr. McGillicuddy indicated that he wished to raise a preliminary jurisdictional issue, namely, that the applicant’s complaints in relation to the notification of the appeal and the validity of the committal warrant ought properly to have been raised by way of judicial review rather than by way of an application under Article 40.4.2. Counsel for the applicant, Mr. O’Higgins S.C., issued that he was consenting to have this matter dealt with as, in essence, a preliminary jurisdictional issue. This judgment, therefore, addresses this net issue.
The Supreme Court decisions in Sheehan, McSorley and McDonagh
10. So far as the jurisdictional issue was concerned, Mr. McGillicuddy relied heavily on the Supreme Court’s decision in McSorley v. Governor of Mountjoy Prison [1997] 2 I.R. 258. In this case the applicants pleaded guilty before the District Court to the offence of being in the unlawful possession of a motor vehicle and were sentenced to periods of imprisonment. The essence of their complaint was that the District Judge had failed to inform them of their right to legal aid. This factual contention was accepted by the respondent (who was the Governor of Mountjoy Prison), inquiries having been made with the prosecuting Gardai. The Supreme Court held, however, that in those circumstances where the conduct of the District Judge had been called into question, the application should have proceeded by means of judicial review, as this would have given both the judge and the Director of Public Prosecutions an opportunity to have been heard.

11. Mr. McGillicuddy conceded that the earlier decision of the Supreme Court in Sheehan v. Reilly [1993] 2 I.R. 81 appeared to point in the opposite direction. Here the applicant had been sentenced by a District Judge to a period of imprisonment in excess of the statutory maximum. In that case this Court directed that the applicant proceed by way of an application for judicial review rather than under Article 40.4.2. On appeal, however, the Supreme Court held that it was “quite inappropriate to convert this application under Article 40 into a judicial review proceeding”: see [1993] 2 I.R. 81, 92, per Finlay C.J. This was especially so where, as here, this process could add to the delay, not least where it transpired that, as Finlay C.J. was to point out, the applicant remained in unlawful custody for a period after the initial application for an inquiry was converted into a judicial review application: see [1993] 2 I.R. 81, 92. In McSorley, O’Flaherty J. (who was himself a member of the five judge Court in Sheehan) distinguished Sheehan on the basis that “it was clear by reference to the record in that case that the applicant was in unlawful custody”: see [1997] 2 I.R. 258, 262.

12. In McDonagh v. Governor of Cloverhill Prison [2005] IESC 4, [2005] 1 IR 394 the Supreme Court granted an order under Article 40.4.2 in circumstances where a District Judge had refused bail on grounds not advanced by the prosecution and which were not supported by the evidence and of which the applicants had no notice. The judge also appears to have made inappropriate comments about the fact that the applicants were members of the travelling community. McGuinness J. concluded her judgment thus ([2005] 1 I.R.394, 405):-

“It appears to this court that the procedural and other deficiencies of the hearing before the District Judge in this case were indeed such as would invalidate essential steps in the proceedings leading ultimately to the applicant’s detention, or, to use the words ofHenchy J. in The State (Royle) v. Kelly [1974] I.R. 259, the detention of the applicants was wanting in the fundamental legal attributes which under the Constitution should attach to it. The court, therefore, on the date of the hearing of this matter, allowed the appeal and ordered the immediate release of the applicants.”
13. I confess that I have not found it at all easy to reconcile Sheehan and McDonagh on the one hand and McSorley on the other, not least given that all three cases involved, to one degree or another, imputations on the conduct of the District Judge in question. This is, perhaps, especially true of the facts in both McSorley and McDonagh. As it happens, McSorley was not referred to in McDonagh.
14. I have nevertheless come to the conclusion that McSorley must be regarded as being a singular and exceptional case which effectively is confined to those special cases where the conduct of the judge who made the order detaining the applicant has been specifically impugned, such as then to require the matter to proceed by way of judicial review in order to ensure that the judge in question was served with the proceedings so as to enable him or her “to make their observations”: [1997] 21.R. 258, 263, per O’Flaherty J. Insofar as McSorley established any wider rule- such as, for example, that Article 40.4.2 is available only where the unlawful custody was obvious – such a rule has not been applied by the Supreme Court either before or after that decision. Given that – to put matters no lower – the preponderance of other Supreme Court authority leans heavily against such a rule, in these circumstances, I do not consider that such a rule is binding on me.

15. In any event, such a rule would dramatically reduce the scope, power and effect of Article 40.4.2°, even though the availability of this remedy is central to the workings of a free society. Any one who doubts such a proposition really need look no further than the famous opening lines of Kafka’s great novel, The Trial (“Someone must have been telling lies about Josef K., for, without having done anything wrong, he was arrested one fine morning”) or, indeed, for that matter, its closing, despairing lines (“Where was the judge he had never seen? Where was the High Court he had never reached?”). Given these considerations, it seems unlikely that the Supreme Court in McSorley intended to prescribe such an interpretation of Article 40.4.2° with potentially far-reaching consequences.

16. A rule of this nature would also seem contra-indicated by the actual wording of Article 40.4.2° itself which requires this Court forthwith to inquire into the complaint. If, however, the jurisdiction of this Court under Article 40.4.2° was confined to those cases where the illegal nature of the detention was obvious, why, then, it might be asked, should this Court have the role and function of conducting such an inquiry and, indeed, why should this elaborate role be spelt out by the Constitution in such meticulous detail?

17. The distinction between legal errors which are patent and those which are not is not one, moreover, which is drawn by the language of Article 40.4.2 itself. Article 40.4.2 is rather solely concerned with the legality of the detention, irrespective of the nature of the legal error which infects the detention. Thus, the detention may be wholly illegal, even though the order grounding the detention may be perfectly valid on its face. The Supreme Court’s judgment in McDonagh itself provides a good illustration ofthis.

18. Here it may be recalled that fair procedures and the giving of due notice is fundamental to the judicial mandate, namely, the administration of justice as required by Article 34.1. The centrality of fair procedures and the necessity for timely notice in administrative and judicial decision-making has been stressed in scores of major decisions of the Supreme Court, of which cases such as Re Haughey [1971] I.R. 217, DK v. Crowley [2002] 2 I.R. 744 and Dellway Investment Ltd v. NAMA [2011] IESC 14 are only among the most notable and important.

19. Besides, as Davitt P. observed in The State (Quinn) v. Ryan [1965] I.R. 70, 89, the guarantees in Article 40.4.2° must be construed in the light ofthe State’s obligations to protect the person in Article 40.3.2° and the liberty of the person in Article 40.4.1°. Unless, as Davitt P. put it, these guarantees are to be regarded as “mere platitudes”, it follows that Article 40.4.2° must accordingly be interpreted in a manner which makes it effective. Yet the very effectiveness of that remedy might well be compromised if issues of the adequacy of notice of criminal proceedings could not be raised via Article 40.4.2°, not least where the applicant might be obliged in practice to spend a longer period in unlawful custody than would otherwise have been the case. This point is illustrated by the following example.

20. Suppose that by reason of confusion and error in relation to name, identity or address a completely innocent person has been arrested on foot of a committal warrant and detained in custody in respect of a criminal charge of which he knows nothing. Is it to be said that such an applicant should be obliged to forfeit the protections of Article 40.4.2° – which does not require prior leave to commence the proceedings, which enables the applicant to apply for an inquiry to any judge of this Court of his or her choosing, which requires this Court forthwith to inquire into the complaint, which permits the Court to require the production of the applicant and the certification of the grounds of the detention and which is not a discretionary remedy – in favour of the remedy of judicial review which is not as expeditious, which does not contain these safeguards, which requires prior leave and is itself a discretionary remedy?

21. On putting this example in oral argument to Mr. McGillicuddy, he suggested in reply that much would depend on how straightforward the case in question might prove to be. He conceded, for instance, that issues of notice which might easily be resolved by means of a routine inquiry to the Gardai or the office of the Director of Public Prosecutions could readily be dealt with by means of the Article 40.4.2° procedure. Other more complex cases- of which he insisted this was one- could more properly be dealt with by means of judicial review. The difficulty with this approach, of course, is that the judge to whom the initial complaint under Article 40.4.2° is made is unlikely to be able to determine on an ex ante basis whether this is one of the more straightforward or more complex cases and to accommodate the proceedings accordingly.

22. At all events, whether the factual issues are complex or otherwise, the fundamental point remains that issues of notice are central to the fair administration of justice and the legality of any ensuing detention. Where an applicant can show that he has been convicted in circumstances where he did not receive adequate prior notice, then his ensuing detention has been flawed by a “basic defect as to make his conviction a nullity [so] that the detention was not in accordance with law”: The State (Royle) v. Kelly [1974] I.R. 249, 254, per Henchy J. There can be no doubt at all- unless the words of the Constitution are to be reduced to purely platitudinous statements of benign goodwill ­ that an inquiry into these matters falls squarely within the provenance of Article 40.4. 2°.
Conclusions
23. In conclusion, therefore, it follows that, for the reasons I have endeavoured to advance, I would reject the jurisdictional arguments advanced by the respondent that the issues bearing on the adequacy of notice in criminal proceedings cannot be raised by means of an application under Article 40.4.2° or that these issues should more properly dealt with by means of an application for judicial review.

24. In the light of this ruling, I propose now to continue with the balance of the inquiry into the legality of the applicant’s detention pursuant to Article 40.4.2°.

Gilroy v. McLoughlin

[1988] IR 44

Blayney J. 45
H.C.

Blayney J.
8th March 1988

What falls to be decided in this case is a preliminary issue which MacKenzie J., by consent of the parties, directed to be tried by a judge without a jury. It arises in the following way.
A collision occurred on the 3rd September, 1984, at the junction of Lower Kilmacud Road and Stillorgan Road between a motor car owned by the plaintiff (whom I shall call Mr. Gilroy) and a motor car owned by the defendant (whom I shall call Mr. McLoughlin) which was being driven by the latter’s brother, Don McLoughlin. Proceedings were instituted in the Circuit Court against Mr. Gilroy by Mr. McLoughlin and his brother, the former claiming damages for damage to his motor car and the latter claiming damages for personal injuries. The action was heard on the 24th January, 1986, in the Circuit Court by his Honour Judge Clarke who held that the damage suffered by the McLoughlins “was caused partly by the negligence of the defendant and the plaintiff.” He assessed damages at £3,800.00 and directed that such sum should be reduced by 10% by reason of McLoughlin’s negligence and that 90% should be payable by Mr. Gilroy.
From this decision Mr. Gilroy appealed to the High Court and on the 13th May, 1986, Lardner J. reversed the Circuit Court order and dismissed the action. The relevant part of the High Court order was as follows:
“IT IS ORDERED that this appeal be allowed and that the said Order of the Circuit Court be discharged and that the Civil Bill herein be dismissed.
AND IT IS ORDERED that the Defendant do recover from the Plaintiffs his costs and expenses of the Circuit Court proceedings and of this appeal when taxed and ascertained.”
While the Circuit Court proceedings were pending, Mr. Gilroy commenced the present action. In the statement of claim, which was delivered on the 17th December, 1985, Mr. Gilroy claimed that the collision had been caused by the negligence of Mr. McLoughlin, his servants or agents, and in his defence, delivered on the 12th June, 1986, Mr. McLoughlin denied negligence and pleaded that “the collision was caused entirely, or alternatively contributed to, by the negligence and breach of duty of the plaintiff.”
Mr. Gilroy delivered a reply on the 19th June, 1986, joining issue and denying contributory negligence, and on the 16th October, 1987, delivered an amended reply which added to the earlier reply the following paragraph:
“The defendant is estopped by reason of the decision of the High Court in the Circuit Appeal Record Number 205/1986 between Dennis McLoughlin and Don McLoughlin, plaintiffs, and Patrick Gilroy, defendant, from alleging negligence and breach of duty or contributory negligence and breach of duty as against the plaintiff.”
It is the issue raised by this paragraph that MacKenzie J. directed should be tried as a preliminary issue, the question to be tried being:
“Whether the defendant is estopped by virtue of the decision of the High Court in the Circuit Appeal Record Number 205/1986 between Dennis McLoughlin and Don McLoughlin, plaintiffs, and Patrick Gilroy, defendant, from alleging that the plaintiff herein was negligent or in breach of duty or was guilty of contributory negligence and breach of duty.”
Mr. Gilroy’s contention is that it was decided in the earlier proceedings that he was not negligent; the issue of whether he was negligent is accordingly res judicata and it follows that Mr. McLoughlin is estopped from raising it. Mr. McLoughlin on the other hand contends that Lardner J. did not make any finding in respect of negligence; all he found was that Mr. McLoughlin had not discharged the onus that lay on him as plaintiff to prove negligence, and it was on that ground that he dismissed the action.
It is necessary to consider first the nature of the estoppel on which Mr. Gilroy relies and then to see whether on the facts such an estoppel arises.
What is involved here is issue estoppel rather than action estoppel. In the latter form of estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a court of competent jurisdiction. It was defined as follows by Gibson L.J. in Shaw v. Sloan [1982] N.I. 393 at p. 398:
“It would seem that before estoppel of an issue can arise there must have been a final determination of the same issue in previous proceedings by a court of competent jurisdiction and the parties bound by this earlier decision must have been either the same parties as are sought in the later proceedings to be estopped or their privies.”
That case arose out of a collision between a motor cycle and a motor car. The plaintiff, who was the pillion passenger on the motor cycle, sued three defendants: the owner of the motor cycle (who was also the rider at the time of the collision), the driver of the car, and the owner of the car. In an earlier action in the County Court, brought by the third defendant against the first defendant, it had been held that the first defendant was solely responsible for the accident. The second and third defendants, relying on this decision, issued a third party notice against the first defendant claiming to be indemnified against the plaintiff’s claim, and claiming that the first defendant was estopped from disputing liability. It was held that the issue which arose on the third party notice was the same issue which had been determined by the County Court judge and accordingly would have given rise to an issue estoppel but as the driver had not been a party to the previous action and as there was no privity between the driver and the owner, no issue estoppel in fact operated in the case.
In the present case the parties to the action were both parties to the previous proceedings and are clearly bound by them. The fact that Mr. McLoughlin’s brother was also a party to those proceedings does not alter the position. The requirement is that the parties between whom the estoppel is claimed to operate should have been parties to the proceedings giving rise to the estoppel, and that requirement is satisfied here.
The decision in the earlier proceedings was also clearly a decision of a court of competent jurisdiction, so the only element in Gibson L.J.’s definition which remains to be considered is whether the issue raised by the plea in the defence, which I cited earlier, is the same issue as was determined in the previous proceedings.
In those proceedings Mr. McLoughlin claimed that he had suffered damage as a result of Mr. Gilroy’s negligence, so clearly the issue which the Court had to decide was whether Mr. Gilroy had been negligent in the sense of having been in breach of the duty of care he owed to Mr. McLoughlin and other third parties in the driving of his motor car. Mr. Gilroy says that that issue was decided in his favour as Mr. McLoughlin’s claim against him was dismissed and he was given his costs in both the Circuit Court and the High Court on appeal. Mr. McLoughlin on the other hand says that Lardner J. made no finding at all; that he dismissed the action on the sole ground that the onus of proof had not been discharged and that this did not amount to a finding that Mr. Gilroy had not been negligent. His counsel asked me to hear evidence of what Lardner J. had said in giving his extemporejudgment and I admitted such evidence on the authority of the decision of the Court of Appeal in England in Marginson v. Blackburn Borough Council [1939] 2 K.B. 426. In that case Lewis J., in the High Court, had refused to look at a shorthand note of the judgment of the County Court judge giving his reasons for his decision – the judgment being that relied upon as creating the estoppel – and Slesser L.J. commented upon this as follows at p. 437:
“In our view, however, Lewis J. was entitled to have regard to the reasons given by the learned county court judge, and we have not hesitated to avail ourselves of that assistance. We are dealing here not so much with what has been called estoppel by record, but with the broader rule of evidence which prohibits the reassertion of a cause of action which has been litigated to a finish – estoppel by res judicata. In such a case, the question arises, what was the question of law or fact which was decided? And for this purpose, it may be vital in many cases to consider the actual history of the proceedings. Thus, inRe Graydon [1896] 1 Q.B. 421, on a question whether a judgment of the county court constituted an estoppel, Vaughan Williams J. refers to an inference to be drawn from the observations of the learned county court judge when asked for leave to appeal; and in Ord v. Ord [1923] 2 K.B. 432, also on a question ofres judicata, references to proceedings before the judge were considered by Lush J., at p. 440. But even if there were no authority to show that this had in fact been done, we can see in principle no objection, when the question before the Court is what was actually decided at an earlier trial, to having recourse to that information which is to be derived from reading a record of the proceedings themselves.”
The evidence of Lardner J.’s judgment was given by Mr. McLoughlin’s solicitor, Mr. Greg Casey, who had taken a note in longhand of the judgment as it was being delivered. His evidence was that Lardner J. had said that liability depended on whether the traffic lights at the junction where the accident occurred were green in favour of Mr. McLoughlin or Mr. Gilroy; on the evidence there was inescapable conflict as to the state of the lights; the onus of proof was on the plaintiff to establish his case on the balance of probabilities; there was nothing to show whether one side was telling the truth or the other and therefore he had no alternative but to dismiss the plaintiff’s claim.
It is clear from this evidence that Lardner J. did not make any finding that Mr. Gilroy had not been negligent. What he decided was that Mr. McLoughlin had failed to discharge the onus of proving on the balance of probabilities that Mr. Gilroy had been negligent. Whether that amounts to the same thing as a finding that Mr. Gilroy was not negligent is a nice point but having regard to the view I have formed on other aspects of the case it is not necessary for me to decide it and I do not propose to do so.
I return then to the basic question which has to be considered, namely, whether the issue raised by the relevant plea in the defence is the same issue as was determined in the earlier proceedings.
The issue which the amended reply seeks to estop Mr. McLoughlin from raising is whether Mr. Gilroy was “negligent or in breach of duty or was guilty of contributory negligence and breach of duty.” It seems to me that the reference to breach of duty can be omitted as amounting to tautology so the question is was there in the previous proceedings a final determination of the issue as to whether Mr. Gilroy was negligent or guilty of contributory negligence.
In order to answer this question it is necessary to consider first what is the meaning of the plea in the defence that “the collision was caused entirely or alternatively contributed to by the negligence and breach of duty of the plaintiff.”In my opinion this is simply a plea of contributory negligence, in other words, a plea that the collision was caused or contributed to by the failure of the plaintiff to take such care as a reasonable man would take for his own safety. While the term “negligence” is used on its own in the plea, it should not be construed as meaning a breach of the duty of care owed by the plaintiff to the defendant as negligence in that sense would have no place in such a plea. It seems to me, accordingly, that the issue which the plaintiff is claiming that the defendant is estopped from raising is whether the collision was caused or contributed to by the failure of the plaintiff to take such care as a reasonable man would take for his own safety. So the question is whether this issue was finally determined in the earlier proceedings. When the question is put in this form, I think there is no doubt as to the answer. This issue was not merely not determined but would not even have been relevant in the earlier proceedings. The only negligence of Mr. Gilroy that was considered was negligence in the sense of a breach of the duty of care that he owed to Mr. McLoughlin. The issue of Mr. Gilroy’s contributory negligence did not and could not arise because Mr. Gilroy made no claim against Mr. McLoughlin in those proceedings and it is only if he had that it would have been appropriate for the issue of Mr. Gilroy’s contributory negligence to be raised. No doubt the same facts are frequently evidence of both negligence and contributory negligence so that it might be argued that in dismissing Mr. McLoughlin’s claim based on the alleged negligence of Mr. Gilroy, Lardner J. was necessarily finding that there was no contributory negligence on the part of Mr. Gilroy either, but it seems to me that the answer to this argument is that since the question of contributory negligence arises only where there is already a finding of negligence against the other party and since there was no such finding against Mr. McLoughlin it follows that the question of Mr. Gilroy’s contributory negligence could not have been considered by Lardner J.. He may have considered evidence which might support a finding of contributory negligence but he would have considered it solely for the purpose of deciding if Mr. Gilroy had failed in the duty of care he owed to Mr. McLoughlin. He would not have considered it in the context of deciding if Mr. Gilroy had failed to take the care for his own safety that a reasonable man ought to take, or in other words, for the purpose of deciding if Mr. Gilroy had been guilty of contributory negligence.
In short, I consider that if Lardner J. could be said to have determined any issue, the issue he determined was that of Mr. Gilroy’s negligence, not that of his contributory negligence, and since this latter issue was not determined Mr. McLoughlin is not estopped from raising it in his defence.
Mr. Gilroy’s counsel referred me to Gannon J.’s recent decision in Donohoe v. Browne [1986] I.R. 90 but in my opinion it is clearly distinguishable from the present case. The action there arose out of a collision between a motor cycle owned and ridden by the plaintiff and a motor car owned by the first defendant and driven by the second defendant. The first defendant had sued the plaintiff in the District Court for the damage to her car. The District Justice found each party equally to blame. The first defendant appealed his decision and on the appeal the Circuit Court judge held that the plaintiff was solely responsible for the collision. The order of the Circuit Court included an express finding that “the defendant was negligent and the plaintiff was not negligent.” In other words, a finding that the plaintiff in the High Court action was negligent and the first defendant was not negligent. On these facts Gannon J., held that the plaintiff was estopped from alleging that the defendants were negligent and he dismissed the action. What clearly distinguishes that case from the present is the express finding by the Circuit Court judge that the plaintiff had been negligent. In the present case there was no express finding at all.
I would answer the issue formulated in the order of MacKenzie J. by saying that the defendant is not estopped by virtue of the decision of the High Court in the Circuit Appeal Record Number 205/1986 between Dennis McLoughlin and Don McLoughlin, plaintiffs, and Patrick Gilroy, defendant, from alleging that the plaintiff herein was guilty of contributory negligence.

Cornec v Morrice

[2012] IEHC 376

JUDGMENT of Mr. Justice Hogan delivered on the 18th day of September, 2012
1. It might seem surprising that litigation presently pending in the District Court of Denver, Colorado (“the Colorado litigation”) concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults. This, nevertheless, is the background to the present application under s. 1 of the Foreign Tribunals Evidence Act 1856 (“the Act of 1856”).

2. While this application raises many difficult questions of evidence, procedure, conflict of laws and the scope of journalistic privilege, it is necessary first to set out the background to this application.
The background to the Colorado litigation
3. So far as can be gleaned from the Colorado pleadings, it seems that Ms. Morrice, a British national, is a petroleum geologist who, along with Mike Usher, a Belizean seismic surveyor, had long believed that Belize had (then undiscovered) oil reserves. To that end they set up a series of companies which are now controlled by International Natural Energy LLC (“INE”). A subsidiary of INE, Belize Natural Energy Ltd. (“BNE”) was granted a prospecting licence by the Belizean Government in January, 2003 and, to the surprise of industry observers, BNE discovered significant quantities of oil in June, 2005. Oil was then extracted and BNE commenced production and sale in January, 2006. In the words of Mr. Justice Bannister of the East Caribbean Supreme Court (Nevis Circuit) in SM Life Ventures v. Morrice, in a judgment delivered on July 16th, 2012, BNE has since “been astonishingly successful”. The decision in SM Life Ventures provides an invaluable guide to the background to the subsequent dissension within INE, since it concerns an oppression petition brought in the Nevis courts by the dissident shareholders in the company.

4. One of the other dissident shareholders is the present plaintiff in the Colorado proceedings, Jean Cornec. Mr. Cornec is a mining engineer who had previously worked in Belize identifying its strategraphy. Mr. Cornec and Ms. Morrice were among the five original promoters of the company and were among a handful of Class A shareholders. It would be tedious and unnecessary to chart the dissension which afflicted the company, but many of these difficulties appear to date back to 2002 when Ms. Morrice was introduced to Mr. Tony Quinn by another Class A shareholder, Ms. Shelia McCaffrey.

5. Although Mr. Quinn is not a party to the litigation (and, hence, not represented before me), it is fair to say that his career has engendered some controversy. While it would be inappropriate to dwell on these matters in circumstances where he was not represented before me, the evidence before me nonetheless suggests that he professes what many might regard as rather unorthodox religious views. His supporters appear to subscribe passionately to these views and often participate in what are described as “Educo” seminars run by Mr. Quinn and his close associates. In this regard and to anticipate somewhat, it may be observed that Ms. Tallant, an investigative reporter with the Sunday World newspaper has penned several articles in that newspaper in which she brands Mr. Quinn as a sham who exploits the religious sensibilities of the vulnerable for financial gain, often using hypnosis and other techniques subverting the will and reason. Mr. Cornec (and others) maintain that Ms. Morrice herself has come under what they see as the baneful influence of Mr. Quinn and that she herself has effectively gifted large amounts of stock to him, while also permitting him to use the assets of the company in a wholly unorthodox fashion. Thus, for example, Bannister J. found that some US$1.8m of INE money had been spent in the last few years on security and surveillance personnel, thus allowing Mr. Quinn to hire what the judge described as virtually his own “private army”.

6. Bannister J. also rejected the suggestion that Mr. Quinn was an original Class A shareholder or that he had been validly appointed to the board. It nonetheless seems clear that several members of the Board at least endeavoured to transfer some US$15m. worth of stock to Mr. Quinn in 2007. Bannister J. held that a 2007 operating agreement was invalid, since it trenched on the ownership rights of Class A shareholders and, furthermore, had stipulated that Class B shares were freely transferable only to other members who had completed one of Mr. Quinn’s Educo training courses. This is a classic example of oppression of minority shareholders, since it is impossible to see what legitimate reason there might be for such an eccentric – and there is, I fear, no other word for it – requirement.

7. Bannister J. also found that the company had operated what was described as a loan release programme, whereby INE lent the members funds to be set-off against future profits. This arrangement – unorthodox in itself – was found by the judge to have been operated in a highly partial and selective manner and was “designed to punish INE members of which or of whom Ms. Morrice or Mr. Quinn disapproved”.

8. This forms the general background to the Colorado litigation. In essence, the dissension in the company was damaging to the members. The minority objected strongly to Mr. Quinn’s involvement and considered that his presence as an eminence grise within the company dissuaded outside investment and damaged the share price. From their perspective, they felt that they had no option but to get out of a company which, while very successful, was nonetheless being operated by Ms. Morrice and Mr. Quinn in a partial and autocratic fashion. So far as Ms. Morrice was concerned, the minority – represented by Mr. Cornec – were dissatisfied and determined to cause trouble and there was little alternative but to buy them out.

9. This ultimately led to the agreement reached in August, 2008 whereby Ms. Morrice agreed to purchase Mr. Cornec’s shares in INE for a sum just under US$17.6m. This was financed by an immediate cash payment of $2m and a promissory note for just under $15.6. The loan notes were payable in 12 instalments. Ms. Morrice made two principal payments, but has made no further payments since October, 2008. To date, therefore, Mr. Cornec has received a sum in excess of $4.7m.

10. At the heart of Mr. Cornec’s claim, therefore, is a claim for breach of contract for a liquidated amount just under $13m., together with other related claims. For present purposes, however, what is most critical are the terms of Ms. Morrice’s counter-claim. In essence her case is that Mr. Cornec immediately violated the terms of the share purchase agreement in a material respect, thus entitling her to repudiate the agreement.

11. Critically, the agreement provided for a non-disparagement clause. Clause 5.4 of the Share Purchase Agreement accordingly provided that Mr. Cornec agreed that:-

“He will not in any way, costs to be made or otherwise disclose any disparaging comment, statement of communication about purchaser [Ms. Morrice] or any director or member of INE or their respective affiliates (a “Negative Remark”) either verbally or in writing to any person, entity or authority.”
The Share Purchase Agreement went on to provide that breach of the Clause is deemed to be a material misrepresentation and Clause 6.1.2 in particular provides that:-
“Purchaser may offset any amounts due from Seller to Purchaser under this Section 6 against payments due under the Note.”
Central to Ms. Morrice’s counterclaim, therefore, is the contention that, the non-disparagement clause notwithstanding, Mr. Cornec arranged or organised for critical comments to be made in the media and elsewhere aimed at herself, Tony Quinn and INE. Specifically, Ms. Morrice contends that Mr. Cornec’s attorney, Ms. Katrina Skinner, travelled to Ireland at his behest in November, 2008 and there met a number of individuals who were broadly antipathetic to Mr. Quinn and, by extension, to Ms. Morrice. Particulars were given in the pleadings as to the nature of these contacts from November, 2008 onwards. For present purposes it suffices to say that it is contended Ms. Skinner met with Mr. Garde and Ms. Tallant and that as a result of these contacts critical articles were published by Mr. Garde on the one hand and Ms. Tallant from the Sunday World, on the other.
12. This may be a convenient point to say something about Mr. Garde and Ms. Tallant. Mr. Garde is a director of a charity known as “Dialogue Ireland”. He has a particular interest in new religious movements, especially those where there is reason to suspect that undue psychological pressures or influence have been used over adherents.

13. Ms. Tallant is an investigative reporter with the Sunday World. As already indicated, she has written extensively about Mr. Quinn in that newspaper. Two articles in particular were the subject of some debate in the hearing before me. The first of these is from the 1st March, 2009, which contains a lengthy interview with a disaffected former follower of Mr. Quinn, Marie Lalor. Ms. Lalor contends that she was effectively indoctrinated into believing that Mr. Quinn was the reincarnation of Jesus Christ and that one of his closest followers was the reincarnation of Moses. She further contended that Mr. Quinn described memories of a previous life on the (mythical) island of Atlantis.

14. The second article was published on 6th September, 2009, and is perhaps more directly relevant to the present application. It is headed “Exclusive: ‘Messiah’ Appointed to Company Board by Gullible Disciples – Guru Tony Strikes Oil”,. Underneath the legend ran “Cult Leader “Muscles” in on Followers’ Fortune”. The article then went on to say:-

“Mucky Messiah Tony Quinn has struck oil and is on the verge of becoming a billionaire after muscling his way into the top of a company pumping thousands of barrels of black gold a week. Quinn is hoping he can join the ranks of the Texas barons after a team of his devoted followers appointed him as director of their company. But the controversial mind guru is now at the centre of a massive boardroom bust-up after his bizarre appointment and the influence he appears to have over his fellow directors. Quinn, who some followers believe is Jesus Christ, is facing allegations that he has muscled in on the company which was set up seven years ago by two avid followers of his Educo cult and that he is now creaming the profits for himself. Furious shareholders are also looking for answers about a golden handshake of $20m in free shares he was gifted when he was voted onto the board and whether or not he is now using profits to send to company associates on his own $60,000 a pop seminars. The fight over the oil company “International Natural Energy” (INE) has been brewing since 2007 when Quinn was appointed as director – two years after it struck oil in the impoverished Central American country of Belize. Incredibly, immediately after his appointment he announced on a Dublin stage that only “Eduocists” or his followers could become shareholders.”
The article continues in similar vein, along with quotations from unidentified shareholders questioning the circumstances in which Mr. Quinn came to be appointed as a director of the company. It then went on to give details of the Colorado litigation saying that:-
“When in 2005 the then 82 shareholders were informed that the company had struck high grade oil on its first ever drill, Quinn decided to take a second look at the company. At the time Sheila McCaffrey credited Quinn’s mind technology for the oil find, but since then the battle for control of the control of the company has turned nasty. McCaffrey is no longer a working director and Cornec is currently suing INE for more than $10m. he says he is owed. After agreeing to sell his cut to Morrice, INE are countersuing Cornec saying that a campaign of negative remarks directed at Quinn and Morrice has damaged the value of the company and its attempts to raise finance by selling the shares.”
15. This brings us to the heart of the present application. Essentially, Ms. Morrice contends that Mr. Cornec did not honour his side of the bargain and that he repeatedly violated the non-disparagement claim, not least by arranging for Ms. Skinner to come to Ireland in order to meet Mr. Garde and Ms. Tallant and, indeed, others who were hostile to her, Mr. Quinn and INE. To this end, therefore, Ms. Morrice contends that Mr. Garde and Ms. Tallant are relevant witnesses who ought to be deposed and that this Court should accordingly give effect to the letters rogatory issued by Judge Bronfin of the District Court of Denver on 31st May, 2012.
The nature of the application under the Foreign Tribunals Evidence Act 1856
16. The first issue which arises was already the subject of a ruling by me in the course of the proceedings, namely, the status of the original ex parte order. The present application comes before me formally as a motion on the part of Mr. Garde and Ms. Tallant to set aside an order made by me ex parte pursuant to s. 1 of the Act of 1856. The application is made ex parte precisely because that is the procedure contemplated by the Act of 1856 and Ord. 39, rr. 39-44 RSC. While I duly made the orders ought sought, I duly made it clear at the time that the order simply had a provisional status and that the moving party (Ms. Morrice) would carry the burden of making the application afresh in the event that the addressees of the order (Mr. Garde and Ms. Tallant) sought to have it set aside.

17. The Act of 1856 is, of course, a pre-Constitution statute which must, where necessary be read in a fashion which would make it conformable to the modern understanding of the requirements of fair procedures as prescribed by Article 40.3. It is absolutely clear that the courts cannot constitutionally make an order ex parte finally affecting the rights of the parties. An abundance of contemporary authority attests to this point: see, e.g., the judgment of Keane C.J. in DK v. Crowley [2002] 2 I.R. 744, that of Finlay Geoghegan J. in Chambers v. Keneflick [2005] IEHC 402, [2007] 3 I.R. 526 and my own judgments in Doyle v. Gibney [2011] IEHC 10 and Re Custom House Capital Ltd. (No.1) [2011] IEHC 399.

18. It was for this reasons that I indicated that the ex parte procedure did not and could not finally affect the rights of Mr. Garde and Ms. Tallant and the fact that an initial order was made in favour of Ms. Morrice created no presumption in her favour.

19. The power to grant international assistance via the letters rogatory is, of course, a discretionary one. Naturally, in the interests of the international judicial comity, this Court will endeavour to give assistance where at all possible to requests of courts from foreign states and, as Denham J. put it in Novell Inc. v. MCB Enterprises [2001] 1 IR 608, it should “be slow to refuse such an order.” Nevertheless, before any such order could properly be granted, it would be necessary to establish that (i) the evidence proposed to be taken is relevant to the foreign proceedings; (ii) the application is not oppressive; (iii) the grant of the request would not override any established privilege or protection available to the prospective witness and (iv) the evidence so taken on commission is itself admissible under the law of the requesting state. The applicant for such judicial assistance must satisfy all four of these conditions. I propose now to consider each of these conditions.
Is the evidence requested relevant to the foreign proceedings?
20. In my view, the evidence sought is, subject to one major qualification, clearly relevant to the Colorado proceedings. While the ultimate meaning and effect of the non-disparagement clause will be a matter for the Denver courts, on any view, it prevents Mr. Cornec and his agents supplying information which is critical of INE and its members to a journalist such as Ms. Tallant or a person in the position of Mr. Garde. There seems little doubt on the evidence but that, for example, Mr. Cornec’s attorney and agent, Ms. Skinner, travelled to Ireland for this purpose and that there were subsequent contacts (direct and indirect) between Mr. Cornec, Ms Skinner and others with Ms. Tallant and Mr. Garde. Thus, for example, e-mail correspondence which was exhibited in the proceedings is strongly suggestive of the fact that assistance was given to Ms. Tallant to enable her to write the story regarding the INE litigation and Ms. Morrice and Mr. Quinn which was published in September, 2009.

21. All of this suggests that Ms. Tallant and Mr. Garde are highly relevant witnesses to the Denver litigation so far as the counter-claim on the non-disparagement clause is concerned. Counsel for Mr. Garde, Mr. O’Tuathaill SC, argued that as Mr. Garde had only written about Mr. Quinn, the former’s evidence should not be regarded as relevant. This was because – or so Mr. O’Tuathaill SC argued – Bannister J. had found in his judgment in SM Life Ventures that the appointment of Mr. Quinn as a director was invalid, as was – it would appear – the allocation of Class A shares to him. Given that so far as Irish conflict of law rules are concerned, all matters concerning the validity of the appointment of officers and the transfer of shares fall to be determined by the court of the place where the company is domiciled, I am bound by these findings of Bannister J. in the East Caribbean Supreme Court. Nevertheless, it also seems clear from that judgment that Mr. Quinn remains a Class B shareholder – indeed, Bannister J. said as much – and, hence, a member of INE. While Mr. O’Tuathaill SC argued that it was not clear when Mr. Quinn acquired these shares, it seems evident that the transfer to Mr. Quinn pre-dated the 2008 agreement and is therefore prima facie covered by the non-disparagement clause.

22. While Mr. Garde and Ms. Tallant are relevant witnesses it must be observed that some of the questions contained in the letters rogatory were directed to inquiries about information supplied by Mr. Garde and Ms. Tallant respectively to Ms. Skinner.

23. However, the supply of information by either Mr. Garde or Ms. Tallant is not material to any possible breach of the non-disparagement clause and I would propose, in any event, to disallow these questions as irrelevant.
Oppression
24. Both Mr. O’Moore SC (for Ms. Tallant) and Mr. O’Tuathail SC (for Mr. Garde) argued that the making of these orders for judicial assistance would be oppressive of their clients. As Denham J. made clear in Novell, the court may decline to grant international judicial assistance on grounds of oppression. What, then, might constitute the oppression in question?

25. The oppression was said to take a variety of forms. So far as Ms. Tallant was concerned, Mr. O’Moore S.C. pointed to two defamation proceedings which Mr. Quinn had issued against the Sunday World arising (one must infer) from articles she had written. The first of the proceedings had been issued and served in 2009, but had been otherwise allowed to lie fallow. The second set of proceedings has apparently been issued in 2011, but has yet to be served.

26. Even if one assumes that these proceedings are still live – although I am inclined to agree with, counsel for Ms. Morrice, Mr. O’Callaghan S.C. who submitted that they should properly be regarded as dormant – I cannot see that their existence would in itself make the present application oppressive. I pass over for present purposes the fact that the proceedings are in the name of Mr. Quinn alone, given the closeness of the business relationship between himself and Ms. Morrice. The question, rather, is whether the very existence of the defamation proceedings would make it unfair for Ms. Tallant to be required to give evidence in aid of the Colorado proceedings.

27. I cannot conclude that it would. After all, the issues are fundamentally different ones, even if there is some overlap in the dramatis personae and the factual background. Here the simple question is whether Ms. Skinner (or others persons acting in concert with Mr. Cornec) met with Ms. Tallant with a view to imparting information critical of INE, Ms. Morrice or Mr. Quinn. The issues in the defamation proceedings are much more complex and would (so far as March, 2009 article was concerned) presumably traverse issues such as whether Mr. Quinn claims to be the reincarnation of Jesus or to have recollections of a past life on Atlantis. Any defamation proceedings concerning the September 2009 article would relate to many of the issues dealt with by Bannister J. in SM Life Ventures and thus would encompass the disputes involving the shareholders in INE.

28. This is fundamentally different, therefore, than the facts presented in Novell, a case where allegations of fraud were simultaneously being pursued against the respondents in proceedings both in Ireland and in Utah, with Denham J. concluding ([2001] 1 IR 608, 625) that it would:-

“In all the circumstances be oppressive to permit the applicant to examine the respondents in advance of the hearing of the fraud action against them in Ireland.”
29. As I have already indicated, I consider that the present case is fundamentally different, given the limited nature of the evidence sought to be tendered. Nor can it realistically be said that the present application represents some contrivance on the part of Ms. Morrice to secure this evidence as an indirect means of assisting Mr. Quinn in his defamation proceedings. While I agree that the application would have to be regarded as oppressive if that were her main motive in moving this application, I am nevertheless convinced that the present application is bona fide and is designed to secure the evidence of witnesses who can give relevant evidence in aid of the Colorado proceedings.
30. This general point was also made on the part of Mr. Garde, since it was said that there was such antipathy between himself and Mr. Quinn and his supporters (including Ms. Morrice) as would make the application oppressive. It is true that this antipathy is mutual and it is scarcely concealed. Yet this does not in itself make the application oppressive, if (as here) there are independent reasons (namely, the materiality and relevance of the evidence of the prospective witnesses) to justify the making of the application.

31. Mr. O’Tuathaill SC also emphasised that his client was an expert on religious cults and that it was oppressive to coerce an expert to give testimony where he did not freely consent to this procedure. It is true that in a leading English authority on the point, Seyfang v. G.D.Searle & Co. [1973] Q.B. 148, 152 Cooke J. agreed that the courts “will not as a general rule require an expert to give expert evidence against his wishes in a case where he has no connection with the facts or the history of the matter in issue”. That statement must, however, be understood in its proper context.

32. In that case the applicant was suing the manufacturers of contraceptive pills in the United States for negligence, claiming that she having developed thrombo-phlebitis as a result with horrific personal consequences. To that end the US courts had issued letters rogatory directed at securing the testimony of three medical experts, all of whom were based in the UK and who had done research for the UK Medical Research Council on the possible link between the administration of the contraceptive pill and thrombo-phelibitis.

33. While Cooke J. accepted that s.1 of the Act of 1856 applied to expert testimony, he concluded that it would be oppressive to require an expert to give testimony which might amount to a breach of confidence and “where the preparation of the evidence required of him would require considerable time and study” and in this regard the judge distinguished between witnesses as to fact and expert witnesses. While I respectfully agree with this analysis, it must nonetheless be recalled that Mr. Garde’s testimony is not here required qua expert. Rather his testimony is sought as a witness as to fact, whether Ms. Skinner (and others) spoke with him and briefed him on the involvement of Mr. Quinn in the affairs of INE. For these reasons, the principles articulated with regard to expert testimony articulated by Cooke J. in Seyfang do not apply to the present case.

34. For these reasons, therefore, I would reject the argument based on oppression.
Should Ms. Tallant be obliged to reveal her sources?
35. I now turn to the question of whether, as a matter of Irish law, a court could or would oblige a journalist to disclose her sources in the circumstances of the present case. Ms. Tallant objects in principle to being compelled to give evidence since it would (or might) disclose her sources. She further contends that the giving of evidence in this fashion under compulsion would inhibit her in her vital task of collecting and assembling material for future publication in her role as a journalist.

36. Before considering this argument, I should record that the parties were agreed that the three relevant Irish authorities on point were Re Kevin O’Kelly (1974) 108 I.L.T.R. 97, Mahon v. Keena [2009] IESC 64, [2010] 1 IR 336 and Walsh v. Newsgroup Newspapers Ltd. [2012] IEHC 353. I first propose to examine these three decisions and then to proceed to apply the principles contained therein to the facts of the present case.

37. The decision of the Court of Criminal Appeal in Re Kevin O’Kelly is one which has, I think, has not been fully understood in the intervening years. The background to this case was as follows. The late Mr. O’Kelly was a well-known RTE broadcaster of the highest personal integrity. He had then recently interviewed Sean MacStiofáin, the then soi disant “Chief of Staff” of an illegal organisation. This interview was then broadcast on RTE – as both interviewer and interviewee had intended – and, indeed, the main purpose of the interview was to allow Mr. MacStiofáin in his capacity as “Chief of Staff” to convey the views of the illegal organisation in question to the public at large.

38. At Mr. MacStiofáin’s subsequent trial for membership of that organisation, Mr. O’Kelly was asked to confirm Mr. MacStiofáin’s identity as the voice on the recorded tape. Mr. O’Kelly refused, citing journalistic privilege. The Special Criminal Court adjudged him to be in contempt of court and the Court of Criminal Appeal later heard an appeal against sentence only and, as Walsh J. stressed in his judgment, Mr. O’Kelly did not in fact even appeal his conviction.

39. Against that background the comments of Walsh J. regarding the scope of journalistic privilege with regard to their sources must be adjudged to be strictly obiter. But Walsh J. was surely correct in saying that, subject to an exception I will consider in a moment, no journalistic privilege could have attended Mr. O’Kelly’s evidence precisely because the open identification of Mr. MacStiofáin as “Chief of Staff” was itself an intrinsic part of the entire broadcast. As Walsh J. put it ((1974) 108 I.L.T.R. 97, 101):-

“In fact, the whole value of the publication of the interview from Mr. O’Kelly’s point of view depended upon the fact that the persons to whom the interview would be published would be made aware that the person interviewed was Mr. Sean MacStiofáin.”
40. Indeed, it may be observed in passing that a lawyer could not assert legal professional privilege were he or she to be placed in a somewhat analogous situation. Thus, in Cullen v. Wicklow County Manager [2010] IESC 49, [2011] 1 IR 152 the Supreme Court held that a solicitor on record for a party to litigation cannot assert legal professional privilege over the identity of her client, since to do so would be inconsistent with the very act of taking proceedings.
41. In these circumstances, a journalist could only possibly assert privilege where the identity of the person in the broadcast was itself confidential and withheld from the listeners or viewers, such as might occur where, for example, the interview was with the victim of a sexual assault. It is against that general background that the decision in O’Kelly must be understood and given these particular facts, the entire argument based on journalistic privilege was entirely misplaced to begin with.

42. While I have thus far loosely spoken of a journalistic privilege, there is, in fact, in strictness, no such thing. The protection is rather the high value which the law places on the dissemination of information and public debate. Journalists are central to that entire process, a point expressly recognised by Article 40.6.1.i of the Constitution itself when it recognises “the rightful liberty of expression” on the part of the press, albeit counter-balanced by the stipulation that this rightful liberty shall not be used to undermine “public order or morality or the authority of the State.” Perhaps these constitutional fundamentals have been overlooked at times, in part possibly because the syntax and drafting of this particular clause is (uncharacteristically) awkward given that the critical proviso is somewhat obscured by being placed within a subordinate clause. The Irish language version is actually much clearer than its English language counterpart, since the privileged status of the organs of public opinion is more elegantly described, not least given that it is set out in a stand alone sentence at the end of the relevant second paragraph.

43. Irrespective, however, of the languages used, the constitutional right in question would be meaningless if the law could not (or would not) protect the general right of journalists to protect their sources. This would be especially true of the particular example of that rightful liberty afforded by Article 40.6.1.i which is expressly enumerated therein – criticism of Government policy (“tuairimí léirmheasa ar bheartas an Rialtas”) – if no such protection were available.

44. But this right is not absolute or inviolable. In that respect, this protection differs in one key respect from legal professional privilege which, once applicable, cannot be overridden by a court by reference to some general balancing test based on the public interest. This, in essence, is what Walsh J. said in O’Kelly when he commented that:

“There may be occasions when different aspects of the public interest may require a resolution of a conflict of interests which may be involved in the disclosure or non-disclosure of evidence but if there be such a conflict, then the sole power of resolving it rests with the courts.”
45. Similar views were expressed by Fennelly J. in Mahon v. Keena ([2010] 1 IR 336, 363):-
“While the present case does not concern information about the commission of a serious criminal offences, it cannot be doubted such a case could arise. Who would decide whether the journalist’s source had to be protected? There can be only one answer. In the event of conflict, whether in a civil or criminal context, the courts must adjudicate and decide, while allowing all due respect to the principle of journalistic privilege. No citizen has the right to claim immunity from the processes of the law.”
46. Yet the public interest in ensuring that journalists can protect their sources remains very high, since journalism is central to the free flow of information which is essential in a free society. This is all underscored and tacitly complemented by the entire constitutional edifice, such as the democratic nature of the State (Article 5); the accountability of the executive branch to the Dáil (Article 28.4.1) and the provisions in relation to elections and referenda. I may venture here to repeat my comments in Doherty v. Referendum Commission [2012] IEHC 211 to the effect that the referendum process presupposes that the citizenry “will engage in robust political debate so that the forces of deliberation will prevail over the arbitrary and irrational so that, in this civic democracy, reasoned argument would prevail in this triumph of discourse”. If journalism and the media did not enjoy at least a general protection in respect of their sources, that robust political debate – a sine qua non in any democratic society – would be still born. Only the naïve would suggest otherwise.
47. In passing, it might be observed that while Article 10ECHR does not in terms privilege the media in the same way as Article 40.6 does, yet the importance of press freedom has been a cornerstone of the jurisprudence of the European Court of Human Rights since at least the judgment in Sunday Times Ltd. v. United Kingdom (1979) E.H.R.R. 1 and confirmed in ringing terms in Goodwin v. United Kingdom (1996) 22 EHRR 123, 143. The protection of journalistic sources is, subject to appropriate exceptions, accordingly, regarded as a core value protected by Article 10ECHR.

48. This is perhaps a convenient place to consider the decision of the Supreme Court in Mahon v. Keena, where the general extent of the Article 10ECHR right post-Goodwin on the part of journalists to protect their sources was expounded. All parties were agreed that in the light of the Supreme Court’s subsequent decision in McD. v. L. [2009] IESC 81, it must be acknowledged that Article 10ECHR is not, as such, directly effective in Irish law, but rather has effect only under the conditions actually specified in the European Convention of Human Rights Act 2003 (“the Act of 2003”). Additionally, as a consequence of the Supreme Court’s decision in Carmody v. Minister for Justice and Equality [2009] IESC 71, [2010] 1 ILRM 157 this Court is first required to examine the question presented for resolution under the terms of the Constitution. As Murray C.J. noted in Carmody, is only that in the event that the Constitution cannot avail the litigant who pleads that his or her constitutional rights have been infringed that the Court can then turn to a consideration of the position under the Act of 2003.

49. While this is the sequence which is prescribed in such cases by Carmody, in truth it hardly matters in this case, since the overlap between the two documents with regard to the role of the media is virtually a complete one, even if allowance is made for the fact that, unlike Article 40.6.1, the text of Article 10 ECHR does not actually seek to confer on the media a special or privileged position in terms of public debate or in criticism of government policy. In both cases, the approach is the same: has the case for the restriction on or overriding journalistic privilege – I am here returning to the convenient, if slightly inaccurate, shorthand – been convincingly established?

50. In Mahon the issue was whether the two Irish Times journalists in question could claim privilege from non-disclosure in respect of a document which originally emanated from the Mahon Tribunal raising questions about the finances of the then Taoiseach and suggested that he had received certain payments in an irregular manner. This document had been sent to them anonymously and on an unsolicited basis, but it formed the basis of a leading story in The Irish Times on 21st September 2006. The publication of that story certainly engaged the principle of criticism of Government policy and it is difficult to think of anything more central to a consideration of the public interest in publication.

51. The journalists in question had, however, destroyed the document lest its production might assist in identifying the source. This was the single factor which this Court considered had weighed heavily against the journalists when they sought to invoke journalistic privilege to resist the making of orders compelling them to assist the Tribunal in identifying the provenance of the document in question. The Supreme Court disagreed, holding that the case for disclosure had not been “convincingly established” (to use the language of Goodwin). As Fennelly J. put it, where the source was anonymous, the benefit from any disclosure a journalist might be compelled to make is speculative at best.

52. This brings me to a consideration of the last of the three cases, Walsh v. News Group Newspapers Ltd. [2012] IEHC 353. The plaintiff in that case is very prominent in popular music circles and he has achieved a near iconic status as a judge of emerging musical talent in a highly acclaimed television series. He sued for defamation following the publication of an article which (falsely) asserted that he had sexually assaulted a young man in a Dublin nightclub. It was not disputed but that the allegations were made by a Mr. Watters and that they were entirely false.

53. More disturbingly, it then appeared that a journalist attached to the defendant newspaper had offered financial inducements to Mr. Watters if he agreed to make a complaint to Gardaí. When the plaintiff sought discovery of all contacts between the journalist and Mr. Watters, the newspaper confirmed that Mr. Watters was not a source. O’Neill J. accepted that newspaper sources generally enjoyed protection in the light of the decision in Mahon v. Keena. He went on to observe:-

“If Mr. Watters is not a journalistic source and if his identity is well established, as it is, the only basis, in my opinion, upon which journalistic privilege in respect of communications between the defendants and Mr. Watters could rest would be if it were shown that a disclosure of the content of the communications between Mr. Watters and the defendant could lead to the disclosure of another source either in respect of the story the subject matter of these proceedings or other investigations conducted by the defendants’ journalists. Thus, discovery should be made in respect of communications between the defendants and Mr. Watters unless the defendants can assert privilege on the basis that these communications will disclose another source. If necessary, the court can inspect these documents to exclude from discovery documents leading to the identification of other sources.”

Should the Court order disclosure where the sources have been identified or least are identifiable?
54. This brings us directly to the critical question: should the Court order Ms. Tallant to give evidence in circumstances where it is more or less accepted who the identity of her sources are, or, at the very least, that their identity can be discerned from the material exhibited in both the Colorado proceedings and in the present application. Ms. Tallant has, in fact, sworn an affidavit in the Colorado proceedings in June 2010 in which she admitted that Ms. Lalor was her source in respect of the first article. So far as the second article is concerned, Ms. Tallant stated:-
“The first article I wrote about Mr. Quinn’s involvement in International Natural Energy (“INE”) was September 6, 2009. My source for this story was a group of Irish investors in INE who were upset about Mr. Quinn’s involvement in INE. Jean Cornec was not a source for this story.”
55. While Mr. Cornec may not have been a source for this story, there is considerable evidence which suggests that Ms. Tallant has met with other persons who are associated with Mr. Cornec in connection with the publication of material pertaining to INE. Such persons would seem to include Mr. Cornec’s wife, Ms. Frothingham, Ms. Skinner, Ms. Lalor and Ms. Lalor’s son, Mr. Fennelly. Thus, for example, among the correspondence discovered in the Colorado proceedings (and exhibited for the purposes of the present application), is an email from Ms. Lalor to Ms. Skinner on 31st August, 2009, where she states:-
“…Nicola [Tallant] coming down tomorrow so maybe we should call you as you need to brief her before she does that article.”
56. Mr. Cornec, Ms. MacCaffrey and Ms. Frothingham are all listed as recipients of this email. On the 5th September 2009 Ms. Skinner replied to Ms. Lalor (which email was also copied to Mr. Cornec) to the effect that she should wait “until the oil story comes out” and that “this weekend’s story is going to be crazy…just crazy”. This is plainly a reference to the article which Ms. Tallant subsequently authored on 9th September, 2009, dealing with the affairs of INE, Ms. Morrice and Mr. Quinn and of which Ms. Skinner obviously had advance knowledge. All of this strongly suggests that Ms. Tallant was briefed by Ms. Lalor and Ms. Skinner in advance of the September, 2009 article dealing with the affairs of INE and that Mr. Cornec was fully aware of these developments.
57. Against that background Mr. O’Callaghan SC argued forcefully that the jurisprudence from Goodwin onwards merely concerned the identification of sources and that once the sources had been so identified, the privilege simply lapsed. I would, however, incline to approach the matter in a different way and, following the analysis found in the judgment of Fennelly J. in Mahon, I would prefer to weigh the competing interests of the parties before arriving at a conclusion.

58. In the first place, Ms. Tallant has a strong interest in publishing material concerning Mr. Quinn and the affairs of INE. If, as she maintains, Mr. Quinn holds unorthodox religious views and is effectively the leader of a religious cult which has used psychological techniques as a means of controlling gullible adherents, then – to use the language of Article 40.6.1 – the media are clearly entitled to educate public opinion in this regard. This is perhaps especially true if Mr. Quinn were to have access to enormous funds via what appears to be the largesse of some of the founding members of INE.

59. Second, while Ms. Tallant’s evidence would be plainly relevant to the Colorado proceedings, it should be remarked that such evidence is essentially confirmatory of evidence already available to Ms. Morrice through the US depositions and discovery process. In other words, Ms. Morrice already knows that Ms. Skinner and Ms. Lalor spoke with Ms. Tallant shortly in advance of the September, 2009 article. It would be unrealistic to suggest that these discussions did not concern the affairs of Ms. Morrice and Mr. Quinn, thus potentially triggering the application of the non-disparagement clause. Given that this avenue is already open to Ms. Morrice – and she has already successfully availed of it – this weakens the case for disclosure on the part of Ms. Tallant as her evidence – while undoubtedly helpful and confirmatory of other evidence – cannot be said to be essential.

60. Third, it may be recalled that the Colorado proceedings merely involve commercial proceedings, albeit for very significant sums of money. This is not to take from the intrinsic importance of these proceedings, but the public interest in disclosure is not as compelling as would have been the case, for example, where the potential innocence of a third party was at stake in criminal proceedings (cf. here by analogy the comments in this regard of Hardiman J. in Howlin v. Morris [2005] IESC 85, [2006] 2 IR 324).

61. Fourth, it cannot be said that there is any ex ante distinction between the protection of the source on the one hand and the contents of what the source disclosed on the other. In some cases – perhaps a majority – the source will wish to have their identity protected. In other instances, the source will wish to have the contents of what they actually said protected, even if they been identified as a source for the article. In both cases, the public interest in protecting the journalist from compelled disclosure is very high, since the exploration of the contents of any discussions with the source also has the ability significantly to hamper the exercise of freedom by the journalist in question.

62. Moreover, unlike the situation in Walsh, the letters rogatory are directed to communications between the journalist and her sources. By contrast, in Walsh the complainant who had made the false allegation had been publicly identified and was not a source. Furthermore, Mr. Walsh’s interest in vindicating his good name in the wake of a malicious allegation was exceptionally high.

63. Weighing all these factors, I am not persuaded that the case for compelling Ms. Tallant to give evidence has been, in the words of the European Court in Goodwin, “convincingly established.” Given that the questions posed in the letters rogatory inevitably probe the identity of her sources and the information conveyed to her by those sources as part of a core journalistic activity in respect of which she could properly decline to answer if those questions were posed to her in that form and in those circumstances in an Irish court, I would accordingly decline to give effect to the letters rogatory so far as Ms. Tallant is concerned.

64. Here it may be noted that s. 5 of the Act of 1856 preserves the privileges and protections otherwise available to the witness in purely domestic proceedings. Given the circumstances of the present case, as Ms. Tallant could invoke the protections afforded by Article 40.6.1 (and, for that matter, were it necessary to do so, Article 10 ECHR) to resist questioning directed to identifying the contents of information supplied to her as a precursor to writing the articles in question, it follows equally that she cannot be compelled to do so by the enforcement of the letters rogatory.
Whether the court should order Mr. Garde to give evidence
65. I now turn to the position of Mr. Garde. While Mr. Garde is not a journalist in the strict sense of the term, it is clear from that his activities involve the chronicling of the activities of religious cults. Part of the problem here is that the traditional distinction between journalists and laypeople has broken down in recent decades, not least with the rise of social media. It is probably not necessary here to discuss questions such as whether the casual participant on an internet discussion site could invoke Goodwin-style privileges, although the issue may not be altogether far removed from the facts of this case.

66. Yet Mr. Garde’s activities fall squarely within the “education of public opinion” envisaged by Article 40.6.1. A person who blogs on an internet site can just as readily constitute an “organ of public opinion” as those which were more familiar in 1937 and which are mentioned (but only as examples) in Article 40.6.1, namely, the radio, the press and the cinema. Since Mr. Garde’s activities fall squarely within the education of public opinion, there is a high constitutional value in ensuring that his right to voice these views in relation to the actions of religious cults is protected. It does not require much imagination to accept that critical information in relation to the actions of those bodies would dry up if Mr. Garde could be compelled to reveal this information, whether in the course of litigation or otherwise. It is obvious from the very text of Article 40.6.1 that the right to educate (and influence) public opinion is at the very heart of the rightful liberty of expression. That rightful liberty would be compromised – perhaps even completely jeopardised – if disclosure of sources and discussions with sources could readily be compelled through litigation.

67. It follows, therefore, that Mr. Garde has a similar interest to that of Ms. Tallant in ensuring that his sources are likewise protected. Of course, just as with Ms. Tallant, he is plainly a relevant witness to the Colorado litigation. Ms. Skinner (and others associated with Mr. Cornec) also seems to have either met with or corresponded with him. But his evidence would also be substantially confirmatory of material already in possession of Ms. Morrice. There are, moreover, no strong competing arguments to the contrary which would weigh against the public interest in ensuring that Mr. Garde is free from disclosing his sources or the contents of these discussions.

68. Applying, in essence, therefore, the same balancing test as already applied in the case of Ms. Tallant, I would hold that Mr. Garde is entitled to assert an immunity from disclosure in the present case.
The position of journalists under Colorado law
69. In view of the conclusions I have just reached, it would not seem to me to be necessary or desirable that I should express a view on the question of foreign law presented before me, namely, the construction of Colorado’s press freedom statute and whether Ms. Tallant and Mr. Garde would have been able to avail of it in order to assert a journalistic privilege conferred by statute.
Conclusions
70. In conclusion, therefore, I respectfully decline to give effect to the letters rogatory for the reasons stated in this judgment.

Approved: Hogan J.

Walsh v News Group Newspapers Ltd

[2012] IEHC 353

JUDGMENT of O’Neill J. delivered on the 10th day of August, 2012
1. In this motion, the plaintiff seeks discovery of documents from the defendants. The defendants, in opposing the entirety of the discovery sought, rely upon the journalistic privilege of non-disclosure of sources of information. Because the defendants’ opposition was in respect of all of the discovery sought on this particular ground, the hearing of this motion was treated as also the hearing of the defendants’ claim to privilege in respect of all of the documents sought to be discovered.

2. In the action, the plaintiff sues the defendants for damages, including aggravated and exemplary damages for defamation arising out of an article published in the ‘Sun’ newspaper on 23rd June 2011, and also the same material published by the defendants on their website, www.thesun.co.uk on the same date.

3. The article in question was headlined “LOUIS PROBED OVER ‘SEX ATTACK ON MAN IN LOO”‘ The article in the newspaper and the information published on the website were to the effect that the plaintiff was being investigated by the police in respect of a claim by a 24-year old man that the plaintiff had indecently or sexually assaulted him in the toilet of a Dublin nightclub. In the article in the newspaper and in the information published on the website, there was included a denial by the plaintiff of these claims and an assertion that the plaintiff would fully cooperate with any police investigation.

4. Not long after these publications, it emerged that the allegations made in respect of the plaintiff were false and the person who made these allegations, a Mr. Leonard Watters, was prosecuted in respect of making these false allegations. The defendants unreservedly accept that the allegations against the plaintiff were false and that the plaintiff has been completely exonerated in this respect.

5. In the particulars supporting the plaintiffs claim for aggravated and/or exemplary damages, as set out in the plaintiffs statement of claim, the plaintiff alleges that on 15th June 2000, a journalist employed by the defendants, Joanne McElgunn, met Mr. Watters in the Newbridge Hotel, Navan, bought him dinner, offered him a sum of money on behalf of the ‘Sun’, if he agreed to make a complaint to An Garda Síochána about being assaulted by Mr. Watters in the toilet of a Dublin nightclub. Thereafter on the same day, it is alleged that Joanne McElgunn travelled with Mr. Watters to Pearse Street garda station so that he could make the agreed complaint against the plaintiff, which he did. Subsequently, on 20th June 2011, Mr. Watters provided a written statement of complaint to An Garda Síochána setting out the alleged sexual assault. Having made this written statement, the plaintiff alleges that Mr. Watters again met Joanne McElgunn and was encouraged or enticed by her to repeat the false statements to her for publication in the ‘Sun’. The plaintiff further alleges that Joanne McElgunn paid Mr. Watters the sum of €700 and promised to make further payments after the story was printed. It is alleged by the plaintiff that on a later date, Mr. Watters was booked into a Dublin hotel in order to secure further false statements from him concerning the plaintiff and to ensure that he did not take his false story to rival publications. The plaintiff says that full and detailed particulars of further payments by the defendants to Mr. Watters could not be pleaded with certainty without discovery of documents and interrogatories.

6. The plaintiff also pleads that the defendants falsely misrepresented to the plaintiff that it had received information from An Garda Siochana pertaining to the complaint made by Mr. Watters, and specifically, that on 22nd June 2011, Gordon Smart of the defendants informed Sarah Lee, a representative of the plaintiff, that the defendant had received from An Garda Siochana information concerning the allegation made against the plaintiff, and on the same date, that Dominic Mohan, Editor of the ‘Sun’ newspaper, had informed Sarah Lee that the defendants had received “guidance from the police throughout the story”. Further, that on 23rd June 2011, Gordon Smart had informed Sarah Lee that the information in the defendants’ article had come from the police via the ‘Sun’s crime correspondent. The plaintiff says that these representations were made by the defendants deliberately so as to misrepresent to the plaintiff that the source of the information was a member or members of An Garda Síochána, thereby suggesting that members of An Garda Síochána had breached s. 62 of the Garda Síochána Act 2005, and had thereby committed a criminal offence.

7. In their defence delivered on 24th January 2012, the defendants admit publication of the article in question in the newspaper and on the defendants’ website. They deny that the article in its ordinary natural meaning, had the meaning contended for by the plaintiff or the innuendo suggested by the plaintiff, and they say that true meaning of the words used was that a person had made an allegation against the plaintiff, which was sufficiently serious to warrant an investigation by An Garda Síochána or, alternatively, that they were reasonable grounds to investigate the allegations that the alleged victim had made, under circumstances where the same were the subject matter of an investigation by An Garda Síochána. The defendants plead the article was a fair and reasonable publication on a matter of public interest for the purposes of s. 26 of the Defamation Act 2009, as interpreted in the light of the provisions of the European Convention of Human Rights Act 2003. The particulars in support of this plea are to the effect that given the seriousness of the nature of the complaint against the plaintiff, and the plaintiffs standing as a public figure, the subject matter of the article was one of public interest; that the defendants published the article in good faith in circumstances where a serious allegation of a criminal nature had been made against the plaintiff; that the allegation of assault was one which was alleged to have occurred in a place to which members of the public had access; that the Garda Siochana did investigate the complaint which subsequently transpired to be false, a fact which was wholly and unreservedly accepted by the defendants. They say that the defendants contacted the plaintiff prior to publication to inform him of the allegation and that the plaintiff was made fully aware of the nature of the allegation; that the plaintiff commented on the allegation through his personal representative and that the plaintiff’s rejection of the allegation was prominently and repeatedly set out in the article. They say that the article itself was balanced in tone, contained the plaintiff’s denials and that the article made a clear distinction between suspicions, allegations, and facts and that the defendants investigated the assertions and allegations concerning the plaintiff to the best of their ability.

8. The defendants, further in the alternative, rely on the defence of qualified privilege and on the provisions of the Constitution, in particular, Articles 40.3 and 40.6.1 as interpreted in the light of the provisions of the European Convention on Human Rights Act 2003, and they also rely upon s. 17 and 18 of the Defamation Act 2009. The defendants contend that they are entitled to take advantage of the defence of consent pursuant to s. 25 of the Defamation Act 2009, and in this respect they say that prior to the publication of the article, the plaintiff was contacted by the defendants and told of the allegation being made against him, and in response, the plaintiff engaged the services of a PR agency who produced a statement on behalf of the plaintiff rejecting the allegations and emphasising the plaintiff’s willingness to cooperate with any investigation carried out by An Garda Síochána, and the plaintiff insisted on his statement being included in full in the article, which was done. The defendants contend that in consenting to the publication of the plaintiff’s rebuttal of the allegations against him, the plaintiff was necessarily consenting to the publication of the existence of these allegations.

9. The defendants deny all of the particulars set out by the plaintiff, grounding a claim for aggravated or exemplary damages and the defendants deny that claim.

10. The discovery sought, as set out in the plaintiff’s notice of motion, is as follows:

“(a) An order compelling the defendant herein to make discovery on oath of all documents in its power, possession or procurement following within the following categories:
1. All documents in the power, possession or procurement of the defendants, its servants or agents, including but not limited to Joanne McElgunn, evidencing and/or referencing and/or identifying and/or referring to the investigation conducted by the defendant, its servants or agents into the assertions and allegations concerning the plaintiff made by Leonard Watters.

2. All documents in the power, possession or procurement of the defendants, its servants or agents, including but not limited to Joanne McElgunn, evidencing and/or referencing and/or identifying and/or referring to and/or suggesting any payments made or offer of payments made by or on behalf of the defendants or its servants or agents to Leonard Watters.

3. All documents in the power, possession or procurement of the defendants, its servants or agents, including but not limited to Joanne McElgunn, evidencing and/or referencing and/or identifying and/or referring to any expenses claimed by Joanne McElgunn from the defendants between 15th June 2011 and 15th December 2011 (inclusive).

4. All documents in the power, possession or procurement of the defendants, its servants or agents, including but not limited to Joanne McElgunn, evidencing and/or referencing and/or identifying and/or referring to the booking of a hotel room for Leonard Watters in Dublin on any date between 15th June 2011 and 23rd June 2011 (inclusive).

5. Bank statements in the power, possession or procurement of the defendants and/or Joanne McElgunn evidencing and/or referencing and/or identifying and/or referring and/or recording cash withdrawals of €200, or more, in Ireland between 15th June 2011 and 23rd June 2011 (inclusive) from bank accounts in the name of Joanne McElgunn or in the name of the defendants, or in the name of any company or person who is holding an account for the benefit or on behalf of the defendants.

6. (a) All test messages and/or emails and/or records of telephone calls between Joanne McElgunn and Leonard Watters between 14th June 2011 and 23rd June 2011 (inclusive);

(b) all text messages and/or emails and/or records of telephone calls between Joanne McElgunn and servants or agents of the defendants evidencing and/or identifying and/or referring to Leonard Watters (whether by name or otherwise) and/or Joanne McElgunn’s interaction with Leonard Watters between 14th May 2011 and 23rd June 2011 (inclusive)

7. All documents in the power, possession or procurement of the defendants, its servants or agents evidencing and/or referencing and/or identifying and/or referring to any contact between the defendants, its servants or agents and any member of An Garda Siochana between 15th June 2011 and 23rd June 2011 (inclusive) in respect of the publication of the article about the plaintiff

8. All documents in the power, possession or procurement of Joanne McElgunn and/or Michael McEniffe, Editor of the Irish edition of the ‘Sun’, and/or Gordon Smart, journalist with the ‘Sun’ newspaper and/or Dominic Mohan, Editor of the ‘Sun’ newspaper, evidencing and/or referencing and/or identifying and/or referring to information available to them between 15th June 2011 and 23rd June 2011 (inclusive) concerning the preparation and/or investigation and/or publication by the defendants of the article about the plaintiff”

11. It is accepted by the defendants that all of the categories of documents sought, apart from Category 7 relating to contracts between the defendants and members of An Garda Síochána are relevant to the contested issues in the action. I am quite satisfied from the nature of the documents sought by the plaintiff that discovery of these documents could be of considerable advantage to the plaintiff in advancing his case, particularly for aggravated and/or exemplary damages and also in attacking the defendants’ defence, both in respect of reasonable publication pursuant to s. 26 of the Defamation Act and the defence to the plaintiff’s claim for aggravated and/or exemplary damages.
12. In an affidavit sworn on 11th May 2012, by Paul Clarkson, Deputy Editor of the ‘Irish Sun’, the following is averred at paras. 3,4 and 5:

“3. Before writing the article, the defendant carried out an investigation, which involved talking to several people in confidence about the said complaint as well as gathering other background information. Mr. Watters, who has since been named as the person who made the complaint against the plaintiff, also confirmed to the defendant that an incident happened. Mr. Watters was not named as a source in either the article or elsewhere. The details of all conversations in relation to the article were in confidence and understood to be protected by journalistic privilege, which the defendant is asserting and maintaining. It is in the public interest that people should be able to approach journalists and impart information in confidence, on the understanding that this information should remain confidential. The order sought by the plaintiff would interfere and jeopardise this important function.
4. I say that the discovery sought in reality is seeking to pierce journalistic privilege. The documents that are covered by discovery sought include notes, phone records and financial records. The disclosure of these documents would in turn disclose details of the confidential discussions had in relation to the article, which in turn runs the risk that sources and the confidential information that was given to the defendant may be disclosed.

5. The discovery sought also encompasses documents that may tend to identify sources and confidential information in relation to other articles in ongoing investigations. In this regard, I say that it is of crucial importance that the defendant’s sources remain confidential. I say that the defendant regularly reports crime stories, which naturally involve extremely sensitive information. In all cases, the protection of sources is vital, not only to the defendant’s ability to do so, but also to protect the safety of those people who give the defendant information.”

13. In a reply to a notice for particulars dated 24th April 2012, the following was said by the defendants at para. 2(ii):
“The plaintiff was the subject matter of a complaint by Mr. Watters to An Garda Síochána Mr. Watters also confirmed to the defendant that the alleged incident had occurred. It is now accepted that Mr. Watters was not being truthful in this regard.”
14. The issues that therefore fall to be determined in this application are whether journalistic privilege applies to all of the categories of discovery sought and whether or not the documents sought in Category 7 are relevant to the issues in the action.
15. Journalistic privilege is now firmly established in our legal jurisprudence, largely resulting from Article 10 of the European Convention on Human Rights, which is in the following terms:

“1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

16. In the case of Mahon v. Keena [2010] 1 IR 336, relied upon heavily by Mr. Compton for the defendant, Fennelly J., having reviewed the judgments of the European Court of Human Rights on the subject of journalistic privilege, the learned judge quoted the following passage from the case of Goodwin v. United Kingdom [1996] 22 EHRR 123, to illustrate the ECHR approach to the question of journalistic privilege:
“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest …”
17. In his judgment, Fennelly J. says the following commencing at para. 71:
“71. The European Court of Human Rights has been at pains to emphasise that the right to freedom of expression is not unlimited. It usually states … that the press must not ‘overstep certain bounds’. The court has said that ‘article 10 does not … guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern’. For example, it may be necessary, depending on the circumstances, to balance an individual’s right to private and family life guaranteed by article 8 of the Convention. Member states have a ‘certain margin of appreciation in assessing whether’ there is a need for a restriction.
72. Nonetheless, the court constantly emphasises the value of a free press as one of the essential foundations of a democratic society, that the press generates and promotes political debate, informs the public in time of elections, scrutinises the behaviour of governments and public officials and, for these reasons, that persons in public life must expect to be subjected to disclosure about their financial and other affairs, to criticism and to less favourable treatment than those in private life. Generally, therefore, restrictions on freedom of expression must be justified by an ‘overriding requirement in the public interest’.

73. One of the public interests recognised by article 10.2 as potentially justifying a restriction on the exercise of freedom of expression is ‘preventing the disclosure of information received in confidence’. It is cases concerning this precise issue that are the most relevant to the present appeal. Two cases deserve careful consideration.”

18. Thereafter, the learned judge went on to consider the cases of Fressoz and Roire v. France [2001] 31 EHRR 28, and the aforementioned Goodwin v. the United Kingdom.
19. Mr. Compton relied upon this line of authority to submit that the privilege against disclosure applied not just to the identification of a particular source, but also to the content of the confidential information given. He submitted it was made clear in all of these cases before the European Court of Human Rights and the Mahon v. Keena decision, that the public interest which is protected is not the journalist or specifically the identity of the source, but rather, it is the function of journalism itself that it protected by the privilege, which necessarily means that the identity of the source must be protected and also, he submitted, the content of the information given. In this respect, he relied upon the following passage from the judgment of Fennelly J. in Mahon v. Keena at para. 98, p. 365:

“Counsel for the tribunal submitted, that the relationship of trust and confidence between the journalist and the source which is the basis of the journalist’s privilege was absent where the source was anonymous. There has been some discussion in the United States of theories of privilege: – is it there to protect the source or the journalist? I do not find any such notion in the European case law, which seems to proceed on a functional theory: is there a pressing social need for the imposition of the restriction?”
20. I would readily agree with Mr. Compton that the interest which is identified as protected by journalistic privilege is the proper functioning of journalism, namely, that there is a free flow of information from the public to journalists which is not inhibited or “chilled’ by the prospect that the source will be disclosed. Implicit in all of this is that the risk to the proper functioning of journalism is disclosure or identification of the person supplying the information. Ordinarily, information supplied will end up published; thus, per se, it could not be said that the content of the information enjoyed privilege from disclosure. If, however, the content of the information which, necessarily, was not published, could lead to the identification of the source, then it would seem to me that it too must enjoy the privilege from disclosure, as otherwise, the overall purpose of the privilege would fail.
21. Whilst journalistic privilege is there to protect the proper functioning of journalism, the allegations made by the plaintiff in these proceedings relative to the claim for aggravated or exemplary damages, if true, could well merit the description of improper journalism. The purpose of the privilege is to ensure that the flow of information from the public to journalists is preserved. It could hardly be contended that the offering of financial inducements to members of the public to obtain information should benefit from the same privileged protection. However, in this effect (if any) the offering of financial inducements would have in the application of journalistic privilege to other sources. For the reasons set out hereunder, which lead me to conclude, apart from any consideration of financial inducement, that journalistic privilege does not apply to communications between Mr. Watters and the defendants’ journalists, it is also unnecessary for me to consider the effect the alleged financial inducements to Mr. Watters might have on the application of journalistic privilege to the defendants’ communications with him.

22. The position of Mr. Watters is pivotal to the outcome of this application. In the affidavit sworn by Paul Clarkson at para. 3 as quoted above, it is said that Mr. Watters confirmed to the defendants that an incident happened. Mr. Clarkson goes on to say that Mr. Watters was not named as a source in the article or elsewhere.

23. For the plaintiff, it was submitted by Mr. O’Callaghan S.C. that at all times, Mr. Watters has been identified and therefore no journalistic privilege can attach to communications between the defendants and him. In para. 3 of his affidavit, Mr. Clarkson seems to exclude Mr. Watters as a source in using the curious phrase “was not named as a source in either the article or elsewhere”.

24. If Mr. Watters is not a journalistic source and if his identity is well established, as it is, the only basis, in my opinion, upon which journalistic privilege in respect of communications between the defendants and Mr. Watters could rest would be if it were shown that a disclosure of the content of the communications between Mr. Watters and the defendant could lead to the disclosure of another source either in respect of the story the subject matter of these proceedings or other investigations conducted by the defendants’ journalists. Thus, discovery should be made in respect of communications between the defendants and Mr. Watters unless the defendants can assert privilege on the basis that these communications will disclose another source. If necessary, the court can inspect these documents to exclude from discovery documents leading to the identification of other sources.

25. In general, documents relating to communications between the defendants’ journalists and persons other than Mr. Watters should enjoy journalistic privilege unless the following circumstances exist, which pertain to the documents sought in Category 7 where the alleged source is said to be a member of An Garda Síochána. The defendants submit that these documents are not relevant to any of the matters in contest in the action. The plaintiff submits that this category of discovery is relevant because the existence or non-existence of documents in this category would be directly relevant to advancing the plaintiffs case, to the effect, that the plaintiff or his representative was misled by the defendants as to the manner in which their investigation of the incident took place, and hence could assist the plaintiff in overcoming the defendants’ defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009. In addition it was submitted by Mr. O’Callaghan that such disclosures by members of An Garda Síochána would be a criminal offence, contrary to s. 62(2)(g)(ii) of the Garda Síochána Act 2005, and therefore documents relating to communications of this sort could not enjoy journalistic privilege.

26. The plaintiff makes the case that the story was, in effect, procured by financial inducements offered by the defendants through its crime correspondent to Mr. Watters, and that the defendants misrepresented to the plaintiff or his representative that they had obtained the story from An Garda Síochána. The defendants deny these allegations. In my view, discovery of documents relating to communications between the defendants and An Garda Síochána would be relevant to the resolution of these disputed issues. The resolution of these issues will be central to a determination on the plaintiffs claim for aggravated damages and also to the defendants’ defence of fair and reasonable publication pursuant to s. 26 of the Defamation Act 2009. Insofar as this category of discovery is concerned, therefore, I am quite satisfied that the plaintiff has established that Category 7 of the discovery sought is relevant to the issues in dispute in the action.

27. Section 62 of the Garda Siochana Act 2005, provides for the confidentiality of certain information as follows:

“62.-(1) A person who is or was a member of the Garda Siochana or of its civilian staff or who is or was engaged under contract or other arrangement to work with or for the Garda Siochana shall not disclose, in or outside the State, any information obtained in the course of carrying out duties of that person’s office, employment, contract or other arrangement if the person knows the disclosure of that information is likely to have a harmful effect.
(2) For the purpose of this section, the disclosure of information referred to in subsection (1) does not have a harmful effect unless it­

(a) facilitates the commission of an offence,
(b) prejudices the safekeeping of a person in legal custody,

(c) impedes the prevention, detection or investigation of an offence,

(d) impedes the apprehension or prosecution of a suspected offender,

(e) prejudices the security of any system of communication of the Garda Síochána,

(f) results in the identification of a person-

(i) who is a witness in a criminal proceeding or who has given information in confidence to a member of the Garda Siochana, and
(ii) whose identity is not at the time of the disclosure a matter of public knowledge,

(g) results in the publication of information that-
(i) relates to a person who is a witness to or a victim of an offence, and
(ii) is of such a nature that its publication would be likely to discourage the person to whom the information relates or any other person from giving evidence or reporting an offence,

(3) For the purpose of this section, a person is presumed, unless the contrary is proved, to know that disclosure of information referred to in subsection
(1) is likely to have a harmful effect if a reasonable person would, in all the circumstances, be aware that its disclosure could have that effect.

(5) A person who contravenes subsection (1) is guilty of an offence and is liable-

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exeeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both. ”

28. The disclosure by members of An Garda Siochana to the media of a complaint by a victim of a sexual assault where the alleged assailant was a person with a high public profile, would, in my opinion, be likely to have the effect contemplated by s. 62(2)(b)(i) and (ii) of the Garda Síochána Act 2005, namely, of discouraging the person to whom the information related or any other person from giving evidence or reporting an offence. As the activity impugned here is undoubtedly a criminal offence, journalistic privilege could not be availed of to shelter such activity. Article 10(2) of the European Convention on Human Rights expressly recites the ”prevention of disorder or crime” as a basis upon which a measure, necessary in a democratic society, which interfered with the normal freedom of the media, would be justified. The overwhelming public interest in the detection and prosecution of crime, would, in these circumstances, outweigh the public interest in the proper functioning of journalism, and hence, journalistic privilege could not apply in these circumstances.
29. Communications between the defendants’ journalists and persons other than Mr. Watters and members of An Garda Siochana concerning the publication the subject matter of these proceedings, would, in my opinion, be protected from disclosure by journalistic privilege.

30. This brings me to a consideration of the eight categories of discovery sought.

31. The plaintiff is entitled to discovery of the documents sought in Category 1 but excluding any documents which identify or could lead to the identification of a source other than Mr. Watters or members of An Garda Síochána.

32. The plaintiff is entitled to discovery of the documents sought at Category 2 without any alteration.

33. The plaintiff is entitled to discovery of the documents sought at Category 3 but limited to documents referable to expenses claimed in respect of Leonard Watters.

34. The plaintiff is entitled to the discovery sought at Category 4 without any alteration of same.

35. The plaintiff is entitled to the discovery sought in category 5 without any alteration of same.

36. The plaintiff is entitled to discovery of the documents sought at Category 6.

37. The plaintiff is entitled to discovery of the documents sought at Category 7 without any alteration of same.

38. The plaintiff is entitled to discovery of the documents sought in category 8, but excluding any documents which identify or could lead to the identification of a source other than Mr Watters of members of An Garda Síochána.

39. If the defendants apprehend that any of the documents now ordered to be discovered identify or could lead to the identification of sources other than Mr. Watters or members of An Garda Síochána, this Court can inspect any of these documents to ascertain whether or not journalistic privilege should apply in respect of them.

Duncan v. Governor of Portlaoise Prison

[1997] IEHC 13; [1997] 1 IR 558; [1997] 2 ILRM 296 (23rd January, 1997)
THE HIGH COURT
1996 No. 1958 S.S.

I
NOTICE PARTIES

JUDGMENT of Mr. Justice Kelly delivered the 23rd day of January, 1997 .

INTRODUCTION
1. The Applicant is detained in custody on foot of a Committal Warrant issued by the Special Criminal Court on the 7th November, 1996. He had previously been detained by a purported Order of the same Court dated the 8th October, 1996. It is common case that the Order of the 8th October, 1996 was made by the Special Criminal Court in circumstances where one of the Judges who sat on it was ineligible so to do. That Judge was His Honour Judge Dominic Lynch. He had, at his own request, been removed from membership of the Court by a decision of the Government dated the 1st August, 1996. That decision was not communicated to Judge Lynch who continued to sit as a member of the Special Criminal Court. He was not, however, competent to sit on the Court on the 8th October, 1996 and the purported Order made by that Court on that occasion was invalid.

2. Notwithstanding the making of that invalid Order by the Special Criminal Court, the Applicant was detained in custody in purported compliance with it.

3. On the night of the 6th November, 1996 or early in the morning of the 7th November, 1996 the Applicant was allegedly released from custody and rearrested. What happened on that occasion is very much in issue in these proceedings.

4. Later on the 7th November, 1996, he was brought before the Special Criminal Court and remanded. It is on foot of that remand that he is in custody at present.

5. On the 12th November, 1996 an application was made to this Court on behalf of the Applicant for an enquiry pursuant to Article 40 of the Constitution into the lawfulness of his detention at Portlaoise Prison. That application was granted and the enquiry has been proceeding since then. In the course of these proceedings, the Applicant served a Notice of Motion seeking discovery against the Respondent and a number of the Notice Parties to the application.

6. On the 22nd November, 1996, I made an Order on foot of that motion. That Order was made on consent and directed the Director of Public Prosecutions, the Minister for Justice, the Commissioner of An Garda Siochana and the Attorney General to make discovery by the 29th November, 1996. They were directed to make discovery on oath of all documentation, data and records within their possession, procurement or control touching on or concerning

(a) the circumstances of the removal of the Applicant from the custody of Portlaoise Prison on the night of the 6th November, 1996 and the early morning of the 7th November, 1996 into the custody of An Garda Siochana,

(b) the nature of the irregularity said by Counsel for the Attorney General, in addressing the Special Criminal Court on the 7th November, 1996, to exist in relation to the detention of the Applicant in custody on or before the 6th November, 1996, and

(c) the date and circumstances in which the irregularity referred to at (b) above and/or the facts constituting or giving rise to the same, came to the attention of the Respondent and/or the Notice Parties, including all notes, correspondence or memoranda constituting or reflecting the means by which said matters came to their attention.

7. At this point, I should digress to point out that the Applicant is one of a number of applicants who make complaint concerning their detention on foot of remand orders made by the Special Criminal Court in circumstances similar to those already outlined in this judgment.

8. Much confusion has been caused by virtue of the fact that some of the applicants, although represented by the same firm of solicitors, have instructed different Counsel who have sought and obtained different forms of Discovery Orders against the Respondents and the various Notice Parties. Some of these Orders were more extensive than others.

9. The Respondents and Notice Parties have filed Affidavits in common form in accordance with the most extensive Discovery Orders which have been obtained. It follows that even those applicants who sought and obtained more restrictive Orders than others have benefited by being furnished with the fullest discovery which has been made. In the instant case, the more extensive form of Order was obtained and has purportedly been complied with in full.

THE PRESENT APPLICATION
10. In this application there is sought a series of Orders directed to three of the Notice Parties pertaining to the discovery which has been made by them. These Notice Parties are the Minister for Justice, the Attorney General and the Director of Public Prosecutions. The Orders sought are as follows:

(1) An Order directing the Minister for Justice to produce before the Court the seven (sic) documents listed in the second part of the First Schedule to the Affidavit of Discovery sworn on her behalf on the 29th November, 1996.

(2) An Order directing the Attorney General to produce before the Court the seventeen documents listed in the second part of the First Schedule to the Affidavit of Discovery sworn on his behalf on the 29th November, 1996.
(3) An Order directing the Director of Public Prosecutions to produce before the Court the eleven documents listed in the second part of the First Schedule to the Affidavit of Discovery sworn on his behalf on the 29th November, 1996.

(4) An Order directing an oral hearing of the claims of privilege made by the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, in relation to the discovery made by the said Notice Parties.

(5) An Order permitting the Applicant to inspect the documents, claimed by the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, to be privileged in relation to the discovery made by the said Notice Parties.

(6) An Order directing the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, to make further and better discovery in pursuance of the Order of Discovery made on the 22nd November, 1996.

11. Apart from relief number (6) all the others relate to claims of privilege asserted by the Notice Parties in their respective Affidavits of Discovery.

12. There was also served on the Notice Parties, a Notice of intention to cross-examine in respect of the three Affidavits of Discovery sworn on their behalf. That Notice sought the production of Mr Tim Dalton, Secretary of the Department of Justice, Mr Richard Barrett, Legal Assistant in the Attorney General’s office, and Mr Barry Donoghue, Legal Assistant in the Office of the Director of Public Prosecutions. That Notice, insofar as it is relevant, says that the Applicant

“intends at the hearing of the interlocutory application for, inter alia, an inquiry into the claims made by the Minister for Justice, the Attorney General and the Director of Public Prosecutions, respectively, to privilege in respect of documentation disclosed in their respective Affidavits of Discovery dated the 29th day of November, 1996 and for an Order for further and better discovery by the said Notice Parties to cross-examine the several deponents named and described in the Schedule hereto on their Affidavits therein specified “.

13. A single Affidavit grounds this application. It is that of Michael E. Hanahoe sworn on 11th December 1996. Paragraph 6 thereof sets forth in a short but non-exclusive form the principal claims made by the Applicant which he alleges give rise to his current detention being unlawful. He says that:

(a) He was not in fact ever released from the custody of the State on the night of the 6th November, 1996 and the morning of the 7th November, 1996.

(b) The Committal Warrant issued by Order of the Special Criminal Court sitting at Green Street in the City of Dublin on the 8th October, 1996 is ultra vires void and of no legal effect.

(c) The Committal Warrant issued by Order of the Special Criminal Court sitting at Green Street in the City of Dublin on the 7th November, 1996 is ultra vires, void and of no legal effect.

(d) The criminal charge contained in Bridewell Sheet No. 357/96, alleging that on the 12th April, 1996 the Applicant was a member of an unlawful organisation contrary to Section 21 of the Offences Against the State Act, 1939 as amended by Section 2 of the Criminal Law Act, 1976 presently (sic) pending before the Special Criminal Court, is ultra vires, void and of no legal effect.

(e) The criminal charge contained in an unnumbered charge sheet at the complaint of Detective Sergeant Hugh O’Connor, which alleges an identical offence to that contained in Bridewell Sheet No. 357/96 presently (sic) pending before the Special Criminal Court, is ultra vires, void and of no legal effect.

(f) The State, its servants or agents were aware of the material circumstances giving rise to the illegal detention of the Applicant both on the 6th and 7th days of November, 1996 and prior to those dates.

14. The Affidavit goes on at paragraph 12 thereof to make an allegation that both the Minister, the Attorney General and the Director of Public Prosecutions ” have taken a policy decision to disclose only those documents that are in effect concerned with the facts of the events which occurred on the 6th and 7th days of November, 1996 “.

15. It further asserts the belief on the part of the Applicant that there are ” presently (sic) in existence further categories of documentation which are both admissible and material ” to the enquiry.

16. The deponent then goes on to set forth in the subsequent paragraphs examples of what he says are documents which ought to have been discovered but were not. I will return to consider these in due course.

THE AFFIDAVITS OF DISCOVERY
17. The Affidavit of Barry Donoghue, sworn on behalf of the Director of Public Prosecutions, maintains a claim to legal professional privilege in respect of the documents set forth in the second part of the First Schedule to his Affidavit. That part of the First Schedule contains eleven different items. In respect of the items Nos. 2, 3, 4, 5, 9, 10 and 11, the deponent avers that those documents came into being for the purpose of giving or receiving legal advice or are notes taken by the parties described in the Schedule to the Affidavit as to the advice given by Counsel on the issues in suit.

18. Insofar as item No. 1 in the second part of the First Schedule to Mr Donoghue’s Affidavit is concerned, he alleges that the privilege to be attached to that is not that of the Director of Public Prosecutions. Nonetheless, he maintains the claim to privilege because, he says, it may be a document in respect of which another party to the proceedings may claim privilege because the document may be one which was drawn up for the purpose of preparation of an Affidavit in the proceedings. In fact the Director was correct in his belief that other parties might claim privilege in this regard; they have done so. Similar considerations arise in relation to the material set forth at Nos. 6 and 7 in the second part of the First Schedule. Other Notice Parties to these proceedings have claimed privilege in respect of them.

19. The Affidavit of Richard Barrett, sworn on behalf of the Attorney General, makes two separate claims to privilege. The first is a claim to legal professional privilege and the second to executive privilege. Legal professional privilege is claimed in respect of twenty one items which are set forth at numbers 11 through 31 of Section A of part 2 of the First Schedule to the Affidavit. Executive privilege is claimed in respect of seventeen items which are set forth at Section B of part 2 of the First Schedule of the Affidavit of Discovery. All of the documents which are the subject of the claim of executive privilege also have the claim to legal professional privilege asserted in respect of them.

20. The original Affidavit of Discovery sworn by Mr Barrett on the 29th November, 1996 did not set out the basis upon which the claim to legal professional privilege was asserted. However, in a supplemental Affidavit sworn on the 16th December, 1996 at paragraph (7) he said

“the claim of legal professional privilege made in respect of the documents set forth at Section (a) of part 2 of the Schedule to my Affidavit dated 29th November, 1996 is based on the fact that the documents set out therein are documents directed to or emanating from a legal advisor written for the purpose of rendering or obtaining legal advice or documents brought into being in the course of preparing and/or assembling that legal advice.”

21. The claim to executive privilege is set forth in respect of documents numbered 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25 and 26 because it is claimed they are confidential communications between on the one hand, a Minister of Government or a Department of Government and on the other, the Attorney General and his officials, or between officials of the Attorney General in relation to affairs of State. The claim in respect of the documents numbered 30 and 31 is because they are alleged to be confidential communications between the Chief State Solicitor and the Department of the Taoiseach, for the purpose of supplying information for Dail debates and questions.

22. The Affidavit of Tim Dalton, sworn on behalf of the Minister for Justice, maintains a claim to both legal professional privilege and executive privilege in respect of certain documents. The claim to legal professional privilege is asserted in respect of six documents which are numbered 53 through to 58 in Section A of the second part of the First Schedule to the Affidavit. In the original Affidavit of Discovery the basis upon which that claim was made was not set forth, but in a supplemental Affidavit sworn on the 16th December, 1996 Mr Dalton says this:-

“the claim of legal professional privilege in relation to the documents set forth in Section A of part 2 of the First Schedule is based on the fact that the documents set out therein are documents directed to or emanating from a legal advisor written for the purpose of rendering or obtaining legal advice. Two of the documents, numbered 53, and 58, are letters from the Attorney General to the Minister for Justice or a senior Official in the Department of Justice written for the purpose of rendering legal advice. One document numbered 57, is a fax and letter from a senior Official in the Department of Justice written for the purpose of obtaining legal advice from the Attorney General and two documents, numbered 55 and 56, are documents from the Chief State Solicitor’s Office to a senior Official in the Department of Justice written for the purpose of rendering legal advice”.

23. Insofar as a claim to executive privilege is asserted, that is maintained in respect of a single letter dated the 1st November, 1996 from the Attorney General to the Minister for Justice. Executive privilege is claimed in respect of that on the ground that it is a communication in the area that in the public interest requires confidentiality for the proper functioning of the Public Service. Legal professional privilege is also asserted in respect of this letter since it is the letter set forth at number 53 in Section A of Part 2 of the First Schedule to the Affidavit, and such privilege is claimed in respect of it because it is averred the letter was written for the purpose of rendering legal advice.

THE APPLICATION TO CROSS-EXAMINE
24. The Applicant seeks to cross-examine the deponents on their respective Affidavits of Discovery. He seeks to do so in respect of two matters. The first is to cross-examine them concerning the privilege which is claimed by them, and the second is in respect of the application for further and better discovery which is sought.

25. This application to cross-examine was opposed by Counsel on behalf of all of the Notice Parties.

26. The proposition put by Mr McEntee on behalf of the Applicant is that he is entitled to test, by way of cross-examination, what he describes as the bald claim of privilege, which is made in the various Affidavits of Discovery. Furthermore, he says that he should be entitled to cross-examine so as to establish whether or not there are documents in the power, possession or procurement of the respective Notice Parties which ought to have been discovered but were not.

27. Mr McEntee was unable to produce any Irish authority in his favour which decided that cross-examination on an Affidavit of Discovery was permissible. The nearest he came to so doing was to rely upon the judgment of Johnson J. in Murphy (a minor) v. J. Donohue Limited & Ors [1995] 2 ILRM 509. That was an application to strike out a defence for failure to make full discovery in accordance with Orders made in that behalf. In that case cross-examination did take place but on a consensual basis. Such being so, the case is of little assistance in deciding the question of principle of whether or not cross-examination is ever permissible on an Affidavit of Discovery. However, Mr McEntee says that the mere fact that cross-examination took place, even on a consensual basis, demonstrates that the procedure is at least available. He submits that having regard to the fundamental importance of the habeas corpus procedure prescribed under Article 40.4.2 of the Constitution, each and every possible procedure ought to be available to the Court in ensuring the efficacy of the Court’s powers under that Article. He contends that once he demonstrates that cross-examination is desirable upon the Affidavit, then that is sufficient and the Court ought to permit him to proceed in that fashion.

28. Mr McEntee cited three English cases which he said were supportive of his view that such cross-examination is permissible in principle.

29. The first of these cases is Berkley Administration Inc. & ors v McClelland & ors (1990 FSR 381). That was an action for breach of confidence. The Plaintiff sought the specific discovery of a number of categories of documents including the whole of documents which had hitherto been discovered only in an edited or partly blanked out form. They also sought discovery of certain documents in the possession of personal Defendants relating to pre-incorporation transactions of corporate Defendants of which those personal Defendants had been directors. An Affidavit had been sworn by a Solicitor acting for the Defendants as to the adequacy of the discovery already given. The Judge made Orders for Discovery of certain categories of documents but refused others. The Defendants appealed. In the course of his judgment at page 383, Mustill L.J. (as he then was) said, in respect of item 5

“this calls for disclosure of the whole of documents only part of which have so far been disclosed in an edited form. It has been stated on oath, by Mr Webb, on behalf of the defendants, that the covered up parts are not germane to any issue in suit. Plainly the atmosphere in the case is such that the Plaintiffs have grave scepticism about anything said on behalf of the defendants, but it is not a purpose of discovery to give the opposing party the opportunity to check up on whether the discovery has been properly carried out. If they do not believe the deponent they should call for him to appear and be cross-examined on his oath. Alternatively, if they wish to do so, they may seek the opportunity at the trial to explore the matter further. But for my part I think it quite plain that in the exercise of our discretion we should not order these documents to be disclosed. This seems to be a matter which is much better left for the trial Judge to deal with if and when it is pursued”.

30. On the basis of that very brief assertion by Mustill L. J. as to the ability to cross-examine a deponent, Mr McEntee asserts the entitlement so to do. However, a consideration of the case in detail demonstrates that the Court of Appeal did not appear either to have cited to it, or to refer in its judgment, to any of the case law on the topic, the overwhelming bulk of which is to the effect that cross-examination upon an Affidavit of Discovery is not permissible in the Courts of England and Wales. As an authority for the proposition advanced by Mr McEntee it is therefore, in my view, of comparatively little help.

31. The second English decision relied upon is that of Re Grosvenor Hotel London which is reported in the Court of Appeal at (1964) 1 AER 92. Those proceedings involved a claim for a new tenancy of business premises against the British Railways Board. That Board objected in its Affidavit of Documents to the production of certain letters passing between the respondents and the Ministry of Transport and the Treasury Solicitor. That objection was taken after communication with the Treasury Solicitor. The Applicants applied by summons, to which the Board and the Minister were Respondents, for an Order for cross-examination of the Minister on his Affidavit. In the High Court the Judge found that the objection was not properly taken in the Affidavit of the Minister but declined to make an Order for his cross-examination. Instead he made an Order that would enable the Minister to file a further Affidavit to support the claim that the documents belonged to a class which on the grounds of public interest ought to be withheld from production. The Court of Appeal dismissed the appeal on the basis that it was a misconceived one. This was because the Applicants had had a finding in their favour that no proper claim for privilege had been made. Whether the Minister should be given another opportunity to remedy that defect was at the Judge’s discretion and no grounds for interfering with his exercise of that decision had been established. Mr McEntee relies on the obiter dictum of Harman L.J. at page 94 where he said:-

“Now the Applicants were not content with that affidavit and on June 12th they took out a summons before the master asking for leave to summon the Minister for cross-examination. That is a very unusual thing in the course of discovery in an action and, as between the parties, I do not think that it can be done, because an affidavit of documents is not an affidavit raising issues in the suit. It is an affidavit about what documents A or B has in his possession or power or has had, and there are other means of getting documents. However that may be, the Judge said when the summons came before him that he did not doubt that he had jurisdiction to order cross-examination if he thought that it was a proper case for it, and I do not think that I would quarrel with that view today”.

32. The final case relied upon by Mr McEntee was the decision of the Court of Appeal in Lonrho plc v Fayed and ors (No 3) (The Times Law Reports June 24 1993). In that case the Court of Appeal held that where at the interlocutory stage of an action, an Affidavit was made by a party pursuant to an Order for specific discovery of documents, the other party was not entitled to contravene what was sworn there by a further contentious Affidavit or by obtaining an Order to cross-examine that party, since the latter’s oath in answer was conclusive.

33. In that case an application was made to cross-examine in respect of documents which, it was alleged, ought to have been discovered but were not. Counsel for the Defendants submitted to the Court of Appeal that the law was clearly established that the Oath or affirmation of deponents as to discovery of documents that they had no further documents was conclusive and could not be questioned at an interlocutory stage. The reason for the rule, he said, was to avoid prolonged interlocutory hearings and because grave injustice could result if crucial issues of the trial were to be determined on wholly incomplete and inadequate evidence. He further submitted that if there was power to cross-examine on such Affidavits, it should be confined to cases where the existence or fate of the documents raised discrete questions not involving the Court in reaching preliminary conclusions on the issues in the action. Counsel for the Plaintiff submitted that it was not, and never had been, the law that such further Affidavit of Documents was conclusive. If that were so, he said, the Court would be powerless to enforce its Orders.

34. In the course of the leading judgment Stuart-Smith L.J., referred to the rule that prohibited cross-examination on Affidavits of Documents which was affirmed by the Court of Appeal in Jones v Montevideo Gas Company (1880) 5 QBD 556. He went on to hold that there had always been a procedure by which a party could seek a further and better Affidavit of Documents but the criteria justifying the making of such an Order had altered over the years. However, he held that the oath of the deponent on the further Affidavit was conclusive. The report in its relevant part reads as follows:

“His Lordship concluded that on whatever ground the Order for a further Affidavit was made, whether because of some admission by the deponent or the belief of the opposite party that other documents existed, the deponents oath was conclusive; it could not be contravened by a further contentious affidavit and could not be the subject of cross-examination”.

35. The report goes:

“The reasons for the rule were not far to seek. In the great majority of cases where it was alleged that one party or the other had suppressed documents, that issue would be crucially relevant to the issues in the trial and could only be properly determined after the Judge at trial had heard all the evidence. To try the issue at an interlocutory stage could involve injustice to both sides”.

36. Later in the report the following appears:

“If, contrary to his Lordship’s view, there was power to order cross-examination on an affidavit of documents, the exercise of that power should be reserved for those cases where the existence or non-existence of the document raised a discrete issue which did not impinge to any serious extent on the issues in the action”.

37. This authority appears to me to be against Mr McEntee since it is the unanimous view of the Court of Appeal in England that cross-examination on an Affidavit of Discovery is impermissible.

38. The decision of the Court of Appeal in Jones v. Montevideo Gas Company seems to have been relied upon by Stuart-Smith L.J. in the Lonrho case as being authority for the proposition that cross-examination on Affidavits of Discovery was prohibited. That clearly was the import of the decision of the Court of Appeal in the Jones case. However, a consideration of the judgments in it demonstrate that they were concerned with the interpretation to be given to the then relevant provision of the Rules of the Supreme Court, 1875. Even though, in the course of his judgment, Brett L.J., says that an Affidavit of Documents must be accepted as conclusive, he nonetheless speaks of the possibility of administering interrogatories with a view to ascertaining the adequacy of the disclosure which has been made in an Affidavit of Discovery. The view of the Court of Appeal appears to have been based upon what was formerly the practice in the Court of Chancery which apparently prohibited the contradiction of an Affidavit of Discovery which had to be taken as sufficient unless, from the documents referred to or from an admission in the pleadings of the party from whom the discovery was sought or from the Affidavit itself, it could be gathered that some documents were withheld. The object of that practice per Cotton L.J. was to prevent a conflict of Affidavits as to whether the Affidavit of Documents was sufficient. The Court of Appeal decided that a similar practice ought to be followed in the Queen’s Bench Division.

39. A consideration of these English decisions suggests that there is at least some doubt as to the existence of a rule which absolutely prohibits cross-examination on an Affidavit of Discovery as far as the Courts of England and Wales are concerned. This is particularly so having regard to the observations of Harmon L.J. at the conclusion of the passage from his decision in Re Grosvenor Hotel London which I have just cited. If there is such a rule in English law, it appears to be based upon a contention that the Courts there are obliged to accept an Affidavit of Discovery as conclusive as to its contents unless, from the documents referred to or from an admission in the pleadings of the party from whom the discovery was sought or from the Affidavit itself, it could be gathered that some documents were withheld.

40. I do not accept that in Irish law an Affidavit of Discovery must be considered as conclusive and can never be the subject of cross examination.

41. Just as a certificate concerning the concentration of alcohol in a specimen of blood or a specimen of urine was unacceptable to the Courts as “conclusive evidence” of certain facts, so an Affidavit of Discovery cannot be regarded ipso facto as conclusive ( vide Maher v. Attorney Genera l (1973) I.R. 140). It appears to me that the administration of justice, which is vested by the Constitution in the Courts, requires that the Courts have the ability to adjudicate fully upon the adequacy and accuracy of an Affidavit of Discovery. In exceptional cases this may involve the cross-examination of the deponent of such an Affidavit. To hold otherwise would mean that the Court would be deprived from investigating the accuracy or adequacy of an Affidavit of Discovery and would have to accept at face value what is averred therein. It appears to me that the Court must always retain the power and make available the necessary machinery to ensure that it is not so limited in administering justice.

42. Such observations apply a fortiori where the Court is engaged upon an inquiry under Article 40 of the Constitution. The Court must be astute to ensure that the remedy provided for in Article 40 may be obtained efficaciously. In this regard the judgment of the Court (Geoghegan, Laffoy, Kelly J.J.,) in Gallagher v. Director of the Central Mental Hospital (unreported 9th July, 1996) is of relevance. There the Court said:-

“There can be many instances of Article 40 inquiries which involve looking behind the document or documents purporting to authorise the detention and therefore, for all practical purposes, embrace an element of quasi judicial review of a Court proceeding. It may be open to argument that a party to that proceeding, though not the actual detainer, should be given a hearing in the interests of fair procedures. Furthermore, Article 40.4(2) cannot really be said to be totally comprehensive as to procedures. As has been rightly pointed out by Mr. Hardiman, the Article is silent on the swearing and filing of affidavits, Orders of Discovery, Bail Orders pending the determination of the inquiry etc, yet all these procedures are commonly availed of in such inquiries. Although Order 84, Rule 1(2) of the Rules of the Superior Courts expressly excludes from the definition of “Order of Habeas Corpus” an order made pursuant to Article 40, Section 4, the Constitution itself, in my view, envisages the widest possible powers to be conferred on the Judge or Court conducting the inquiry, which power could not be delimited or cut down by the rules-making Committee”.

43. It appears to me that there are circumstances in which it may be permissible to cross-examine on an Affidavit of Discovery. However, I am satisfied that such circumstances are extremely rare. This is so because of the variety of other remedies which are available with a view to testing matter contained in an Affidavit of Discovery. These other remedies include Orders for further and better discovery, the delivery of interrogatories, and the inspection by the Court itself of documents referred to in an Affidavit of Discovery. Furthermore, it appears to me to be wholly undesirable that the Court should, save in the most exceptional cases, be called upon to deal with questions such as the existence or non-existence of a document in circumstances where such a question might impinge to a serious extent on the issues in the action. Clearly at the stage when an issue of discovery of this type is being argued, the Court cannot be fully au fait with all the issues in the proceedings. I do not in this judgment wish to specify the rare circumstances in which cross-examination on an Affidavit of Discovery may be permitted. But it does appear to me that when permitted at all, it should only arise in circumstances where it is both necessary and where other remedies, such as those already mentioned, prove inadequate.

44. In the circumstances of this case for reasons which I will give in a few moments, I am satisfied that cross-examination on the Affidavits which have been made here is unnecessary and inappropriate.

LEGAL PROFESSIONAL PRIVILEGE
45. Each of the Affidavits makes a claim to legal professional privilege in respect of a number of documents referred to therein. I have set forth the basis upon which this privilege is claimed . Prima facie , on the basis of what is contained in the respective Affidavits, the claim to legal professional privilege appears to be a good one. The only Affidavit evidence to the contrary appears to relate to a letter from the Attorney General to the Minister for Justice dated 1st November, 1996, where at paragraph 24 of his Affidavit, Mr. Hanahoe says:-

“I say and believe that the dual claim of both executive privilege and legal professional privilege in relation to the letter from the Attorney General to the Minister for Justice and dated 1st November, 1996 is without foundation. I further say that in the documentation already discovered by the State there are repeated references to the fact, the content and the significance of this letter in relation to the events the subject matter of this inquiry”.

46. Mr. McEntee does not contest the existence of legal professional privilege or the form in which it is claimed in respect of these documents. However, he says that the documents, in addition to containing legal advice, may also contain factual matter and that legal professional privilege would not extend to such matter. He invites me to

(a) permit him to cross-examine, or
(b) to direct the production of these documents with a view to the Court
reading them and extracting from them the factual content in respect
of which he says a claim to legal professional privilege would not apply.

47. I will consider each in turn.

48. I cannot see that any advantage can be obtained by permitting a cross-examination on the basis of Mr. McEntee’s contention. If what he wishes is to have the factual content extracted from the documents and disclosed to him, I cannot see how the cross-examination of the deponent can assist in that endeavour. It appears to me that cross-examination is neither necessary nor appropriate in the present case.

49. If the contention made by Mr. McEntee for a severance to be made of documents in respect of which legal professional privilege is claimed is a good one, then of course such documents must be examined by the Court with a view to carrying out the exercise sought.

50. It is not without significance that Mr. McEntee was unable to cite any authority from any country in the world supporting his argument that the Court could or should embark upon the exercise which he suggests. It is unprecedented and, in my view, such is the case for very sound reasons.

In R. v. Derby Magistrates Court ex-parte B (1995) 4 All ER 526, Lord Taylor of Gosforth L.C.J., in delivering the leading speech in the House of Lords set forth in a succinct form the history of legal professional privilege. He concluded (at p. 540) as follows:-

“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests”.

51. It appears to me that the proposition advanced by Mr. McEntee to the effect that the Court ought in this case to direct the production of the documents in respect of which legal professional privilege is claimed and then, in effect, edit them so as to make factual matter in them disclosable to him, would be to dilute in very considerable measure the whole notion and effect of legal professional privilege. It would, in my view, be an unwarranted and dangerous course to embark upon and would amount to a serious interference with what the then Lord Chief Justice of England described as ” a fundamental condition on which the administration of justice as a whole rests”.

52. Quite apart from the objection in principle, Mr. McEntee’s formulation has many practical difficulties attendant upon it. If he is correct in his submission, any case in which legal professional privilege is claimed may, on the simple request of the opponent, result in the Court being called upon to go through the entire of the documents with a view to ascertaining, not the validity of the claim to legal professional privilege, but rather to engage in the work of editing the documents with a view to extracting from them factual material to be disclosed to the other side. This exercise would have to be conducted at a time in advance of the trial when no judge can be fully apprised of the entire factual matrix against which the action is brought. The conduct of such an exercise would, in my view, be much more likely to work against the administration of justice than in its favour.

53. Accordingly, I refuse both the application to cross-examine and the application for the production of the documents in respect of which legal professional privilege is claimed.

54. There may well be a case (although I hope a rare one) where cogent evidence might be adduced to suggest that a claim to legal professional privilege is being wrongfully asserted. In such a case I do not exclude an ability on the part of the Court to direct production of the documents in question. Such an exercise would be with a view to ascertaining whether or not the documents were truly privileged. That is not the proposition which was advanced in this case.

EXECUTIVE PRIVILEGE
55. The claim to executive privilege is made only by the Attorney General and the Minister for Justice. The claims are made on the basis which I have already set forth in this judgment. I, of course, accept the law on this topic as laid down by the Supreme Court in Murphy v. Dublin Corporation (1972) I.R. 215 and more recently in Ambiorix Limited v . The Minister for the Environment (1992) I.L.R.M. 209.

56. The principles applicable to such a claim are set forth in the judgment of Finlay C.J. at page 212. He summarises them as follows:-

“1. Under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution.
2. Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.
3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.
4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the government.
5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.

These principles lead to certain practical conclusions which are applicable to a claim of privilege by the executive of the nature which arises in this case, and they are as follows:

(a) The executive cannot prevent the judicial power from examining documents which are relevant to an issue in a civil trial for the purpose of deciding whether they must be produced.

(b) There is no obligation on the judicial power to examine any particular document before deciding that it is exempt from production, and it can and will in many instances uphold a claim of privilege in respect of a document merely on the basis of a description of its nature and contents which it (the judicial power) accepts.

(c) There cannot, accordingly, be a generally applicable class or category of documents exempted from production by reason of the rank in the public service of the person creating them, or of the position of the individual or body intended to use them”.

57. Given this statement of the law, it is clear that in an appropriate case the Court can and frequently does direct the production of the documents in respect of which the claim to executive privilege is made for the purposes of those documents being inspected by the Court. Upon inspection, the Court will decide whether it is exempt from production or not.

58. In the present case there is no attempt made to assert the executive privilege in respect of a class or category of documents. Rather individual documents are specified and the claim to privilege is asserted in respect of them.

59. Although little is produced by way of evidence to controvert this assertion, I would be prepared, were this an appropriate case so to do, to direct the production of these documents for the purposes of their being examined by the Court. However, I have concluded that it is inappropriate in the present case for the following simple reason.

60. Each of the documents in respect of which the claim to executive privilege is made is also the subject matter of a claim to legal professional privilege. I have already held that that claim is made in a proper form and Mr. McEntee has not denied the existence of such privilege in respect of the documents which are set forth in the various Affidavits. I have rejected his contention that the Court should trawl through these documents with a view to separating the facts from the legal advice which they contain.

61. If I were to examine the documents in the present case and to hold that executive privilege did not attach to them, they would still not be disclosed to the Applicant by reason of the existence of a valid claim to legal professional privilege. Accordingly, the exercise in the present case would be otiose. I therefore refuse to make an Order for the production of these documents for their inspection by the Court.

62. Given that the existence of this remedy, i.e. production and inspection by the Court, which might have been available but for the claim to legal professional privilege, I likewise dismiss the application which seeks to cross-examine in relation to this claim of executive privilege. It would be neither necessary nor appropriate that such an exercise should be engaged in given the powers (in particular the power of inspection) available to the Court.

FURTHER AND BETTER DISCOVERY
63. The final element of the application which I must consider is the claim for further and better discovery.

64. Again, the Applicant seeks to cross-examine in relation to this aspect of the matter. Again, I reject his application in this regard since I do not regard it as either necessary or appropriate that such cross-examination should take place. If the Court is satisfied as to the inadequacy of discovery already made, it may make an Order requiring further and better discovery to be made and if the Applicant is still dissatisfied at that stage, there are other remedies available to him apart from cross-examination on the Affidavit of Discovery. In any event, on the facts I hold that such cross-examination is unnecessary.

65. To the grounding Affidavit of Mr. Hanahoe there has been filed a replying Affidavit by Mr. Tim Dalton, on behalf of the Minister for Justice and by Mr. Richard Barrett, on behalf of the Attorney General. Each of those Affidavits deals in detail with the complaints which are set forth in Mr. Hanahoe’s Affidavit and, in my view, constitute a satisfactory answer to the various complaints which are made. It does not appear to me to be necessary to set out in detail in this judgment the various factual matters which have been canvassed in those Affidavits in any detail.

66. Having regard to the very full Affidavit of Discovery made in particular by the Minister for Justice and to the explanations which are set forth in the replying Affidavits to which I have referred, I am not satisfied that the Applicants have demonstrated the likelihood of the existence of further or other documents pertinent to the issues which have been identified to date in the proceedings. However, in common with the case of Michael Hegarty, I propose to make an Order in this case for the exchange of pleadings as between the parties. This will involve the Applicant delivering a Statement of Claim and the Respondent and Notice Parties delivering defences to that Statement of Claim. The delivery of such pleadings should ensure the identification of the issues in the case in a rather more precise fashion than that set out at paragraph 6 of Mr. Hanahoe’s grounding Affidavit. I will direct that at the conclusion of the delivery of pleadings each of the Notice Parties should serve a further Affidavit of Discovery in respect of any documents which appear at that stage to be relevant to the issues which fall to be tried in the proceedings. That will ensure that at the time when pleadings are closed, the question of discovery will be looked at anew in the light of the allegations which will be advanced in Court on the substantive hearing.

CONCLUSION
67. I therefore propose to make the following Orders:

(a) The application seeking to cross-examine on the Affidavits of Discovery will be dismissed.
(b) The application seeking to have the Court examine the documents in respect of which legal professional privilege is claimed with a view to editing out of those documents factual material which should then be disclosed in that edited form to the Applicant is dismissed.
(c) The application seeking to disallow the claim to executive privilege is dismissed since each document in respect of which such privilege is claimed is already the subject of a claim to legal professional privilege which is not controverted by the Applicant. Consequently such an exercise would be otiose.
(d) The claim for an Order for further and better discovery is dismissed. However, I will direct that further Affidavits of Discovery be sworn at the conclusion of the delivery of pleadings. This will ensure the making of full discovery at that stage of the proceedings when all of the issues as between the parties should be fully identified.

DPP v Kennedy

[2012] IESC 34
Judgment delivered on the 7th day of June, 2012 by Denham C.J.
1. This appeal is brought seeking an injunction prohibiting or restraining a criminal trial. The decision to prosecute has been made by the Director of Public Prosecutions, the respondent, referred to as “the DPP”, which is an independent statutory office. The Court will intervene in a decision to prosecute, and will prohibit a trial, only in exceptional circumstances. Thus, the issue on this appeal is whether there are exceptional circumstances such that the Court should intervene, in the decision of the DPP to prosecute, and prohibit a criminal trial proceeding.

2. James Kennedy, the applicant/appellant, referred to as “the appellant”, was sent forward for trial on sixteen charges in the Dublin Circuit Criminal Court. The charges allege instances of corruptly giving sums of money to named members of Dublin County Council, or to office holders or directors of Dún Laoghaire Rathdown County Council.
Issues
3. On this appeal counsel stressed several specific issues, as follows:-

(a) A disclosure matter;
(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

Before considering each of these issues in detail, I will set out background facts to this appeal.
Charges
4. The appellant was brought before the Dublin District Criminal Court on the 22nd October, 2010, and charged with sixteen offences, as follows:-

“(i) Charge Sheet No. 10882572

For that you the said accused did, on the 11th day of June 1992 at the offices of Frank Dunlop and Associates Limited, 25 Upper Mount Street, Dublin 2 in the County of the City of Dublin, corruptly give a sum of money as a gift to Sean Gilbride, for the benefit of the said Sean Gilbride, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Sean Gilbride, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(ii) Charge Sheet No. 10882637

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, at Conway’s Public House, Parnell Street, Dublin 1 in the County of the City of Dublin, corruptly give a sum of money as a gift to Jack Larkin, for the benefit of the said Jack Larkin, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Jack Larkin, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(iii) Charge Sheet No. 10882686

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State, corruptly give a sum of money as a gift to Cyril Gallagher, for the benefit of the said Cyril Gallagher, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Cyril Gallagher, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(iv) Charge Sheet No. 10882718

For that you the said accused did, on the 4th day of May 1992 at the reception area of Dublin County Council, in the County of the City of Dublin, corruptly give a sum of money as a gift to Tom Hand, for the benefit of the said Tom Hand, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tom Hand, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(v) Charge Sheet No. 10882759

For that you the said accused did, on the 4th day of May 1992 at St. John of Gods, within the County of the City of Dublin, corruptly give a sum of money as a gift to Don Lydon, for the benefit of the said Don Lydon, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Don Lydon, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(vi) Charge Sheet No. 10882694

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(vii) Charge Sheet No. 10882904

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, at the offices of Colm McGrath, Clondalkin, in the County of the City of Dublin, corruptly give a sum of money as a gift to Colm McGrath, for the benefit of the said Colm McGrath, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Colm McGrath, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(viii) Charge Sheet No. 10883025

For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

(ix) Charge Sheet No. 10883082

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(x) Charge Sheet No. 10883171

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xi) Charge Sheet No. 10882889

For that you the said accused did, on the 23rd day of December 1997 at the Buswells Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xii) Charge Sheet No. 10882864

For that you the said accused did, on the 23rd day of December 1997 at Buswells Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xiii) Charge Sheet No. 10883017

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xiv) Charge Sheet No. 10883203

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xv) Charge Sheet No. 10883244

For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997, both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xvi) Charge Sheet No. 10883269

For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997, both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.”
Facts
5. A significant person in this case is Frank Dunlop. On the 13th July, 2008, the DPP directed that Frank Dunlop be charged with 16 offences of corruption. On the 21st November, 2008, Frank Dunlop was arrested and charged with the offences. On the 16th January, 2009, Frank Dunlop pleaded guilty to five charges on the Bill of Indictment. On the 29th May, 2009, Frank Dunlop was convicted and sentenced in the Dublin Circuit Criminal Court.

6. On the 24th June, 2010, the DPP directed that six persons, including the appellant, be brought before the courts on charges of corruption.

7. On the 19th October, 2010, separate Criminal Asset Bureau proceedings commenced and were at hearing all day. After leaving the Four Courts building the appellant was arrested on Inns Quay at 4.15 p.m. In the early hours of the 20th October, 2010 the appellant was hospitalised and received cardiac care; on the 22nd October, 2010, two days later, he was discharged from hospital. At 3 p.m. on the 22nd October, 2010, the appellant attended at Donnybrook Garda Station, by arrangement, for the purpose of arrest. The appellant was then brought before the Dublin District Court, charged with the offences in issue, and bail was set. Bail conditions were met and he was released from prison.

8. On the 28th October, 2010, the Book of Evidence was served.

9. The date for trial was set for the 5th October, 2011.
Judicial Review
10. However, the appellant applied to the High Court for leave to apply for judicial review, which was granted by the High Court (Peart J.) on the 7th March, 2011.

11. In the statement of grounds the appellant sought: inter alia, an injunction prohibiting the DPP from proceeding with the trial of the appellant on the said sixteen charges; if necessary an order extending the time for the bringing of the application; and damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003.

12. The grounds upon which the relief was sought included the right to an expeditious trial. It was also pleaded that pursuant to s. 3 of the European Convention on Human Rights Act, 2003, the DPP and the Garda Síochána are obliged to perform their functions in a manner compatible with the State’s obligations under the European Convention on Human Rights, which obligations include the duty to comply with Article 6.
High Court Judgment
13. On the 28th July, 2011, the High Court (Hedigan J.) delivered judgment on the application. The learned High Court judge accepted that there had been delay in bringing the prosecution, but held that that of itself was not a basis to prohibit the trial. The learned trial judge held that the delay was excusable: (a) he accepted that the appellant could not be contacted so as to progress the matter; (b) he accepted that Frank Dunlop was not available as a witness until the proceedings of the Tribunal of Inquiry into Certain Planning Matters and Payments, referred to as “the Tribunal”, and the criminal proceedings involving Frank Dunlop had been concluded.

14. While the High Court’s decision on delay disposed of the matter, the learned High Court judge also stated as follows:-

“While the above finding is dispositive of this case, I feel that I should express my view that even if the delay was not excusable, I would find that the balance of justice lies very much in favour of the community’s right to have these alleged criminal charges prosecuted. In B v DPP [1997] 3 I.R. 140 Denham J. stated at 195 that:-

‘It is necessary to balance the applicant’s right to reasonable expedition in the prosecution of the offence with the community’s right to have a criminal offence prosecuted.’

The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The state has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of state officials is an attack on the integrity of the state itself and the whole apparatus of state governance. As such it is a crime of great gravity. Taking the entire history of this case into account including the difficulty in ascertaining where the [appellant] resided at any given time as exemplified by the contradictions contained on the affidavits and considering also the unavailability until recently of Frank Dunlop as a witness, I am satisfied that the delay herein is excusable. Even were this not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take place. Finally in relation to any prejudice the [appellant] may encounter, there is ample judicial authority for the proposition that such prejudice may be overcome or countered by means of appropriate directions or warnings from the trial judge. In these circumstances I must refuse the relief sought.”
15. As to the claim made on the European Convention on Human Rights, the High Court held:-
“The [appellant] has argued that as a result of the delay which has occurred in this case the State is in violation of its obligations under Article 6 of the Convention which provides, inter alia, as follows:

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

It is possible that the State could be found to have acted in contravention of Article 6 due to the duration of the Tribunal and the consequent unavailability of the main witness. However, violation of Article 6 does not ipso facto result in a prohibition of the trial in question. In TH v DPP [2006] 3 IR 520 the applicant sought to prohibit his trial on a charge of sexual assault by relying on the finding of the Court of Human Rights in Barry v Ireland. Fennelly J. speaking for a unanimous Supreme Court addressed this in the following passage:-

‘It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. .. the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.’

I am satisfied that while there has been an inordinate delay in these criminal proceedings, that delay is excusable by virtue of the difficulty in locating the [appellant] and the unavailability of the key witness.”
16. The learned High Court judge also refused to prohibit the trial on grounds of stress and anxiety to the appellant, stating that the appellant had failed to support such a claim with medical evidence.
Notice of Appeal
17. Twenty four specific grounds of appeal were filed on behalf of the appellant, as follows:-

(i) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant.
(ii) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant, notwithstanding the real and serious risk that justice would not be seen to be done when the finding by the learned trial judge in refusing the appellant inspection of them was that the documents considered were seriously prejudicial to the appellant.

(iii) The learned trial judge erred in law and/or fact in dismissing the appellant’s application for judicial review.

(iv) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to relief prohibiting and/or staying the DPP from proceeding with the trial of the appellant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28th October 2010 in proceedings entitled “The Director of Public Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox.”

(v) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to damages pursuant to section 3 of the European Convention on Human Rights Act 2003.

(vi) The learned trial judge erred in law and/or fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not of itself sufficient to jeopardise the appellant’s right to a trial in due course of law and/or his right to a fair trial and/or his right to a trial with reasonable expedition.

(vii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute prosecutorial delay.

(viii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not deliberate on the part of the DPP.

(ix) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute blameworthy prosecutorial delay.

(x) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was attributable, in whole or in part, to the appellant’s conduct.

(xi) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file.

(xii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the DPP directed that the appellant be charged without any contact having been made with the appellant.

(xiii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the evidence did not disclose any attempt by the DPP or the investigating authorities to locate or contact the appellant with regard to the allegations the subject matter of the instant proceedings.

(xiv) The learned trial judge erred in law and/or in fact in holding that alleged difficulty in contacting the appellant excused the inordinate delay in his prosecution, when the evidence disclosed that the investigating authorities were in possession of contact information for the appellant through which no efforts were made to locate or contact the appellant.

(xv) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work.

(xvi) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work when (a) Liam Cosgrave and Frank Dunlop have been so prosecuted and/or (b) when the said Tribunal has yet to conclude its work.

(xvii) The learned trial judge erred in law and/or in fact in holding that Frank Dunlop was not available as a witness in the prosecution of the appellant until the proceedings of the Tribunal and/or the prosecution of Frank Dunlop were concluded.

(xviii) The learned trial judge erred in law and/or in fact in holding that the DPP had discharged the onus of excusing the inordinate delay in the prosecution of the appellant.

(xix) The learned trial judge erred in law and/or in fact in failing to hold that the death of material witnesses was such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xx) The learned trial judge erred in law and/or in fact in holding that the unavailability of material documents was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxi) The learned trial judge erred in law and/or in fact in holding that the diminished recollection of witnesses including the appellant attributable to the efflux of time was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxii) The learned trial judge erred in law and/or in fact in holding that the long period that has elapsed from the date of commission of the alleged offences did not give rise to presumptive prejudice to the appellant.

(xxiii) The learned trial judge erred in law and/or in fact in holding that the delay in the prosecution of the offences alleged against the appellant has not caused excessive stress and anxiety to him.

(xxiv) The learned trial judge erred in law and/or in fact in holding that the balance of justice lay in favour of the prosecution of the appellant.

Submissions
18. Oral and written submissions were made, on behalf of the appellant and of the DPP, to the Court. In oral submissions counsel for the appellant indicated that the core issue on the appeal was the delay by the DPP in advancing the prosecution, under the Constitution of Ireland and under the European Convention on Human Rights. However, before addressing those matters, counsel advanced a submission on a matter of disclosure.
19. I shall address the three core issues in the following order:-

(a) Disclosure;
(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

(a) Disclosure
20. The matter of disclosure was the first specific issue raised by counsel for the appellant on the appeal.
21. The issue arose because after the papers were filed in the judicial review proceedings in the High Court, including affidavits by members of An Garda Síochána, an application for discovery was made by the appellant seeking documents, including correspondence referred to but not exhibited in the affidavits of Detective Garda Martin Harrington and Detective Sergeant Michael V. Byrne.

22. The application for discovery was heard by Hedigan J., who gave judgment on the 12th July, 2011. Most of the discovery sought was refused, but the learned High Court judge ordered the DPP to make discovery of the correspondence referred to but not exhibited in paragraph 92 of the affidavit of Detective Garda Martin Harrington of the 2nd June, 2011, and paragraph 15 of the affidavit of Detective Sergeant Michael V. Byrne of the 1st June, 2011.

23. Privilege over this correspondence was claimed by the DPP, on the basis of legal professional privilege and/or public interest privilege. The appellant obtained leave to issue a motion seeking inspection of the documents, and this motion was considered and ruled upon by Hedigan J. before the commencement of the application for judicial review.

24. When the judicial review came before the High Court on the 21st July, 2011, counsel for the appellant said:-

“Just to let the Court know the running order. There is an issue on disclosure which we request the Court perhaps to deal with first and then our judicial review application itself to proceed, because part of our issues is in that context compliance with the order and that question of disclosure.”
The learned High Court judge acceded to this request.
25. During the hearing of the motion on privilege, counsel for the DPP suggested that the learned High Court judge view the documents so that he could decide whether they should be produced for inspection. The appellant objected to the procedure. However, the learned High Court judge viewed the documents.

26. The learned High Court judge then ruled on the application. He refused the application on the basis that the public interest in maintaining the confidentiality of the documents outweighed the interest of the appellant.

27. It was submitted on behalf of the appellant that the procedure adopted by the learned High Court judge was unfair to the appellant. It was submitted that the practice generally adopted, when a claim of privilege is challenged, is that the documents are examined by a judge other than the judge hearing the substantive proceedings. It was submitted that justice should not only be done but be seen to be done and that in this case the learned trial judge had examined the documents, which he held to be inadmissible. Also, during the case the learned trial judge had referred to some of the documents stating that they were “highly prejudicial” to the appellant.

28. On the issue of disclosure two aspects arose:-

(a) a question of law, arising on the submissions of counsel for the appellant on the decision in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24, referred to as “The Edwards Case”; and
(b) a question of objective bias, raised by counsel for the appellant.

(a) The Edwards Case
29. It was submitted by counsel for the appellant that the procedure adopted by the High Court was unfair to the appellant, and reliance was placed on the Edwards case.
30. Counsel for the appellant stated, on the 21st July, 2011, at pp. 76 to 77 of the transcript, on the application for privilege on the documents discovered:-

“MR. O’BRAONÁIN: There is an issue as to whether or not the Court should inspect the documents at this stage, and the issue is this: Certainly in the case – Mr. Hayden very helpfully drew my attention to it – in the case of Edwards and Lewis in the United Kingdom, which is a decision of the European Court of Human Rights. It is reported at 2005 40 EHRR page 24. I am referring to Mr. Hollander’s text on documentary evidence. The Court held that the procedure that had been adopted in that case was inadequate to protect the Defendants. And, in my respectful submission, the procedure that is being suggested here suffers from the same inadequacy, and it is this: There the “Defendants complained that they had been entrapped into committing the offence by undercover police officers or informers and asked the trial judge to consider whether certain prosecution evidence should be excluded for that reason.
”The Defendants were denied access to the undisclosed evidence. The judge, who rejected the Defence submissions, had himself seen the undisclosed Prosecution evidence and ruled it irrelevant. The Court was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the Defence were not permitted to see. The European Court of Human Rights held that the procedure deployed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”

And the Court could see that in the ordinary course of things —

MR. JUSTICE HEDIGAN: But the rationale of that would, in effect, bar me from being the Trial Judge in the criminal case.

MR. O’BRAONÁIN: No, the rationale from that would bar you from being the Trial Judge in the judicial review proceedings.”

31. On the 22nd July, 2011, the High Court ruled on the application for privilege, which is to be found on the transcript at pp. 1 to 3:-
“MR. JUSTICE HEDIGAN: In these proceedings on the 12th of July, 2011, I made an Order of Discovery pursuant to Order 31 of the Rules of the Superior Courts in respect of the correspondence referred to in paragraph 92 of Garda Martin Harrington’s affidavit and paragraph 15 of Garda Michael Byrne’s affidavit.
Owing to the shortness of time, I stated in that decision that any claim to privilege over this documentation might be decided when the case came on for hearing.

Privilege is claimed over the correspondence on the basis of either legal professional privilege or public interest privilege.

I have inspected the documentation, as I believe that a judge hearing such an application as this ought to satisfy himself that there is nothing contained therein which privilege duly considered ought in the interests of justice be inspected by the [appellant], even on certain terms, as to preserving confidentiality.

On the basis of this inspection, it is clear the correspondence referred to by Garda Harrington involves letters between the DPP and investigating Gardaí as to the ongoing investigation and details of a confidential nature of interviews with Frank Dunlop. I can find nothing in these letters which advances or diminishes the case of either side. They are exactly as described in paragraph 92. There is an important public interest in the confidentiality of correspondence of this nature. A frank assessment of the strength of a case and of the credibility of the proposed witnesses is contained therein inevitably. That is so in this case. This public interest might well be outweighed by the [appellant’s] right to a fair trial of the issue before the Court. However, I could find nothing in my inspection of this correspondence that could outweigh the public interest in their confidentiality. I refuse inspection of this category of documentation.

As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is very tangential to the charges faced by the [appellant] and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the [appellant]. Their production, in my opinion, could only damage the [appellant’s] case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries. It must be an important aspect of the international fight against crime of all nature, including corruption. As there is no interest of the [appellant] that I can find to balance against the public interest, I will refuse inspection of this category also.

Needless to say, as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.

That is the decision.”

32. The facts in the Edwards case included the following. Mr. Edwards was arrested following a surveillance and undercover operation. He was in a van with an undercover police officer and a briefcase containing heroin. He was convicted of possessing a Class A drug with intent to supply and sentenced to nine years’ imprisonment. He unsuccessfully appealed this decision in the United Kingdom.
Mr. Lewis was arrested in a separate incident by uniformed police officers in a pub car park after he had shown two undercover police officers some counterfeit bank notes. More counterfeit notes were found in his house. He pleaded guilty to three charges of possession of counterfeit notes with the intention of delivering them to another. He was sentenced to four and a half years’ imprisonment.

In both cases an application by the prosecution to withhold material evidence had been granted on the ground that it would not assist the defence and that there were genuine public interest reasons for not disclosing it. The judge also refused a request to exclude the evidence of the undercover officers.

In its Chamber judgment of the 22nd July, 2003, the European Court of Human Rights, referred to as “the ECtHR”, held unanimously that there had been a violation of Article 6.1 and that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damages sustained. In finding this violation, the Court stated that this did not entail that the applicants were wrongly convicted.

33. Thus in the Edwards case the ECtHR held that the procedure adopted in that case was inadequate to protect the defendants. The facts of that case included that it was a criminal trial and that the defendants had claimed that they had been entrapped into committing the offences by undercover police officers. An issue arose as to whether certain documents should be disclosed. The trial judge saw the documents and denied the defendants access to the documents on the grounds that they were irrelevant, would not assist the defence, and that there were genuine public interest reasons for not disclosing the material.

34. As was pointed out in Hollander, Documentary Evidence [10th Ed., Sweet & Maxwell, Thompson Reuters, 2009] para 18-11, p. 395:-

“The ECtHR was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the defence were not permitted to see. The ECtHR held that the procedure employed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”

It is also an interesting factor, as pointed out by Hollander, at p. 395, that:-
“Whilst granting a declaration of violation of Art. 6 rights, the ECtHR expressly found that the violation of Art. 6 rights did not entail that the defendants were wrongly convicted.”
35. The procedure of inspection of documents by a court of trial is a very useful one and is often very much in the interest of the party challenging the privilege claimed. The Edwards case relied on by the appellants, refers to a criminal trial. The case before this Court is a civil process, arising on an application for judicial review. The Court was referred to no authority, either in a legal text or in a case of the ECtHR, which has applied the Edwards case outside the criminal law. It would be pure speculation to consider whether the Edwards case would apply to a civil case, such as is before the Court. The High Court did not apply the Edwards case and, in all the circumstances, I would not intervene in the determination of the learned High Court judge on this issue.
(b) Objective bias
36. The second aspect of the submission on behalf of the appellant in relation to the issue of disclosure was a claim of objective bias. Counsel for the appellant submitted, in essence, that the learned trial judge should not have proceeded to hear the application for judicial review on the grounds of objective bias, that he should have recused himself.

37. Counsel argued that the application made by counsel in relation to the Edwards case covered this aspect of the law also, covered an application in relation to objective bias, and that the learned trial judge ought to have recused himself.

38. There are a number of factors to be considered.

39. The learned High Court judge’s ruling, in relation to the request for the documents relating to the Isle of Man authorities, stated that it was “very tangential” to the charges faced by the appellant. Obviously documents that are very tangential are of at least questionable relevance.

40. The learned trial judge continued and stated:-

“Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the applicant. Their production, in my opinion, could only damage the applicant’s case herein.”
This passage was drawn to the attention of this Court by counsel for the appellant. However, this was an ex tempore ruling of the learned High Court judge and must be considered as such and while he states that the documents seem “highly prejudicial” to the appellant, he stated also that they “could only damage the [appellant’s] case herein”. Such reference appears to be to the appellant’s application for judicial review, and to it being damaged.
41. The learned trial judge then stated:-

“I will not take any of its content into account in my consideration of this application.”
In those circumstances I am satisfied that it is entirely appropriate to rely on the High Court’s ruling that the content would not be taken into consideration on the hearing of the application
42. As the application before the High Court on the issue of disclosure drew to a close, there were exchanges on the issue of costs, and the High Court ordered “no order as to costs” in these circumstances on that application. Counsel for the State indicated that he was obliged.

43. The High Court judge said at page 4 of the transcript for the 22nd July, 2011:-

“Very good. Then we will continue.”
Counsel for the appellant then stated:
“Judge, I’m dealing with the substantive application, and I mean, the Court has between the Discovery and, obviously, the associated case and the application relating to Discovery a fair idea and background as to what is at issue. And subject to the Court, I will go through the affidavits in general form, but unless the Court wishes and My Friend …”
And so the application by way of Judicial Review for an injunction of the criminal trial commenced, and there was no request to the learned trial judge to recuse himself on the grounds of objective bias.
Law on objective bias

No law as to objective bias was opened to the High Court. There was no reference to cases such as Dublin Wellwoman Centre Ltd v. Ireland [1995] 1 I.L.R.M. 408; Bula Ltd. v. Tara Mines Ltd (No. 6.) 4 I.R. 412, and Kenny v. Trinity College Dublin [2008] 2 l.R. 40. Neither the general principles nor the case-law were opened to the High Court.

Circumstances
45. The circumstances of this case include the following:-
(i) the issue of objective bias did not, and could not, arise until after the learned trial judge had given his ruling on the issue of the Edwards case;
(ii) the law on objective bias was not opened to the High Court;

(iii) there was no application to the learned trial judge to recuse himself on the basis of objective bias;

(iv) there was no decision on the issue of objective bias in the High Court;

(v) an issue not raised or determined in a trial court may not be an issue in a subsequent appellate court.

Thus the issue of objective bias may not be raised in this Court.
46. Even if the issue of objective bias had been raised and determined in the High Court, which it was not, I am satisfied that, applying the test as set down in our case-law, there was no objective bias in this case.

47. Consequently, I am satisfied that the appellant has not established a basis upon which his appeal could succeed on the first issue, i.e. the issue of disclosure, and I would dismiss this aspect of the appeal.
Right to an expeditious trial
48. I shall now consider the second issue on this appeal. Under this rubric the appellant has raised: (i) the right to an expeditious trial; (ii) prosecutorial delay; (iii) stress and anxiety.

49. Counsel for the appellant raised the issue of delay in prosecuting the appellant and referred to several articles of the Constitution. The Constitution does not expressly state that there is a right to an expeditious trial, but counsel referred the Court to Article 38.1 of the Constitution which provides:-

“No person shall be tried on any criminal charge save in due course of law”.
Reference was made also to Article 40.3.1° of the Constitution which states:-
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
It was submitted that the appellant has a personal right to an expeditious trial.
50. A personal right to a trial with reasonable expedition has been recognised by this Court. In State (O’Connell) v. Fawsitt [1986] I.R. 362, Finlay C.J. at p. 378, with whom Walsh J.,Henchy J., Griffin J., and McCarthy J. agreed, stated that:

“…a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition”.

At p. 379 he stated further:-

“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition.
[…]

A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before a jury.”

51. This right was considered recently in P.M. v. Malone [2002] 2 IR 560 where Keane C.J. held, at pp. 572 to 573:-
“It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.

The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.

There are thus three interests of defendants which the right to a speedy trial is intended to protect, the third being the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo (1972) 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] AC 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.”

52. The three interests protected were set out in Barker v. Wingo (1972) 407 U.S. 514 at p. 532 as:-
(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and

(iii) to limit the possibility that the defense will be impaired.

53. Thus, while the right to an expeditious trial is not expressly stated in the Constitution, it has been recognised as a personal right of an accused. The question then arises as to whether the appellant’s right has been impaired. Therefore, the circumstances of a case require to be analysed to enable a determination as to whether the personal right of an accused has been breached.
Pre-trial incarceration
54. As the appellant has been on bail there is no pre-trial incarceration issue in this case. Thus, this aspect of an infringement of the right does not arise.
Stress and anxiety
55. The appellant did raise the issue of stress and anxiety. However, no evidence was before the Court to establish this ground. As has been stated previously, it is necessary to provide an evidential basis to establish this ground so as to prohibit the trial.

56. There is well established jurisprudence that such a claim may not succeed where an appellant is suffering from normal stress and anxiety from a pending prosecution. Evidence is required to ground any exercise of discretion by the Court in favour of an applicant: P.M. v. Malone [2002] 2 IR 560. In this case the appellant has laid no such foundation, and hence may not succeed on this submission.

57. Further, even if evidence was before the Court as to specific stress and anxiety, the Court is then required to engage in a balancing process between an accused’s right to be protected from such stress and anxiety and the public’s interest in the prosecution and conviction of those guilty of criminal offences.

58. Thus, this aspect of an infringement of the right does not arise.
Delay – impairment of trial?
59. Counsel for the appellant submitted that there had been delay in the prosecution of the appellant such that the prosecution should be prohibited.
Prosecutorial Delay
60. There has been delay in bringing these prosecutions. However, that is not the test, as this is a criminal trial, the issue is that of prosecutorial delay. Thus, it is necessary to analyse the prosecutorial delay and all the circumstances of the case.

61. The chronology of the investigation is set out in the affidavits of Detective Garda Harrington sworn on the 2nd June, 2011, and the 19th July, 2011, and the affidavit of Detective Sergeant Michael V. Byrne sworn on the 1st June, 2011. It was an extensive investigation. Many people had to be interviewed regarding the serious allegations which had been made.

62. While there was some evidence of difficulty in contacting the appellant, who seeks to maintain a residence outside the State, and the learned High Court judge gave some weight to that factor, the core reason for the delay in the prosecution of the appellant appears to have been the decision of the DPP in relation to Frank Dunlop. It is apparent that the DPP decided not to prosecute the appellant until a key witness in any trial of the appellant, Frank Dunlop, had been prosecuted and decision of conviction or acquittal obtained.

63. I am satisfied that it was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop on corruption charges before prosecuting the appellant. It was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop before calling him as a witness in a prosecution against the appellant. For, amongst other factors, if Frank Dunlop had been called as a prosecution witness, in circumstances where he had not already been convicted and sentenced, there could be a perception that he was simply giving evidence to secure some benefit for himself and his status as a witness could have been undermined.

64. I reach the same conclusions as in Cosgrave v. Director of Public Prosecutions [2012] IESC 24, where I stated in paragraph 59:-

“There has been delay in the prosecution of the current charges on corruption. However, the reason for the delay, the fact that the DPP waited until Frank Dunlop was prosecuted and convicted before he brought these charges, grounded on the evidence of Frank Dunlop, is reasonable. Indeed, if this prosecution had been brought prior to the prosecution of Frank Dunlop it would have left the prosecution open to challenge as to the status of Frank Dunlop as a witness. In fact, in this appeal the issue of delay is subsumed in the issue of abuse of process, upon which I have reached a decision as stated previously.
However, it is also a factor, which it is not necessary to weigh in the balance in this case, that it is not the appellant’s interests only which have to be considered. It is necessary to balance the appellant’s right to reasonable expedition in the prosecution of the charges with the community’s right to have the criminal offences prosecuted. In cases such as this, where there are charges of corruption of public officials, there is a very significant public interest in permitting such allegations to proceed to trial.”

I adapt and apply the same reasoning in this case.
65. I am satisfied that while there was delay, the reasons given by the DPP for the delay, including the unavailability of the key witness, Frank Dunlop, to give evidence, are reasonable.

66. Consequently, I do not find that there is blameworthy prosecutorial delay in this case. Therefore, there is no need to take any further step to analyse and balance conflicting interests on this aspect of the case as blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial. An applicant would have to establish also that one of his interests protected by his right to an expeditious trial has been interfered with: P.T. v. Director of Public Prosecutions [2007] 1 I.R. 701; D. v. Director of Public Prosecutions [1994] 2 I.R. 465; P.M. v. Malone [2002] 2 IR 560; P.M. v. Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172.

67. Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP, a further analysis would be required to determine if there had been consequential prejudice to the appellant. While it is not necessary to take this further step, in the circumstances, I do address the matter.
Prejudice
68. Counsel on behalf of the appellant submitted that as a consequence of the delay in the prosecution the trial of the appellant would be prejudiced.

69. Counsel on behalf of the appellant has submitted that his trial would be prejudiced by the deaths of a number of potential witnesses, being (i) Councillor Sean Gilbride on the 1st January, 2011, who was also charged with the appellant; (ii) Councillor Frank Smyth on the 24th May, 2003, (iii) Philip Monahan on the 3rd August, 2003; (iv) Dr. Brian Meehan on the 13th June, 2004 and (v) Liam Lawlor on the 22nd October, 2005. Other potential witnesses had died prior to Frank Dunlop’s evidence to the Tribunal and the beginning of the criminal investigation arising as a result; these were Councillor Tom Hand who died in 1996; Fintan Gunne on the 9th October, 1997; Councillor Jack Larkin in May 1998 and Councillor Cyril Gallagher in March, 2000.

70. In written submissions the appellant referred to nine potential witnesses who have died and who might have corroborated his version of events surrounding the charges against him. However, during the Supreme Court hearing, questions from the Court to counsel for the appellant highlighted that four of these witnesses had died before the allegations of Mr. Dunlop were aired in the Tribunal and the Garda investigation into offences of corruption began. Also, O’Donnell J. pointed out the inconsistency between the appellant’s written submissions and his affidavit regarding the death of Mr. Fintan Gunne, who died on the 9th October, 1997, as opposed to 2007, which was the date referred to in the written submissions. Thus, it was open to the appellant to say that five witnesses have died since the Garda investigation began.

71. However, having heard the submissions on this issue, I am not satisfied that the prejudice alleged is such as to prohibit a trial, as the deaths of witnesses referred to relates to evidence, the essence of which can be obtained from other sources. In fact, when this matter was addressed during the hearing it became clear that there was insufficient engagement with the facts so as to show that there was a real risk of an unfair trial. Indeed the argument fell apart and the prejudice was not established.

72. This case is unlike a situation where many years after an event, without prior notice, an accused is charged with an offence from many years ago. The matters raised in this trial have been known to the appellant throughout the intervening years as they have been raised in other fora. Therefore, it is not a case where issues may have lain dormant for many years and then unexpectedly been raised out of the blue.
European Convention on Human Rights
73. The appellant, in his Notice of Motion applying for judicial review, claimed the following relief:-

“Damages pursuant to section 3 of the European Convention on Human Rights Act 2003”.
This was repeated in the statement of grounds grounding the application for judicial review.
74. However, such damages were not sought in the High Court.

75. Counsel for the appellant informed this Court that he had not made and did not make a claim for damages. He stated that no order for damages was sought in the High Court nor was it advanced in this Court.

76. Therefore, the issue of damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003, was not, and could not be, an issue before this Court. Clearly, a decision was taken by and on behalf of the appellant not to pursue this remedy. In other words, the claim for damages was abandoned. Therefore no such issue falls to be determined in this Court

In written submissions on behalf of the appellant reference was made to Article 6(1) of the European Convention on Human Rights, which provides, inter alia,:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
78. Reference was made also to s. 3 of the European Convention on Human Rights Act, 2003, which provides:-
“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.”

79. However, as the appellant did not advance his claim for damages, it was not an issue determined in the High Court and was not an issue advanced in this Court.
80. The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused under Irish jurisprudence. I have had no case open to me where a decision of the ECHR determined that as a consequence of delay a trial shall be prohibited. Consequently, as the remedy sought by the appellant was to prohibit his trial, an option under Irish law, but not apparently under the ECHR, consequently this claim has been determined on Irish law.

81. The fundamental facts in this case are that the appellant was charged with 16 charges on the 22nd October, 2010, the Book of Evidence was served on the 28th October, 2010, and the trial date was set for the 5th October, 2011. However, that trial date had to be vacated as the appellant brought these proceedings by way of judicial review, which he initiated on the 7th March, 2011. His application was dismissed by the High Court on the 28th July, 2011, and he exercised his right of appeal to this Court.

82. On his appeal to this Court he sought to prohibit his trial as set out earlier in the judgment.

83. For the reasons given, I would dismiss the appeal and affirm the order of the High Court. Thus, the trial of the appellant may proceed.

JUDGMENT of Mr. Justice Fennelly delivered the 7th day of June 2012.

1. I agree that this appeal should be dismissed. I agree with the judgment which has been delivered by the Chief Justice on the issue of delay. The Chief Justice has given an outline of the facts and history of the case which I gratefully adopt. I write separately only on the issue of objective bias.

2. Counsel for the appellant submitted at the hearing that the learned High Court judge should not have heard the case. The reason was that the judge had seen evidence, not disclosed to the parties, which he described as being “highly prejudicial to the applicant.” Consequently, it is argued, he should have recused himself.

3. The procedural background is as follows. The respondent claimed to be entitled to refuse to produce certain documents whose existence was disclosed in the affidavit of discovery sworn on his behalf, based on legal professional privilege and/or public interest privilege. The appellant issued a motion seeking inspection of the documents over which privilege was claimed, to be heard at the commencement of the hearing of the application for judicial review.

4. Counsel for the appellant objected to the proposal made by counsel for the respondent that the learned judge should himself view the documents to enable him to decide whether they should be produced for inspection. The objection was that this would be an unfair procedure because, if the judge were to rule that the appellant was not entitled to see the documents, the judge would himself have seen them and that there was a risk that he could be influenced by his inspection of the documents. The objection was overruled and the learned judge proceeded to view the documents. As the Chief Justice has explained in her judgment the objection was based on the decision of the European Court of Human Rights in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24.

5. In the course of making his objection, counsel for the appellant submitted that the rationale of that decision was, not that it would bar the judge from subsequently being the trial judge in ensuing criminal proceedings, but, as counsel specifically objected, it would bar him from being the judge in these very judicial review proceedings. He submitted that, although a judge might inspect documents in private for the purpose of determining a disputed issue of privilege, a different judge should then hear the substantive proceedings.

6. The learned judge decided that he would inspect the documents. He did so and then made the ruling which is the gravamen of the allegation of objective bias. He ruled that the public interest in not disclosing the documents outweighed any interest of the appellant. Indeed he could find nothing in the latter respect which could outweigh that public interest. He then proceeded to make the remarks to which objection has been taken:

“As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is a very tangential to the charges faced by the Applicant and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the Applicant. Their production, in my opinion, could only damage the Applicant’s case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries….”

The learned judge added: “as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.”

7. Counsel for the appellant then proceeded, without any break in the hearing, to present the application for judicial review. No objection was taken to the above remarks, although it is now contended that they exhibit objective bias on the part of the trial judge. Specifically, it is said that the judge acknowledged having seen documentation which was “highly prejudicial” to the appellant and that it was such that it, in his opinion, “could only damage the Applicant’s case herein.”

8. In response to the appellant’s argument that the learned judge was obliged to recuse himself so as to permit a different judge to hear the application for judicial review, the respondent lays particular emphasis on the absence of any objection to that effect. Counsel relied on the decisions of this Court in State (Byrne) v. Frawley [1978] IR 326; Corrigan v. Irish Land Commission [1977] IR 317). The effect of those decisions is that, by virtue of estoppel or waiver, a person may be precluded from relying on a ground of objection which was not made at the appropriate time.

9. Before considering any authority, I propose to examine the remarks of the trial judge to which objection was taken. It must be remembered that these remarks were made ex tempore and cannot be expected to have the coherence and logic of a written text. The first point to note is that the learned judge found it difficult to see any relevance in the documentation. It was, he said, “tangential” both to the criminal charges the appellant was facing and to the case he was making in the very judicial review application itself. Taken on its own, therefore, the judge’s remark that the documents were “highly prejudicial” cannot, in logic, give rise to any prejudice related to the issues in the present case. It is only the ensuing remark that the documentation, if produced, “could only damage the Applicant’s case herein,” which is problematic. It is inconsistent with what went before and a great deal of meaning has to be placed on the single word “herein.”

10. I am prepared to accept, however, that, read literally, this part of the judge’s remarks could be read as indicating that what he had seen documentation which would be prejudicial to the appellant. Whether the words meet the standard of the reasonable objective bystander seems, however, to be doubtful. The test has been restated many times in recent years and is usefully encapsulated in the judgment of Denham J (as she then was) in Bula Ltd. v Tara Mines (No. 6) [2000] I.R. 412 at page 441:

“However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person”.

11. Keane C. J. expressed the matter in very similar terms Orange Communications Ltd. v Director of Telecoms (No. 2) [2000] 4 IR 159 at 186 as follows:

“While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in the light of the two [Irish] authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.”

12. It is not unfair to test the matter in this case by reference to the reaction of counsel for the appellant, who might be expected to be astute to raise an objection of bias, having regard to the submissions they had made to the learned judge before he gave his ruling. The fact that no objection was made must lead to the inference that it did not appear to counsel listening to the judge’s ruling that he was exhibiting signs of objective bias. The situation is analogous to that which not infrequently presents itself to the Court of Criminal Appeal, where counsel advances an objection which was not made at trial. The court is sceptical as to the merits of any objection of which it did not occur to counsel to make at the time and, in particular, discourages the practice of “trawling” through the transcripts in search of possible grounds of complaint.

13. Corrigan v. Irish Land Commission concerned an objection made by way of appeal on a point of law to the Appeal Tribunal of the Land Commission and thence to this Court to the fact that the two land commissioners who had certified that the land proposed to be acquired was necessary for the relief of congestion also sat as the Lay Commissioners to determine the landowner’s objection. No objection was made to the lay commissioners themselves when they sat to hear the objection. Henchy J considered that two experienced counsel who appeared for the objector had consciously and knowingly accepted the composition of the tribunal. Writing for the majority of this Court (Kenny J dissenting) said, at page 324, that he considered “it to be settled law that………………if [a party] expressly or by implication acquiesces at the time in that member taking part in the hearing and in the decision, he will be held to have waived the objection on the ground of disqualification which he might otherwise have had.” In the particular case, Henchy J held that any objection to the participation of a particular commissioner had been “knowingly waived by counsel for the appellant when they elected to accept the tribunal as they found it composed o the day of the hearing.”

14. Griffin J, who agreed with Henchy J, cited authority to the effect that a waiver must be intentional and emphasised the need for knowledge of what was being waived. For my part, I would be slow to hold that counsel had knowingly waived a ground of objection available to his or her client in the course of a hearing and without the opportunity for consultation. In Corrigan Henchy J went to great lengths to infer from the status of counsel and their advance knowledge of the composition and procedures of the Land Commission that they had knowingly and deliberately waived any objection by their acquiescence.

15. The present case is, I think different. There can be no suggestion, nor has one been made, that counsel made the sort of calculated decision which arose in Corrigan. On the other hand, I do not think the words used by the learned High Court judge, when considered in context, are capable of being interpreted as exhibiting bias on his part. He said, in effect, that he had seen material which was highly prejudicial to the appellant, but it was tangential to any issue in the judicial review proceedings and he had difficulty in seeing its relevance. The fact that counsel did not object is itself strongly indicative of the fact that no “reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue.”

16. It would be possible to rule against the objection simply on the ground that there is no ground of appeal related to it. The first two grounds of appeal repeat the objection made in the High Court to the judge inspecting documents, despite the objection of the appellant, over which the respondent had asserted privilege. There is no ground expressly covering the distinct complaint that the learned judge had, in the course of his ruling on the first issue, shown bias by saying that he had seen material which was “highly prejudicial” to the appellant. Like Clarke J, I would be slow to rule against the appellant on that ground alone. However, it seems to me that the absence of any such ground of appeal provides further confirmation of the fact that it did not appear to the parties at the time that there was any ground for asserting objective bias.

17. I have had the opportunity of reading in draft the judgment which Clarke J is about to deliver. I full agree with his treatment of the procedural issue of examination of documents by a trial judge of documents over which privilege is claimed. I also agree with his treatment of the issue of delay considered in the context of the European Convention of Human Rights. I would prefer to reserve for another occasion consideration of the correct burden to be imposed on an application for prohibition of a criminal trial on the ground of delay generally. For the present case, the test of a real risk of an unfair trial suffices.

Judgment of Mr. Justice Clarke delivered the 7th June, 2012.

 

1. Introduction
1.1 I agree with the Chief Justice that this appeal should be dismissed and the order of the High Court affirmed. However, my reasons for coming to that conclusion differ in some respects from those of the Chief Justice and those reasons might be thought, at least to some extent, to suggest a possible evolution of the jurisprudence in this area.

1.2 Therefore I set out in this judgment some observations on the legal principles behind some of the issues which arise in this case. However, given that, on the facts of this case, the evolution in the jurisprudence which those observations might suggest may not be decisive, my suggestions should be regarded as tentative. The one point of substance on the facts of this case on which I respectfully disagree with the Chief Justice arises equally if the existing jurisprudence is applied unchanged.

1.3 In addition it is, in my view, important to keep clear the distinction between the different rights asserted as being applicable in this case and also to keep clear the implications and consequences which arise from possible breaches of, on the one hand, the Constitution and, on the other hand, rights guaranteed under the European Convention on Human Rights (“ECHR”). I also include, therefore, some observation on the relevance of those distinctions to this case.

1.4 Those distinctions are of particular importance when a challenge is brought on a wide range of grounds invoking different rights or different aspects of rights deriving from both the Constitution and the ECHR. I do not think it would be unfair to characterise the challenge initiated on behalf of the applicant/appellant (“Mr. Kennedy”) as involving something of a scattergun approach. While it is, of course, the right of any litigant to place before the Court argument based on any proposition where the raising of the issue concerned does not amount to an abuse of process, it nonetheless remains the case that a court, when faced with a scattergun approach, has to exercise significant care in identifying with some precision the issues that fall for determination and the precise rights invoked which are relevant to each specific issue. Against that background I now turn to the facts and issues of the case.

 

2. Facts and issues
2.1 The background facts are fully set out in the judgment of the Chief Justice and it is unnecessary to repeat them here. In addition the three issues raised by counsel for Mr. Kennedy in this appeal are also identified in that judgment.

2.2 However, at this stage I should also record that there was, it seemed to me, a tendency on the part of counsel for Mr. Kennedy to conflate the issues which arose under the ECHR with those which arise under the delay jurisprudence of the Irish courts. Therefore before going on to consider those issues it does seem to me to be important to set out in clear terms the respective applications of both the Constitution and the ECHR to the issues which arise in this case. However, before turning to those questions I propose to add some observations on the disclosure issue noted in the judgment of the Chief Justice.

 

3. The Disclosure Issue
3.1 As appears from the facts set out in the judgment of the Chief Justice the central underlying issue under this heading is as to whether it was appropriate for the trial judge to look at the documents in respect of which public interest or executive privilege was asserted while at the same time retaining seisin over the substantive judicial review proceedings. In addition to that underlying issue there is a second question as to what precise issues remain properly before this Court by virtue of the events which occurred at the trial in the High Court and the issues raised on the notice of appeal. However, before addressing that latter question it seems to me to be important to analyse the situation which arises when public interest privilege is asserted.

3.2 The overall legal principles are now well settled. As is clear from Ambiorix Ltd & Ors v. Minister for Environment (No. 1) [1992] I.R. 277 and Murphy v. Dublin Corporation of Dublin [1972] I.R. 215 the Court must conduct a balancing exercise between the asserted public interest in the non-disclosure of the materials concerned on the basis of confidentiality attaching to the exercise of the executive power of the State, on the one hand, as against the public interest in the relevant materials being adduced in evidence before the Court at trial so as to assist in the administration of justice and so as to contribute to the fairness of the trial process, on the other. It is also well established that, in an appropriate case, in seeking to exercise that balance, a judge may review the documents or materials concerned so as to form an opinion as to the weight to be attached to the confidentiality asserted on behalf of the executive and to balance that weight against the importance of the relevant materials to the issues which are likely to arise at the trial.

3.3 It is against that background that, as a matter of Irish constitutional jurisprudence, a determination has to be made as to which judge should review the documents in question for the purposes of engaging in such a balancing exercise. The argument in favour of the trial judge reviewing the documents stems from the fact that the trial judge will have a much better understanding of the issues which are likely to arise in the case and thus may be able to assess, with much greater precision, the importance of the documents to the case. As that is an important part of the balancing exercise which must be engaged in, it clearly is a factor to which appropriate weight should be attached in deciding which judge should examine the documents in question. On the other hand the argument in favour of a judge different from the trial judge reviewing the documents or materials stems from the possibility that the trial judge will, in reviewing the materials, become aware of matters which have not been established in evidence and which will not, in the event that disclosure is not directed, be available to one side of the litigation.

3.4 It seems to me that the decision as to whether it is appropriate that the exercise of scrutinising documents in respect of which public interest privilege has been claimed is to be conducted by the trial judge or by another judge is one which must be conducted on a case by case basis. As pointed out it may well be to the advantage of the party in opposition to the State (obviously in the criminal context the accused) to have that exercise carried out by the trial judge rather than a judge who will, necessarily, have a more limited understanding of the potential importance of any documents to the case which the accused might wish to make. It must be remembered that, precisely because the party in opposition to the State does not get to see the documents and does not, save in the most general way, get to address the importance which the documents might have to his case, the judge is left to form an assessment of the importance of the relevant documents to that party’s case largely on the basis of the judge’s own understanding of the issues. In that context there can be little doubt but that an accused might be disadvantaged by having a judge who is not fully familiar with the issues carry out that assessment.

3.5 It seems to me that there is nothing, therefore, in principle wrong with the trial judge looking at documents for the purposes of determining whether public interest privilege should be upheld. It may be that there will be cases where, having reviewed those documents, the trial judge unfortunately realises that a potential and significant prejudice has occurred which would warrant the trial judge declining to hear the case further. It is for that reason that it is to be strongly recommended that issues of this type are decided in advance of the hearing date so that, in the event that the trial judge does have to recuse, another judge can take over the trial without any difficulty. However, for understandable reasons, such a course of action did not prove possible in this case.

3.6 So far as the analysis of Edwards and Lewis v. United Kingdom [2005] 40 EHRR 24 is concerned and its application (or rather non application) to the facts of this case is concerned, I agree fully with the judgment of the Chief Justice.

3.7 So far as the claim of objective bias is concerned I have come to the view that that issue does arise under the notice of appeal in this case even if not very clearly expressed. Ground of Appeal (ii), as cited in the judgment of the Chief Justice, does seem to me to amount, in substance, to a contention that, in the light of the comments made by the trial judge when he had reviewed the documents (and in particular his reference to same being highly prejudicial) objective bias arises. I would not be prepared to shut Mr. Kennedy out from making the objective bias argument because the ground of appeal concerned may be ambiguous.

3.8 However it seems to me that there is a difficulty with Mr. Kennedy raising that ground at this stage. Without the comment made by the trial judge concerning the documents being highly prejudicial to Mr. Kennedy’s case it is difficult to see how there would be any case in objective bias. Shorn of those comments all that would have occurred is that the trial judge would have looked at documents and found them to be only tangentially relevant. The trial judge would also have declared that he would not take the documents in question into account. If that was all that happened it is difficult to see how there would be any case for objective bias. For the reasons already set out it seems to me that there is nothing wrong in principle with the trial judge viewing documents for the purposes of assessing whether a claim to public interest privilege should be maintained. If, having reviewed such documents, the judge indicates that some are of only marginal relevance to the case and that he will not take them into account, it is hard to see how the notional objective and informed bystander could have any legitimate concerns. The only possible problem that emerges in this case stems, therefore, from the comment of the trial judge to the effect that the documents were highly prejudicial. It was only when that comment was made that, in my view, a stateable case for recusal could be have been raised on behalf of Mr. Kennedy. The problem is that no such case was made on the occasion in question. It would have been open to counsel to argue that, at that stage, and in the light of the fact that the trial judge considered the documents to be highly prejudicial, the trial judge should no longer continue to hear the case. No such submission was made and in those circumstances I agree with the judgment of the Chief Justice to the effect that no such case can now be made.

3.9 I appreciate that in coming to that conclusion I differ to some extent from the views expressed by Fennelly J. in his concurring judgment in this case (a copy of which I have had the opportunity to read in advance). Fennelly J., in that judgment, comes to the conclusion that, properly construed and taken in context, the words of the trial judge could not reasonably be taken by the notional impartial and informed observer to have a meaning sufficient to support the view that the trial judge’s ruling exhibited objective bias. I agree with that analysis of Fennelly J. In those circumstances, even if I had not been satisfied, contrary to the views expressed in the judgment of Fennelly J., that Mr. Kennedy was precluded from raising an argument based on objective bias at this stage, I would nonetheless have held, for the same reasons as are set out in the judgment of Fennelly J., that no objective bias arises. As indicated earlier I propose, before turning to the precise delay issues which arise in this case, to make some observations on the interaction of both the Constitution and the ECHR with the issues which arise in this case.

4. The Constitution and the ECHR
4.1 The ECHR provides an express entitlement to a trial within a reasonable time (Article 6(1)). It does, of course, need to be noted in that context that the relevant obligation in International Law to which Ireland subscribed by ratifying the Convention, is one which rests on the State as a whole so that the State may be found to be in breach of the obligations in question by virtue of actions or inaction on the part of the Executive, the Legislature, the Courts and any other relevant agencies of the state including all persons employed in the process. From the perspective of the European Court of Human Rights (“ECtHR”) it is not particularly relevant to identify or apportion blame between various State actors. Obviously significant contribution to delay by the complainant can be material. However from the perspective of the ECtHR it does not matter whether the delay was caused by prosecuting authorities or by the courts and if by the courts whether the cause or blame for that delay might rest on individual judges, on systemic failures, on the government for failing to resource the system or introduce appropriate legislative or quasi legislative measures to improve efficiency or any of the many other possible causes on which the delay in an individual case might be blamed. The judgments of the ECtHR need to be seen in that light. If, making all allowance for the complexity of the case and any other factors which could legitimately lengthen the time within which the case might expect to be concluded, and paying appropriate regard to any material contribution by the complainant to the lapse of time concerned, the case is nonetheless not finished in a timely fashion then a breach of the Convention will be established and the complainant will be entitled to an appropriate award of damages.

4.2 However it does not seem to me to follow that every case in which the ECtHR determines that there has been a breach of a right to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial, whether for the purposes of the ECHR or under the Constitution (to the extent that there might be any difference in the relevant jurisprudence). Counsel for Mr. Kennedy seemed to suggest that the fact that ECtHR only had jurisdiction to award damages in the event that a breach was established was the only reason why the ECtHR confined itself, in many of the cases, to making a finding of a breach of the right to a reasonably expeditious trial coupled with an award of damages.

4.3 However it seems to me that the distinction between the right to a reasonably expeditious trial and the right to a fair trial, under the jurisprudence of the ECtHR, is much wider than conceded by counsel. The fact that, in either case, the ECtHR is confined to awarding damages, cannot be doubted. However it does not follow that every case in which the ECtHR finds a breach of the right to a reasonably expeditious trial also involves a finding by that court to the effect that the trial was unfair. It further does not follow that it would, necessarily, be a breach of the right to a fair trial under the ECHR to allow a trial to go ahead after a lapse of time which amounts to a breach of the right to a reasonably expeditious trial. The appropriate response to a finding of a breach of the right to a reasonably expeditious trial does not necessarily require that there can be no trial but rather can involve a range of measures including, if appropriate under the law of the relevant contracting State, the award of damages, amelioration of the sentence imposed on conviction in criminal proceedings, or any other measure which the ECtHR might consider to be a proper proportionate and appropriate response to the breach established. It does not, therefore, follow that the ECHR requires, for the avoidance of a breach of its provisions, that a trial be prohibited in every case where there has been a breach of the right to a reasonably expeditious trial.

4.4 As pointed out by the Chief Justice in her judgment, while there was a claim for damages under the provisions of the European Convention on Human Rights Act, 2003 originally made in these proceedings, that claim was not pursued in the High Court and must be now taken to have been abandoned. Therefore the question of whether there has being a breach of the right to a reasonably expeditious trial per se (as recognised by the ECHR) does not arise. Further even if there is such a breach it does not follow that the trial must be prohibited. The only relief sought by Mr. Kennedy is to prevent his trial going ahead. The question of whether there is a breach of his right to a trial with reasonable expedition is not, therefore, of itself, relevant to that question. In that context it seems to me that the trial judge was correct when he cited the judgment of Fennelly J. (speaking for this court) in TH v. D.P.P. [2006] 3 IR 520 where the following is stated:-

“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted … the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.”
4.5 It is, therefore, fundamentally mistaken to view the jurisprudence of the ECtHR on the right to a reasonably expeditious trial as implying that any case in which a failure to provide for such a trial is established necessarily gives rise to an entitlement on the part of the accused to avoid a trial on the merits. I would leave to a case in which a claim for damages for breach of a right to an expeditious trial was pursued, a decision as to whether Irish constitutional law or the ECHR, insofar as it is applicable in Irish domestic law, can give rise to such a claim. I would not rule out such a possibility. There are, however, difficulties which would need to be addressed not least the extent to which such a claim could be maintained where the breach of a right to a reasonably expeditious trial was wholly or substantially attributable to problems encountered in the courts. As pointed out, however, the claim for damages in this case was not pursued and it is not, therefore, appropriate to express any definitive views on that issue.

5. The Irish Delay Jurisprudence
5.1 Turning to the Irish constitutional jurisprudence on delay I am mindful of the fact that this court, and indeed the High Court, has had to deal with a very large number of cases in recent times in which accused persons have sought to prevent a trial on the merits by placing reliance on the lapse of time between the alleged criminal conduct and the trial. I am also mindful of the fact that, in particular in relation to offences involving sexual abuse of minors, the relevant jurisprudence may be said to have undergone a significant evolution. The existing jurisprudence is analysed in the judgment of the Chief Justice. However it seems to me that some analysis of the current state of the jurisprudence is warranted. Given that I agree with the overall conclusion of the Chief Justice it may be that it is unnecessary to express a concluded view on some of these questions. However I do feel that some tentative comment is appropriate.

5.2 First it is important to recall that there is a difference between the right to a fair trial (and the factors which may render a trial unfair) on the one hand and the right to a trial with reasonable expedition on the other hand. There is, of course, a connection. Lapse of time (to use a neutral term) can have an obvious effect on the ability of parties to present their case. But it does need to be noted that the factors which can affect the ability of a party to present its case are not necessarily time dependent. While it is much more likely that witnesses will be missing, documentary evidence be unavailable or forensic investigation and evidence gathering impaired or impossible, where there is a significant lapse of time between the relevant events and a trial, it nonetheless remains the case that any or all of such problems can occur over a short time scale as well. Where a trial comes on for hearing with expedition it may, nonetheless, be the case that witnesses have unfortunately died or become unavailable, that documentary evidence has been misplaced or destroyed or that forensic investigation that might have been useful may have become impossible by, for example, the destruction or alteration of buildings or equipment. While all of these things are much more likely to occur where there is a significant lapse of time it is important to have regard to the fact that such adverse occurrences are not necessarily time dependent.

5.3 Second it also needs to be noted that the fact that there has been some impairment (again to use a neutral term) in the ability, in criminal matters, of an accused to present his defence, does not of itself render a trial unfair. If it were otherwise then there would be very few fair trials for it will always be possible to point to some aspect of the case that an accused wishes or might wish to present which has been impaired even if there is no significant lapse of time. Some impairment in the conduct of litigation is almost inevitable. That impairment may, as a general rule, be expected to increase as time passes. However the fact that there is some impairment could not, in my view, render a trial unfair as such. There may, however, be a threshold where the degree of impairment is such that it can have a decisive effect on the fairness of the trial process.

5.4 I have used the neutral terms “lapse of time” and “impairment” so as to avoid any possible confusion with the terms “delay” and “prejudice” which have come to have a fairly precise meaning in the jurisprudence. That being said I would wish to make clear that I fully agree with the jurisprudence relating to prejudice which requires any allegation of specific prejudice to engage with the facts of the case so as to demonstrate that there is a real impairment, by virtue of the problem relied on, in the ability to present a defence rather than a theoretical possibility which might loosely be summed up under the phrase “you never know what might have turned up”. Likewise I fully agree with the jurisprudence that places reliance on the fact that any impairment in the ability of an accused to present a defence may be reduced, or even completely cured, by other appropriate measures such as directions from the trial judge. It seems to me that the degree of impairment must be assessed by reference to such considerations. Finally, I agree that there are many cases where the best place to identify impairment and to weigh it with any competing factors will often be before the trial judge who will have a much clearer view of the real issues likely to be material. There is, in my view, an excessive tendency to seek to prohibit trials in advance rather than allow the trial judge to decide on impairment or fairness issues.

5.5 In the light of those observations it seems to me that any case made by an accused in which an order is sought preventing a trial going ahead based on an allegation of delay or prejudice needs to take into account two separate types of question although there may, in many cases, be at least some connection between the two. First there is the question of whether the accused can have a fair trial at all. It seems to me that that question is not necessarily dependant on there being any significant lapse of time although, for the reasons already analysed, it is much more likely that the sort of factors which can give rise to a situation where a fair trial is not possible will be present after a significant lapse of time. If, however, the absence of evidence of a particular type is so extreme so as to make a fair trial impossible then that situation exists whether or not the reason for the absence of the evidence concerned is lapse of time, deliberate action by the prosecuting authorities or just bad luck. It seems to me, therefore, that there is an argument for the proposition that an assessment as to whether a fair trial is possible is not dependent either on lapse of time or on culpable prosecutorial delay but rather requires an assessment as to whether, in the light of the evidence that is no longer available and its materiality, a fair trial has become impossible. In passing I should note that this case is not concerned with a situation where material evidence is said to be unavailable, and thus the ability of the accused to defend impaired, by reason of culpable prosecutorial action or inaction separate from delay. In considering, on the facts of any individual case, whether a situation can be said to exist where a fair trial has become impossible the court might, of course, have to assess the extent to which any evidence no longer available might be truly material by reference to the sort of engagement with the facts noted in the jurisprudence and also by reference to other factors identified in the jurisprudence such as the extent to which the absence of the evidence or materials concerned can be partially or wholly cured by measures such as an appropriate direction by the judge to the jury.

5.6 However it seems to me that, in balancing the public interest in stateable criminal prosecutions being tried on the merits with the entitlement of the accused to due process, it is at least arguable that a trial should only be prohibited on the basis of what I might call “no fault impossibility of fair trial” if it is clear to the court which is invited to prohibit the trial that a fair trial is not possible. My reason for suggesting that high threshold is that, in a case where the problems which the accused faces do not derive from any culpable prosecutorial delay, the public interest requires that there be a trial unless the level of impairment of the accused’s ability to mount a defence is so great that the court is satisfied that a fair trial is not possible. It seems to me that it is only at that threshold that prohibition, in the absence of culpable prosecutorial delay, is a proportionate response to the difficulties of the accused.

5.7 Where the degree of impairment falls short of that standard then it seems to me that the court may have to engage in a proportionate balancing exercise of the public interest in prosecution and the rights of the accused. If that be so it seems to me that the first issue which must be addressed is to determine whether there has been culpable prosecutorial delay for in the absence of such blameworthy activity it seems to me that a trial cannot be prohibited unless it meets the high threshold earlier described. Where impairment falls below that threshold then a trial should not be prohibited in the absence of culpable prosecutorial delay. Where, however, such culpable action or inaction is established, it seems to me that the court must take into account all relevant factors in assessing where the balance of justice lies. The Court must fashion a proportionate response to each of the rights involved. The extent of the culpable prosecutorial delay and the effect of any such delay on the impairment of the ability of the accused to mount his defence seems to me to be an important factor. The extent to which culpable prosecutorial delay may have caused or contributed to the other factors identified in the jurisprudence (by reference to Barker v. Wingo [1972] 407 U.S. 514) must also be assessed. Clearly the extent, if any, to which the accused may himself have contributed to the delay needs also to be weighed in the balance. Where the ability of the accused to mount his defence has been impaired by lapse of time not caused by prosecutorial delay then that too should be taken into account but it seems to me that the weight to be attributable to any such impairment must be significantly less than the weight to be attributable to an impairment in the accused’s ability to mount his defence which can be attributable to prosecutorial delay. Finally, and for reasons which I hope will become apparent, of particular relevance to this case it seems to me that culpable prosecutorial delay itself must be weighted in the light of any explanation or excuse given.

5.8 There will be cases where the reason given for the time taken will, in the court’s view, render any lapse of time excusable and thus bring the case outside the scope of those where it can be said that there was culpable prosecutorial delay at all. There may, at the other end of the spectrum, be cases where there is no real explanation at all or none which the court regards as acceptable. However in between those extremes there may be cases (and for reasons which I hope to set out this is one), where it is appropriate to regard the explanation given as going someway towards providing an excuse but not an excuse which is sufficient to provide a complete explanation. In such cases it seems to me that the court should weigh in the balance the extent, if any, to which any prosecutorial delay may be excused. It may well be that such an approach, if ultimately finding favour, would, at least in many cases, not lead to any different result to that which would occur under the existing jurisprudence.

5.9 It seems to me, therefore, that it is arguable that the first question which a court should ask in a delay case is as to whether a fair trial is possible. In other words has the impairment of the accused’s ability to defend himself been so significant that it can no longer be said that the accused can have a fair trial. If the answer to that question is yes then the trial cannot go ahead. It seems to me, at the level of principle, that it is arguable that that question can arise even if there is no culpable or indeed any delay at all for if there cannot be a fair trial then it is hard to see how the court, in vindicating the constitutional right of the accused concerned, can allow the trial to go ahead even if it is no one’s fault. However in order for the threshold necessary to establish that the accused cannot have a fair trial to be met it seems to me that the court would have to be satisfied that the impairment caused by the absence of an ability to present evidence or materials to the court which might otherwise have been available must be so significant that there is, in truth, no real ability to present a defence at all rather than an inability to present as good a defence as might otherwise have been available. I would reiterate that such an assessment is one which is more easily reached by a trial judge rather than a court addressing a prohibition application. It is, however, the possibility that impairment can arise without either fault or delay that leads me to tentatively suggest that a high threshold must be met where it is sought to prohibit a trial without culpable prosecutorial delay.

5.10 Where, however, the degree of impairment is not such as renders a fair trial impossible but where there has been culpable prosecutorial delay such as has significantly impaired the ability of the accused to present his case or caused any of the other adverse consequences identified in Barker v. Wingo then the court must determine where the balance of justice lies. In carrying out that exercise a proportionate response is required. It may well be that such an exercise will be the same, or at least very similar, to that mandated by the existing jurisprudence.

5.11 It seems to me, therefore, that it may well be that the three questions which a court must ask itself in a case such as this are:- (a) is a fair trial possible; (b) if so has there been culpable prosecutorial delay; and (c) if so where does the balance of justice lie. In the light of those observations I next propose to consider the application of those principles to the facts of this case.

6. Is A Fair Trial Possible?
6.1 It is true that some of the persons who might have been able to give evidence which, on one view, might be favourable to Mr. Kennedy, are deceased. However it remains the case that there are other witnesses who can, if their account be helpful to Mr. Kennedy, be called to give evidence directed to at least many of the possible bases on which Mr. Kennedy might seek to defend. As pointed out by the Chief Justice the prosecution case against Mr. Kennedy is very significantly dependent on the evidence of Frank Dunlop.

6.2 Doubtless the credibility of Mr. Dunlop as a witness will be a significant feature at the trial. It is possible to say that Mr. Kennedy may have somewhat less ammunition with which to challenge the credibility of Mr. Dunlop than might have been the case had there been a trial soon after the events alleged to constitute the offences with which Mr. Kennedy is charged. However it seems to me that any impairment which Mr. Kennedy may suffer from in the presentation of his defence falls a long way short of the standard which would allow a court to conclude that it was not possible for him to get a fair trial. In those circumstances it seems to me that the court must next turn to the question of whether there has been culpable prosecutorial delay.

7. Has There Being Prosecutorial Delay?
7.1 The facts relevant to this issue are again fully set out in the judgment of the Chief Justice. I agree with the views expressed in that judgment to the effect that it was reasonable for the D.P.P. to delay prosecuting Mr. Kennedy until such time as Mr. Dunlop had been convicted. It was accepted that there was no rule of law which would have precluded Mr. Dunlop being called as a prosecution witness against Mr. Kennedy. However it does have to be noted that Mr. Dunlop’s evidence, for it to be useful to the prosecution, would necessarily have involved an admission of serious wrongdoing on Mr. Dunlop’s own part. Mr. Dunlop would have been entitled, in those circumstances, to decline to give incriminating evidence. While it might be said that the evidence suggests that Mr. Dunlop was being cooperative at all material times, nonetheless the difficulty in successfully mounting of a prosecution against Mr. Kennedy at a time when Mr. Dunlop would not, in practice, have been a compellable witness (at least so far as much of the evidence sought to be relied on by the prosecution against Mr. Kennedy was concerned), is, in my view, a factor which any reasonable prosecuting authority is entitled to take into account. I am, therefore, satisfied that a decision to defer prosecuting Mr. Kennedy until after Mr. Dunlop had been convicted was not unreasonable.

7.2 However I respectfully disagree with the view of the Chief Justice that that state of affairs provides a full explanation for the lapse of time in this case. A file was sent to the D.P.P. seeking directions in relation to alleged corruption offences relating to Mr. Dunlop, Mr. Kennedy, and certain other persons on 22nd October 2004. While it may be that some additional investigations could have been necessary to ensure that the case against or all of those accused was in a position to be brought to trial, no specific evidence was tendered on behalf of the D.P.P. in that regard. In the absence of any specific difficulty being established in evidence it would, in my view, in the ordinary way have been reasonable to suggest that a prosecution might be brought, even in a complex case, within a number of months of the file being forwarded to the D.P.P. The direction by the D.P.P. that six persons including Mr. Kennedy be charged did not occur until 24th June 2010. There is, in substance, therefore, a lapse of time of the order of five years which needs to be explained. In passing, in that context, I should note that I am not satisfied that there is any culpable prosecutorial delay established for the period after the decision to prosecute was taken up to the arrest and charge of Mr. Kennedy. There was some debate both in the High Court and before this court as to whether efforts could have been made to effect the arrest of Mr. Kennedy on foot of a European Arrest Warrant. However given the difficulties that might well have been encountered with any such process and the fact that delay might well have occurred in attempting to pursue such a course of action in any event, it seems to me that the actions of the prosecuting authorities after a decision was made to prosecute Mr. Kennedy were reasonable.

7.3 The question of culpable prosecutorial delay turns, therefore, on whether there is an adequate explanation for the period of approximately five years which elapsed from the time when it might have been reasonable to expect a prosecution to be brought and when it was actually brought. The question really turns on whether the decision to await the conviction of Mr. Dunlop (which, as I have already indicated, was in itself a not unreasonable position to adopt) amounts to a sufficient explanation for that five year period.

7.4 Where the reason relied on by a prosecuting authority for delaying the commencement of criminal proceedings is the necessity to complete some other process prior to the commencement of those proceedings and where that other process is within the hands of the prosecuting authority itself, it seems to me that the court must assess whether that other process was conducted expeditiously. If it were not so then a prosecuting authority could unfairly delay a criminal prosecution by reference to a factor which, although legitimate in itself, would not justify the lapse of time concerned. I am not satisfied that any adequate explanation has been placed before the court as to why it took so long to actually bring the prosecution against Mr. Dunlop to conclusion. If there be such an explanation it was not one which the court was given an opportunity to analyse. On the face of it the position is that Mr. Dunlop made inculpatory statements at an early stage in the process and would appear, on all the evidence, to have been co-operative with the prosecuting authorities. There is nothing in the evidence to suggest that there was a good reason for waiting until 21st November 2008 to arrest and charge Mr. Dunlop. While I accept, therefore, that the need to improve the position of the prosecution by ensuring that Mr. Dunlop had been convicted before mounting a prosecution against Mr. Kennedy provides, at the level of principle, a legitimate explanation, I am not satisfied that that explanation goes far enough to excuse the lapse of time of five years which I have already identified.

7.5 On that basis I am satisfied that there is a partial but not complete explanation for the lapse of time in bringing the prosecution against Mr. Kennedy in this case. In passing I should note that there is sometimes a tendency to conflate the terminology adopted in the jurisprudence in relation to delay in civil proceedings with the terminology used in relation to criminal proceedings. The term culpable prosecutorial delay is the one most commonly used in the criminal delay jurisprudence. The test in civil delay cases remain that identified in Rainsfort v. Limerick Corporation [1995] 2 ILRM 561 which requires the court, before going on to consider the balance of justice, to determine as to whether there has been “inordinate and inexcusable” delay. However it does not seem to me that there is, in reality, any difference between the two concepts. Inordinate delay implies that the case has taken longer to come to trial than might reasonably be expected for a case of its complexity and having regard to any other legitimate factors that might influence how long it might reasonably take a case of that type to be able to come to trial. “Inexcusable” implies that no adequate excuse has been tendered for any inordinate delay that has been established. Thus the test in civil proceedings involves analysing whether the length of time it has taken for the case to come to trial is too long in all the circumstances and, if so, subject to the extent to which blame may attach to the defendant, whether the plaintiff has put forward a sufficient excuse.

7.6 In truth culpable prosecutorial delay seems to me to raise exactly the same questions. Has the case taken too long to come to trial? If so, can the accused be blamed for any of that lapse of time? To the extent that the accused cannot be blamed has the prosecuting authority put forward an adequate explanation or excuse. If there is too great a lapse of time which cannot be attributed to the accused and for which an adequate explanation or excuse cannot be given then it seems to me that such a situation can properly be described as one where there has been culpable prosecutorial delay.

7.7 As was, in my view quite properly, conceded by counsel for the D.P.P. in this case there is a lapse of time which requires explanation. In the ordinary way it would not be acceptable for a period of over 5 years to elapse from the time when Garda investigations were complete to the time when a trial might take place. I take that view while acknowledging, as pointed out earlier, that in certain types of cases it is likely that the investigations leading to the file being submitted to the D.P.P., no matter how competently conducted by An Garda Síochána, may not be the end of the evidence gathering route from the prosecution’s point of view. It may well be that, when the ubiquitous “Garda file” is sent to the D.P.P. and reviewed by officials in the D.P.P.’s office, An Garda Síochána will be directed to carry out further enquiries for the purposes of supplementing the evidence that might be required in order to present the prosecution case to its best advantage. Some lapse of time for such further enquires might well be reasonable although, in the absence of any specific explanation or evidence, it is hard to see how factors such as that could explain anything other than a relatively brief part of the lapse of time in this case. Taking that factor into account together with what I might call the Dunlop factor provides, in my view, a partial explanation. It seems to me that there has, therefore, being culpable prosecutorial delay but that the degree of that culpability must be assessed by reference to the fact that a partial legitimate explanation has been given for at least a material portion of the lapse of time concerned. Against that background it is necessary to turn to the balancing exercise which must then be conducted.

8. The Balancing Exercise
8.1 I fully agree with the views expressed by the Chief Justice as to the absence of significant specific prejudice caused by culpable prosecutorial delay in this case. As pointed out by the Chief Justice a careful analysis of the witnesses said to be relevant but no longer available makes clear that no potentially important witness would have been available even if a prosecution had been mounted immediately after the Garda file was submitted to the D.P.P.

8.2 The extent to which Mr. Kennedy has been able to demonstrate any significant impairment resulting from prosecutorial delay is, therefore, slight in the extreme. There is a somewhat greater amount of impairment which arises from lapse of time, independent of prosecutorial delay, but for the reasons already analysed in Section 6 of this judgment, that impairment is not at a very high level and in any event, for the reasons already analysed, it is not, in my view, appropriate to place the same weight on any impairment which cannot be attributed to culpable prosecutorial delay. The overall assessment of the impairment to Mr. Kennedy must therefore be towards the lower end of the scale having regard to the virtual non existence of specific impairment attributable to prosecutorial delay, the limited nature of any general impairment caused by lapse of time and, indeed, the fact that any general impairment is significantly reduced by the fact that the issues which are likely to be at the heart of the criminal trial have been a matter of controversy, to Mr. Kennedy’s knowledge, for much of the period between those events and today. This is not the sort of case where a knock comes to the door many years after an event leading the accused (and indeed any other relevant witnesses) with the difficult task of having to recollect events, which occurred a very long time ago, for the first time in many years. It would be surprising in the extreme if any of the participants in the events likely to be of any relevance to this trial have not had ample opportunity to turn their minds to those events regularly over the last number of years.

8.3 Turning to the question of stress and anxiety it seems to me that no real evidence was presented to suggest a significant level of additional stress and anxiety attributable to delay in criminal prosecution in this case. There was, of course, no significant pre-trial incarceration.

8.4 On the other hand there is a very significant public interest in ensuring that a trial of the serious issues concerning public life which are at the heart of the allegations in this case is conducted on the merits. When taken in conjunction with the fact that the prosecutorial delay in this case is partly explained, although remaining culpable to some extent, it seems to me that the balance of justice clearly favours the trial going ahead.

8.5 It follows that, whether applying the existing jurisprudence noted by the Chief Justice or the possible slight refinement of it tentatively suggested in this judgment, the result is the same. Even on the basis of the existing jurisprudence my view that there was some culpable prosecutorial delay would not alter the result.

9. Conclusion
9.1 For those reasons, I would, although not fully agreeing with the judgment of the Chief Justice, agree with the order which she proposes.

JUDGMENT of Mr. Justice Hardiman delivered the 7th day of June, 2012,
The nature of this appeal and the issues arising on it are so fully set out in the judgment of the Chief Justice that it is unnecessary for me to rehearse them further. But I am unable to agree with the learned Chief Justice on a significant aspect of the case, that related to delay on the part of the prosecution, so that it is appropriate that I should briefly explain the grounds of my dissent. I also wish to comment on certain dicta of the learned Trial judge.

The facts of this case demonstrate beyond doubt that there has been very considerable delay on the part of the prosecution in prosecuting the charges against the applicant. These charges relate to periods as early as May, 1992 (now twenty years ago) and as lately as December, 1997, (now almost fifteen years ago). Delay of this order is, as the learned trial judge found, “clearly inordinate”. But the prosecution claims to be entitled to proceed with the charges notwithstanding this clearly inordinate delay on the ground that the period of time involved, though inordinate, is nevertheless “excusable”.

This case overlaps in certain of its facts the case of DPP v. Liam Cosgrave, in which this Court gave judgment on the 26th day of April, 2012.

As in that case, the underlying prosecution in this case depends on the testimony of a single witness, described by the learned trial judge as “the key witness”, Frank Dunlop. Mr. Dunlop’s background and relevant activities are summarised in my judgment in Cosgrave and it is unnecessary to repeat that material here. Without him, there would be no case at all.

Mr. Dunlop, under some pressure, notoriously and very publicly claimed to the Flood Tribunal as long ago as October, 2000, that he made corrupt payments to councillors, which are the payments in relation to which the appellant here is charged. Notwithstanding that these allegations were made almost twelve years ago, and made in a public forum, the applicant was not charged until October, 2010, a decade later.

The nature of the case against Mr. Kennedy clearly emerges from the affidavit of a Detective Garda Martin Harrington, sworn on behalf of the respondent in these proceedings. At para. 12 he says that the charges against Mr. Kennedy arise “out of the allegation that he corruptly gave sums of money to certain County councillors as an inducement or a reward for voting in favour of motions to rezone certain lands at Carrickmines, Co. Dublin in 1992 and 1997”.

In the following paragraph he says:

“It is alleged that the money was given by James Kennedy to Frank Dunlop who made the corrupt payments to the named councillors as set out in the charge sheets”.

Excusable delay?
As the learned Chief Justice has held, the “key reason why there was such delay was because the D.P.P. had decided not to prosecute the appellant until Frank Dunlop had been himself prosecuted”. This occurred in May, 2009. The direction to charge the appellant was given in June, 2009.

For the reasons set out in my judgment in Cosgrave, I do not consider that it was legally necessary for the Director of Public Prosecutions to wait until after the prosecution of Mr. Dunlop had been concluded before commencing proceedings against the appellant. Equally, for the reasons separately out in that judgment, I do not believe that the alleged necessity to wait until Mr. Dunlop had been tried was the real or actual reason for the D.P.P.’s delay in charging Mr. Cosgrave, or Mr. Kennedy either. On the contrary, I believe, for the reasons set out in my earlier judgment that the decision to defer the bringing of charges until Mr. Dunlop had been charged and convicted was a ploy to gain tactical advantage, and nothing more.
The nature of this tactical decision can be tersely described. The D.P.P. did not wish to present the witness Frank Dunlop as an unconvicted accomplice, because that might tend to undermine his credibility, on which the whole case against Mr. Kennedy depends. But neither was he in a position to proceed to prosecute Mr. Dunlop earlier than 2009, because the State wanted his cooperation in other matters, including other prosecutions. This is why, I believe, a period of ten years elapsed between these allegations first being made in a public forum and charges being brought against the applicant in respect of them.

If this reason, which I believe to be the actual reason for the delay, had been advanced as the factor rendering the admittedly inordinate delay “excusable”, the Court would have had to form a view on that issue. But it was not advanced as the factor rendering the delay excusable but rather a quite different reason was relied on.

It is therefore incumbent on me, consistent with the reasoning of the judgment which I delivered in Cosgrave to find that the “key” reason for delay was not accurately stated and that the reason which was advanced is inadequate to explain or excuse the delay which the learned trial judge rightly found to be “clearly inordinate”.

Second hand evidence.
The affidavit of Detective Garda Harrington, referred to above, did not contain, and could not have contained, first hand evidence of the reason for the delay in prosecuting Mr. Kennedy because the decision that gave rise to that inordinate delay was not taken by Garda Harrington. He can only therefore speak of it at second hand which he does at para. 92 of his affidavit:
“Directions were not received to charge Frank Dunlop until 31st July, 2008. The DPP made it clear to the investigating members that it [sic] would only consider prosecuting James Kennedy and the councillors if Frank Dunlop was convicted of the related charges and then only upon receipt of confirmation that Frank Dunlop would be prepared to give evidence in the criminal court in any prosecution that the DPP might consider bringing against James Kennedy and the councillors. Following the conviction of Frank Dunlop enquiries were carried out by the investigating members with him through his solicitors LK Shields and it was confirmed again that Frank Dunlop was prepared to give evidence in any proceedings arising out of the statements he had made to CAB”.

In my judgment in the Cosgrave case, I have made clear my very strong view of the unfairness that arises out of the decision to put centrally important material before the Court in this second hand fashion. Material put before the Court by way of affidavit can only be challenged or further explored by a cross examination of the deponent. In this case, there is no point in cross examining Mr. Harrington because, while he knows that “directions were not received to charge Frank Dunlop until the 31st July, 2008”, he does not know why that was so or why it did not take place years earlier. Equally, while he may (it is not clear) know of his own knowledge what the DPP said to the investigating members, he does not know the reasons for the attitude allegedly communicated to them.

The interposition of Garda Harrington between the Court and those who actually made the prosecutorial decisions in this case has in my view worked a grave unfairness to the applicant. But it has assisted the prosecution by shielding the real decision makers from scrutiny in cross-examination.

The balance of justice.
In his decision in this matter the learned trial judge,
Hedigan J, whose judgment is also very fully exerted in the judgment of the learned Chief Justice, held that the delay in this case, though “clearly inordinate” is excusable. He went on to say:
“Even if this were not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take place”.

This is apparently because:
“The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The State has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of State officials is an attack on the integrity of the State itself and the whole apparatus of State governance. As such it is a crime of great gravity”.

No-one could doubt that the corruption of County Councillors, if it occurred as alleged, is a grave matter and one requiring to be pursued by all lawful means. The same could be said of any allegation of crime. I do not agree with any suggestion, if one can be found in the passages I have quoted, that because the allegations arise out of a hugely expensive and almost incredibly prolonged Tribunal, there can be a specially lenient attitude towards delay in prosecuting them.

A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such. On the contrary, it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of allowing a non-binding opinion to be expressed on “definite matters of urgent public importance”. See the judgment of this Court in Goodman International v. Hamilton (No. 1) [1992] 2 I.R. 542.

From time to time, certain offences arise which attract a particular opprobrium in the public mind. In our time these offences have included offences of terrorist mass murder, sexual offences against children, and financial offences, especially those involving corruption.

It is, as the learned trial judge said, important that these and other crimes should be pursued by all means within the limits of the law. It is also important to bear in mind that there is a particular risk of miscarriages of justice in precisely those cases where it is very strongly felt that there is a great public interest in the conviction of malefactors.

The mass murder which took place at the hands of those who bombed the city of Birmingham in 1974 was a classic example of an offence where there was “an overwhelming public interest” in convicting those responsible. Unfortunately this entirely natural and legitimate public interest, and an investigation and trial insufficiently constrained by the laws of the time, led to the conviction of six innocent people and their incarceration for more than two decades. This occurred due to an excess of an anger undoubtedly righteous in itself.

Most of the defendants in this case and in the earlier case to which I have referred are elected public officials, or people connected with such officials. It would be very wrong if people in this class were treated with special favouritism by the law. But it would equally be very wrong if they were treated less favourably than another person who could make the same points. If the rights of defendants are more coarsely vindicated because, in a particular case, they belong to a particular class of person or are charged with offences regarded as particularly outrageous, it will not be long before the coarsening of the vindication of the rights of the defendants will affect all citizens. Experience shows that when civil rights are trenched upon in relation to one category of the person, or one category of crime, a similar diminution in the rights of citizens generally tends very soon to follow. Levelling, in such cases, tends to be levelling down rather than levelling up.

This trend is precisely illustrated in delay cases. There was a fairly recent time, characterised in cases like The State (O’Connell) v. Fawsitt and the D.P.P. [1986] 1 I.R. 362 and Joan Fitzpatrick v. District Justice Daniel Shields and the D.P.P. [1989] I.L.R.M. 243 not to mention civil cases such as Ó’Dómhnaill v. Merrick [1984] 1 I.R. 151, when delays of a much shorter order than the delay in question in this case, would have led to the prohibition of a trial. This changed, at first only in the restricted category of cases of alleged child sexual abuse where prosecutions were permitted, ultimately, after astonishingly long periods. I am concerned that this present case illustrates a spreading of this permissive attitude to delay from child sexual abuse cases, which were arguably in a special category, to cases of a quite different sort, such as this. To my mind, a prosecution for a twenty year old offence might be permitted, exceptionally, if the delay were genuinely excusable and the Court was sure that a fair trial could be had. But in the present case, as it appears, I do not consider the delay excusable and do not consider even that the true reason for delay has been accurately stated.

I wish to add that a long delayed trial is gravely unfair to a defendant and carries a greatly enhanced risk of a miscarriage of justice. This is so for the reasons extensively discussed in my judgment in
JO’C v. D.P.P. [2000] 3 I.R. 478. I wish to record my alarm at the tendency, which this case illustrates, to permit a trial of a twenty year old allegation, after prosecutorial delay expressly found to be “inordinate”, and to emphasise my view of the grave risk of miscarriage of justice which this poses. The gravity of that risk will vary with the extent to which the case depends on bare assertion by a prosecution witness.
Conclusion.
I would allow the appeal and grant the appellant the relief sought.

Director of Public Prosecutions v. Special Criminal Court

[1999] 1 IR 63

Carney J.
13th March, 1998

The evidence of Assistant Commissioner, Anthony Hickey given before the Special Criminal Court, evidence accepted by that Court, establishes that An Garda Siochana, as well as having to deal with crime in its traditional forms, now has, in addition, to deal with organised crime. Those engaged in such crime require a wall of silence to surround their activities and believe that its maintenance is necessary for their protection. They have at their disposal the resources, including money and firearms, to maintain this wall of silence and will resort to any necessary means, including murder, in furtherance of this objective.

To deal with crime of this nature it is necessary for An Garda Siochana to collect information, to gather intelligence and to take information in confidence from those willing to provide it. Those prepared to furnish confidential information to the police in relation to organised crime know that they could face a death sentence if this co-operation became known.
Were confidences of this nature to be breached, Assistant Commissioner Hickey has sworn that it would become virtually impossible for An Garda Siochana to investigate serious crime of this sort.
The courts are constantly called upon to resolve conflicting constitutional and legal rights and to establish the hierarchy of conflicting constitutional rights. In this case, there is a potential conflict between the rights of the people of Ireland to have organised crime effectively combated by its police force, the rights of those fulfilling a public duty to furnish information to the police in relation to organised crime to be protected against being murdered and the right of the notice party to have a fair trial.
On the 26th June, 1996, the well known investigative journalist, Veronica Guerin, attended a court case in Naas and thereafter drove her motor car on the Naas dual carriageway in the direction of Dublin. Shortly before 1 p.m. she was stopped at the traffic lights near the Green Isle Hotel. A motorcycle with two passengers on it wearing dark clothing and dark crash helmets drove up beside her car. The prosecution will contend before the Special Criminal Court that Ms. Guerin was murdered by shooting. The details of the killing are not material to this application.
The notice party is currently on trial before the Special Criminal Court for Ms. Guerin’s murder. It is not being alleged that he was present at Ms. Guerin’s murder. He is accused of complicity in a common design to kill her or seriously injure her by assisting in the planning of the murder and in being available at his house to receive the actual killers and to assist in their escape by disposing of the firearm used and of the motorcycle.
The prosecution intend to make their case against the notice party under three broad headings. They claim to have evidence of admissions allegedly made by the notice party. Secondly, they say they will adduce accomplice evidence from a person being maintained within a newly established witness protection programme and thirdly, they say they have telephone records which establish that on the day of the murder, sixteen telephone calls passed between the notice party and the person alleged to have been on the motorcycle and instrumental in the killing.

In the course of the trial, the notice party will enjoy throughout a constitutional presumption of innocence which, in practical terms, will mean that the Special Criminal Court will be required to assess and consider the case and each piece of evidence produced on the basis that the notice party is a totally innocent man. The prosecution, in order to succeed, will have to prove its case and every limb of significance in it to the standard of beyond reasonable doubt. There will be no obligation on the notice party to prove anything, give evidence or call witnesses, although he will, of course, be entitled to do so. He will be entitled to an acquittal as of right if the prosecution does not prove his guilt to the satisfaction of the Special Criminal Court to the high standard indicated.
The prosecution will have to prove its case by the calling of witnesses who will be subject to cross-examination and the production of material documents, which will have to be established as admissible under the rules of evidence. The accomplice evidence will be subject to the rules as to corroboration and the confession evidence will be subject to the safeguards introduced by the Criminal Procedure Act, 1993.
The Special Criminal Court, which is subject to the appellate jurisdiction of the Court of Criminal Appeal, gives written reasons for its verdict, unlike a jury in the ordinary courts which records simply whether its finding is one of “guilty” or “not guilty”. It also gives written reasons for its interlocutory rulings as evidenced by the 14 page ruling at present being considered by me.
The notice party is entitled to be notified of the case against him by service upon him of the Book of Evidence and disclosure of unused relevant material. In the course of the investigation into the murder of Veronica Guerin about 3,500 written statements were taken by An Garda Siochana from approximately 1,350 people. The prosecution contend that the vast majority of these statements have no bearing whatsoever against the notice party or any defence which they perceive might be open to him. With the exception of 40 statements made by 20 individuals, material which does not appear in the Book of Evidence has been made available for inspection by the notice party’s legal advisers.
It is contended by the prosecution that the disclosure of the remaining 40 statements made by 20 individuals would, through their co-operation, become known to ruthless gangs and place their lives in danger or, at least, require that they be placed under witness protection programmes. The notice party, as stated already, enjoys a constitutional presumption of innocence but the prosecution contend that even accepting this to be so, he could be coerced into revealing what was disclosed to him. Counsel for the Director of Public Prosecutions, told the Special Criminal Court that he and his junior counsel, had read and considered each of the said statements with great care and that it was their professional opinion that the information which they contained would provide no assistance to the notice party in making his defence to the charge against him.
Two propositions seem to me to be so obvious and fundamental under our system of constitutional and adversarial justice that I propose to simply state them and move on. They are:-
1. There can be no question of Assistant Commissioner Anthony Hickey or any member of An Garda Siochana deciding that any material might be withheld from disclosure to the court or the defence.
2. There can be no question of counsel or solicitor for the prosecution deciding what material might or might not be of assistance to the defence.
Counsel for the Director of Public Prosecutions submitted to the court of trial that there were three categories of statement for which privilege from disclosure was being claimed. They are:-
(1) Information which is conceded to be relevant to the issues raised in the trial but which is prejudicial to the notice party. Such information was given to and received by the police in confidence and on terms that the informants would not be prepared to give evidence in court for fear of reprisals. The prosecution has made it clear that it will not call this evidence and would abandon this prosecution rather than be forced to disclose it. I pause here to say that it would be the abandonment of the rule of law and of democracy if an accused person could, by the assertion of a right of disclosure, gain immunity against prosecution for serious crime.
(2) The second category of statements relate to the alleged involvement of the notice party and other named persons in major drugs and firearms crimes unrelated to the murder of Veronica Guerin. These statements may be relevant to future trials.
(3) The third category of statements contain background information on the relationship of criminal gangs to each other. They are said to have no bearing on the murder of Veronica Guerin.
Counsel for the notice party sought before the court of trial, disclosure to him and his colleagues of all of the statements but particularly those in category one. As already noted, the prosecution is so protective of these documents that they are prepared to abandon the prosecution rather than disclose them. The Special Criminal Court, in the almost instantaneous time-scale to which it had to operate, considered the authorities to which it was referred and the facts material to the claim of privilege in relation to the 40 statements in issue and came to the following conclusions:-
“1. It accepts the evidence of Assistant Commissioner Hickey that if the statements are furnished to the [notice party,] the informants, their families and associates, might thereby be at risk of serious harm, even death.
2. It also accepts the submission that receipt of information by the police in confidence is an important part of criminal investigation and that such confidentiality should be respected by the court unless there are cogent reasons in the interest of justice for an accused person that it should be waived. The importance of confidentiality is obviously all the greater where there is a perceived risk of grievous harm to the informants and others if such statements or the contents thereof are divulged to an accused person. However, information furnished to the police in confidence is not entitled to privilege merely on that account – see the judgment of the Supreme Court in Skeffington v. Rooney [1997] 1 I.R. 22.
3. There is a clear distinction between statements in the first category and statements in the other categories referred to by counsel for the prosecution. In the former it is conceded that they contain information relevant to the charge of murder made against the [notice party]. For reasons already stated, the court is satisfied that an injustice could possibly be done to the [notice party] if his legal advisers are not allowed to see the documents in question. If the [notice party] is willing to waive his right of personal inspection and of being informed of the contents of such documents, the court will direct production of them to the [notice party’s] solicitor, to be seen only by him and the [notice party’s] counsel, and also on terms that no information contained therein will be divulged by them to any other person. If in the opinion of the [notice party’s] counsel, it transpires that any statement in category I contains information which may be relevant to the [notice party’s] defence and on which counsel requires further instruction from his client, the court will consider a further application relating to the statement in question that its contents, or part thereof, may be divulged to the [notice party] for that purpose. If the [notice party] is unwilling to waive his foregoing rights then, in the interest of protecting the informants and others from the risk of substantial harm, statements in category 1 will not be furnished to the [notice party’s] legal advisers. The court will read them and decide whether they appear to have any relevance to the [notice party’s] defence to the charge of murdering Ms. Guerin or any other matter which might be of assistance to him in this trial.
On careful consideration the court takes the view that there is a crucial distinction between the circumstances of this case and those in Burke v. Central Independent Television plc. [1994] 2 I.R. 61. There is a world of difference between a conflict about the risk of grievous harm to informants whose statements are sought to be protected from disclosure and the right of plaintiffs to their good name and reputation on the one hand and, on the other hand, the risk of grievous harm to informants and others measured against the right of an accused charged with murder to make the best defence available to him. The right of a person accused of crime to a fair trial is fundamental to our law and involves elements of justice which go beyond the requirements of civil litigation. The terms on which the court is authorising production of the documents in category I are based on that distinction. The court has also taken into account that in Burke the Supreme Court, in effect, rendered moot the production of the documents at issue by striking out part of the defendant’s defence and confining it to a plea of justification. The court believes that it is not appropriate to interpret Burke as extending the law into the realm of rights of an accused person in criminal law.
As to the statements in categories II and III; it seems most unlikely that they could have any relevance to the [notice party’s] defence on the charge of murder of Ms. Guerin. In short, it appears that the risk of grievous harm to informants and others in the event of disclosure to the accused of such documents, far outweighs the remote possibility that any information contained therein might be of assistance to him in his defence. These statements have aprima facie right to protection. The court will consider them. Privilege will be affirmed unless the court is satisfied in any particular case that the content of the statement could be of assistance to the accused in his defence.
There is one other matter which may be of relevance to the production of the statements comprised in category I to the solicitor for the [notice party]. The court apprehends that some statements in that category may, in addition, to information regarding the murder charge, also contain other information which,per se, would fall within categories II or III. If that is so, then photocopies of such statements should be furnished to the [notice party’s] solicitor in which the irrelevant information is expunged.
For security reasons, the court also directs that statements to be furnished to the [notice party’s] solicitor shall be examined in this building and shall not leave the precincts of the court. Each evening they should be handed over to the registrar of the court for safe-keeping until the following morning. When all documents have been examined, they should be returned forthwith to the registrar. The members of the court propose to adopt the same security arrangement and they also will not remove the documents from the precincts of the court.
Finally, as to statements in categories II and III; the court appreciates that in reading them they will receive a substantial amount of information which is prejudicial to the accused regarding his alleged participation in criminal activities unrelated to the murder of Ms. Guerin. However, the court is frequently obliged in the course of criminal trials to disregard prejudicial information which transpires to be inadmissible.
The members of the court believe that exposure to such information will not inhibit them in any way from trying this case, and in dealing with all issues which may arise therein, fairly and in accordance with law.”
By order of the Supreme Court dated the 23rd January, 1998, the Director of Public Prosecutions obtained leave to apply to this Court by way of an application for judicial review for (1) an order ofcertiorari quashing the said ruling of the Special Criminal Court, (2) a declaration that the said ruling was wrong in law and (3) a declaration that the Special Criminal Court in its ruling aforesaid acted in excess of its jurisdiction.
Counsel for the Director of Public Prosecutions invites me to deliver in this judgment a wide ranging dissertation on what the law is. This, I decline to do. As this application is a ground-making one it is, in my view, desirable that this judgment be as narrow as it can be to deal with the instant problem.
It is unique in my experience that relief of this nature is being sought during the currency of a trial which remains at hearing. It cannot be emphasised strongly enough that an expedition to the judicial review court is not to be regarded as an option where an adverse ruling is encountered in the course of a criminal trial. I am undertaking this application for judicial review during the currency of the trial because a need has presented itself to urgently balance the hierarchy of constitutional rights including, in particular, the right to life. In the overwhelming majority of cases it would be appropriate that any question of judicial review be left over until after the conclusion of the trial. In the instant case, such an approach would have led the Director of Public Prosecutions to abort the trial and the people of Ireland would have been deprived of their right to have a particularly heinous crime prosecuted to a verdict of either conviction or acquittal. The jurisdiction which I am exercising at present, I find identified in Tormey v. Ireland [1985] I.R. 289. At p. 296, Henchy J. said:-
“The court accepts that Article 34, s. 3, sub-s. 1, read literally and in isolation from the rest of the Constitution, supports the plaintiff’s claim to be entitled to a trial in the High Court. But the Court considers that such an approach would not be a correct mode of interpretation. The ‘full’ original jurisdiction of the High Court, referred to in Article 34, s. 3, sub-s. 1, must be deemed to be full in the sense that all justiciable matters and questions (save those removed by the Constitution itself from the original jurisdiction of the High Court) shall be within the original jurisdiction of the High Court in one form or another. If, in exercise of its powers under Article 34, s. 3, sub-s. 4, Parliament commits certain matters or questions to the jurisdiction of the District Court or of the Circuit Court, the functions of hearing and determining those matters and questions may, expressly or by necessary implication, be given exclusively to those courts. But that does not mean that those matters and questions are put outside the original jurisdiction of the High Court. The inter-relation of Article 34, s. 3, sub-s. 1 and Article 34, s. 3, sub-s. 4 has the effect that, while the District Court or the Circuit Court may be given sole jurisdiction to hear and determine a particular matter or question, the full original jurisdiction of the High Court can be invoked so as to ensure that justice will be done in that matter or question. In this context the original jurisdiction of the High Court is exercisable in one or other of two ways. If there has not been a statutory devolution of jurisdiction on a local and limited basis to a court such as the District Court or the Circuit Court, the High Court will hear and determine the matter or question, without any qualitative or quantitative limitation of jurisdiction. On the other hand, if there has been such a devolution on an exclusive basis, the High Court will not hear and determine the matter or question, but its full jurisdiction is there to be invoked – in proceedings such as habeas corpus, certiorari, prohibition,mandamus, quo warranto,injunction or a declaratory action – so as to ensure that the hearing and determination will be in accordance with law. Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.”
It is accepted by the parties that as regards the applicable law, there is not a great deal of difference between them. Counsel for the notice party accepts that there are circumstances where the identity of an informer is granted protection against disclosure by the common law. He submits that the prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence that goes to either of these two things. This obligation overrides any claim of privilege, public interest or otherwise. Counsel in closing the case for the Director of Public Prosecutions, says that it is accepted by the parties that there is a duty of disclosure that rests on the prosecution; it is accepted by the parties that there is an exception to the duty of disclosure in relation to the identity of informants and persons who may be endangered by disclosure and it is accepted that that exception itself is subject to the innocence-at-stake exemption.
The issue here tends to be more in the area of mechanics than principle. Counsel for the notice party contends that defence counsel must participate directly in the process of determining what would not be disclosed. I have already summarily ruled out the determination being made by the prosecution team or the police. Counsel for the notice party would also contend against the determination being made exclusively by the court on the ground that it is not privy to defence counsel’s instructions and, to put it crudely, would not know what to look for or where the case is going. To the court of trial, counsel for the notice party submitted that a criminal trial is an organic thing which grows and the court of trial would not have the capacity to appreciate that an apparently insignificant piece of material might develop significance as the case went on.
Since Murphy v. Corporation of Dublin [1972] I.R. 215, problems relating to disclosure of documents have been resolved by the documents being examined by the trial judge. In Ambiorix Ltd. v. Minister for the Environment (No. 1) [1992] 1 I.R. 277, the Supreme Court declined to reconsider the principles stated in Murphy v. Corporation of Dublin and said that that decision was based on fundamental constitutional principles which did not apply to decisions made by the courts of other jurisdictions. Finlay, C.J. in Ambiorix restated the Murphy v. Corporation of Dublin principles as follows at p. 283:-
“1. Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers in the courts set up under the Constitution.
2. Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.
3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.
4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the Government.
5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.”
At p. 286, Finlay C.J., as regards the mechanics to be employed, said:-
“In these circumstances, I am satisfied that either by a method of editing the documents which are referred to in this section of Mr. Matthews’ affidavit or by restricting their inspection to lawyers engaged on behalf of the plaintiffs who would give to the Court an undertaking that they would not reveal their contents to their clients, except with special leave of the court, the commercial and financial interests of the parties who made these representations should be protected.
I would hear counsel for the plaintiffs and the defendants further on this particular issue in the hope that a simple formula could be devised between them which would give to the plaintiffs adequate information concerning the material matters contained in this particular collection of documents, and would give to the persons who wrote to the Department adequate protection of their commercial and financial interests.”

These mechanics of course related to the protection of financial and commercial interests which are very different to the interests claiming protection here. They also related to a civil rather than a criminal justiciable controversy.
Director of Consumer Affairs v. Sugar Distributors Ltd. [1991] 1 I.R. 225, concerned an investigation and prosecution into alleged anti-competitive behaviour. Costello J. (as he then was) considered the law of disclosure from both a civil and criminal stand point. At p. 229, he said:-
“When a claim is made, as it has been in this case, that it is not in the public interest that relevant documents in the Director’s possession should not be inspected, the court should examine the documents. If satisfied that they form part of a complaint made to the Director by a member of the public that a breach of the restrictive practices legislation or orders made thereunder has occurred inspection should not be allowed unless the court concludes that the documents might tend to show that the defendant had not committed the wrongful acts alleged against him.
I have followed this course in this case. The disputed documents were all documents forwarded to the Director as part of a complaint made by ASI International Foods Ltd. that breaches of restrictive practices legislation had occurred. They do not tend in any way to show that the defendant was not guilty of the wrongdoing alleged against it. I will therefore not allow their inspection.”
The most analogous case to the present is undoubtedly Burke v. Central Independent Television plc. [1994] 2 I.R. 61. It is not diminished as an authority in coming from the civil side of the court, most of the case law to date has done so.
The defendant objected to producing for inspection documents which could lead to the identification of its sources on the grounds that (a) the life and safety of those sources and others including an undercover police officer would be put at risk if their identities became known, (b) the information contained in the documents had been furnished on the understanding that confidentiality would be maintained and (c) current affairs programmes provided valuable information to the public but could not do so if the safety of contributors was put at risk.
At p. 79, Finlay C.J. said:-
“I would accept the view expressed by Murphy J. on the hearing in the High Court in this case that the particular form of immunity and the reason upon which it is based arising in this case is new to the decisions of the courts in this country and possibly to the courts in other common law countries as well.
I am also satisfied that what is necessarily at issue here is not merely an immunity of documents from discovery by one party to another, but an immunity which must go further than that and which must affect what the court could permit as admissible evidence upon the hearing of an action.
The reason I have reached this conclusion is that it seems to me that if there is a real risk as is asserted by the defendant that the communication of these documents to persons who are members of or associated with the provisional I.R.A. either at first or second hand is likely to lead to danger to the bodily integrity and life of certain citizens who can be identified from them, then that risk exists even to a greater extent were such documents to be produced in evidence at a public trial than it could by any discovery presently being made.
With regard to the two contesting constitutional rights which the Court finds in conflict, on the assumptions which I feel must be made on the hearing of this application, there can be no doubt but that the constitutional right of individual citizens to the protection of their life and of their bodily integrity must of necessity take significant precedence over even so important a right as the right of citizens to the protection and vindication of their good name. That does not mean of course that it excludes or extinguishes in any way consideration for and the importance of the right to a good name.
Upon the hearing in the High Court and again upon the hearing of this appeal in this court, an offer was made on behalf of the plaintiffs that if discovery were to be made of these documents that the lawyers engaged in the case on behalf of the plaintiffs, with their authority, would undertake not to reveal the contents of any document to the plaintiffs unless in pursuance of an application subsequently to be made in respect of a particular document on particular grounds to the court.
It is clear that such a provision has an attractiveness in that it appears to go some distance towards protecting the persons who are said to be at risk with regard to life and health and would go some distance, though possibly not a complete distance, towards assisting to protect the good name of the plaintiffs. I am satisfied, however, it is not a procedure which could or should properly be adopted by the Court.

If these documents are not only to be protected from communication to the plaintiffs in the interests of a possible risk to citizens from that communication, but also from admission in evidence in a public court, the following situation would arise. Lawyers acting on behalf of the plaintiffs would have access to a number of documents some of which might well be significant and weighty tools to be used in cross examination of witnesses adduced on behalf of the defendant and be unable to use such documents or to explain their failure to their own client to use them. This would constitute an unprecedented and wholly undesirable breach in the duty which counsel would owe to their client and in the proper trust which should exist between a client and his/her lawyers. I therefore am satisfied that this compromise arrangement must be rejected.”
A similar view was taken in the Court of Appeal, Criminal Division of England and Wales. In R. v. Davis [1993] 1 W.L.R. 613, Taylor L.C.J. said at p. 616:-
“Before us, Mr. Mansfield submitted first that, where the court has to consider disclosure, it cannot be right to require counsel for the defence to give an undertaking not to reveal what passes in court to his instructing solicitors and client. Nor should he, as happened here, voluntarily absent himself. We agree. It would wholly undermine counsel’s relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client. There would also be practical difficulties, as Mr. Bevan pointed out. Counsel might have different views as to whether they would give such an undertaking; there might be a change of counsel and therefore a change of view; where several defendants were concerned their counsel might differ about giving undertakings. Accordingly, whatever happens in court with defending counsel present would, in our view, have to be disclosable to his clients.”
I have come to the view that the Special Criminal Court exceeded its jurisdiction in fundamentally altering the established relationship between defence lawyers and their client. It does not seem to be any answer that the notice party has consented to his legal team having sight of the statements on the terms that they are not disclosed to him without leave of the court. His present legal team could be discharged at any time and it does not seem to me that there would be a trial in accordance with constitutional justice if any subsequent legal representatives did not enjoy the full lawyer-client relationship with their client but were under an obligation to keep secrets from him.

I accordingly, quash by order of certiorari the ruling of the Special Criminal Court dated the 21st January, 1998.
The Special Criminal Court will examine the 40 statements concerned and determine whether any of them might help the defence case, help to disparage the prosecution case or give a lead to other evidence. On the basis of this examination, the Special Criminal Court will determine which, if any, of the 40 statements concerned should be disclosed to the defence.
The members of the Special Criminal Court are all experienced in the criminal law, both as judges and practitioners. They have heard from counsel for the prosecution an opening speech in relation to the facts of the case. I am satisfied that they will be able to identify whether any of the statements concerned would help the defence case, would help to disparage the prosecution case or give the defence a lead. I am satisfied that counsel for the notice party’s residual misgivings of possible prejudice from the court not being privy to his client’s instructions are at the minimal theoretical level of prejudice. This being so, they must yield to the risk to life as deposed to by Assistant Commissioner Hickey.
In conducting its examination of the sensitive material, the Special Criminal Court will be exposed to material prejudicial to the notice party. I accept their assurance quoted earlier in this judgment to the effect that they will nevertheless be able to deal with the case fairly and in accordance with law. It is the function of every professional judge to adjudicate on the admissibility of evidence prejudicial to an accused person and to exclude it from his mind if it is not admissible according to the rules of evidence. I would not see it as necessary for another chamber of the court to deal with the matter.
It follows from the view I have just expressed that I do not consider it necessary that the case should be dealt with by the ordinary courts. Even were I to consider that course desirable I am not aware of any mechanism to bring the case back to the ordinary courts from the Special Criminal Court.
The order of this Court will be to:-
(1) quash by certiorari the said ruling of the Special Criminal Court dated the 21st January, 1998 and
(2) dismiss the application brought by the notice party.

By notice of appeal dated the 1st April, 1998, the notice party appealed to the Supreme Court.

Hamilton C.J.
20th July, 1998

I have read the judgment about to be delivered by O’Flaherty J. and I agree with it.

O’Flaherty J.
The notice party was charged at the Special Criminal Court on the 18th October, 1996, with the murder of Veronica Guerin on the 26th June, 1996. Veronica Guerin was shot dead while she was driving her motor car on the Naas Road, Dublin. Two people on a motor bike drew up along side her car and a firearm was discharged by one of them. It is the prosecution’s case that while the notice party was not at the scene of the crime, he was complicit in the plot to murder Veronica Guerin and, for example, had arranged that the killers could come back to his house so that the disposal of the motor bike would be effected. The prosecution say that the notice party’s complicity is further demonstrated because there was an exchange of sixteen telephone conversations by mobile phone on the day of the killing between the notice party and others with whom it is said, he acted in concert in relation to the murder. The prosecution propose to call one Charles Bowden who, they say, will implicate the notice party in the plot and the prosecution also say that they will rely on admissions made by the notice party.
Course of proceedings at the Special Criminal Court
The Director of Public Prosecutions certified under s. 47 of the Offences Against the State Act, 1939, that the ordinary courts were, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the notice party. Therefore, the notice party was brought before the Special Criminal Court and duly charged. On the 24th April, 1997, he was served with a book of evidence in accordance with Rules of the Special Court and in line with s. 6(1) of the Criminal Procedure Act, 1967. Counsel for the notice party said it was a rather short book of evidence.
On the 22nd July, 1997, the notice party’s trial was set for the 13th January, 1998.
On the 19th December, 1997, the last day of the Michaelmas term, the prosecution served a substantial volume of additional evidence upon the notice party. Further additional evidence was served throughout the first week of January, 1998.
On the 12th January, 1998, an adjournment of one week of the trial was granted by the Special Criminal Court to allow the defence to consider these additional materials. At this stage, too, it was clear that while the prosecution disclosed the existence of 40 statements (made by 20 people), it was claiming privilege in respect of them on the basis that this was information that had been given by informants in regard to some, at least, on the basis that they would be treated in confidence and that they would not be required to give evidence. Further, it was, and is the State’s case that there is a definite risk to life and property for some of the informants if their identity is disclosed.
The defence requested disclosure of these documents. Initially, the members of the Special Criminal Court (Barr J. presiding) proposed that a separate division of the Court might examine the documents. However, on the 15th January, 1998, the Court ruled that this was not a practical proposition.
Assistant Commissioner Hickey’s evidence
On the 15th January, 1998, Assistant Commissioner Anthony Hickey, gave evidence of the danger posed for potential witnesses. He asserted that there were people interested in this case who had the resources and access to firearms and so forth, and that they would resort to virtually anything, including murder, to maintain a “wall of silence” which they believed was necessary to protect themselves and their criminal activities.
Aside from the danger to witnesses, the Assistant Commissioner said that if the confidence of the informants were to be breached it would make it virtually impossible for the gardaí to investigate serious crime.
Three categories of statement
Counsel for the prosecution, at the invitation of the Special Criminal Court, gave an outline of the prosecution case to the Court. He also informed the Court that there were three categories of statement for which privilege was claimed. The first category contains information which it is conceded is relevant to the issues raised in the trial but which is prejudicial to the accused, i.e. it does not help the notice party’s defence nor does it help to demolish the prosecution case in any way. The second category of statement relates to information about the alleged involvement of the notice party, and other named persons, in criminal activity; notably, major drug and firearm crimes unrelated to the murder of Veronica Guerin. The third category of statement contains background information which, it is said, is even further removed from the murder of Veronica Guerin and which can have no possible bearing on such murder.
Counsel for the notice party submitted to the Special Criminal Court – a submission that was repeated before us – that with particular regard to the first category, which the prosecution concedes contains documents that are relevant to the charge of murder against his client, he and his colleagues cannot form any view as to the relevance or otherwise of the information therein contained without seeing the statements and ascertaining the identities of the informants. Counsel also submits that a particular statement, though containing information which, on its face, is prejudicial to the notice party, might, in the light of facts known to the notice party and his advisors, but unknown to the prosecution, cast a different light on the information and on the informant which could be helpful to the notice party’s defence.
Ruling of the Special Criminal Court
The Special Criminal Court, on the 21st January, 1998, concluded as follows:-
“1. It accepts the evidence of Assistant Commissioner Hickey that if the statements are furnished to the [notice party], the informants, their families and associates, might thereby be at risk of serious harm, even death.
2. It also accepts the submission that receipt of information by the police in confidence is an important part of criminal investigation and that such confidentiality should be respected by the court unless there are cogent reasons in the interest of justice for an accused person that it should be waived. The importance of confidentiality is obviously all the greater where there is a perceived risk of grievous harm to the informants and others if such statements or the contents thereof are divulged to an accused person. However, information furnished to the police in confidence is not entitled to privilege merely on that account, – see the judgment of the Supreme Court in Skeffington v. Rooney [1997] 1 I.R. 22.
3. There is a clear distinction between statements in the first category and statements in the other categories referred to by counsel for the prosecution. In the former it is conceded that they contain information relevant to the charge of murder made against the [notice party]. For reasons already stated, the court is satisfied that an injustice could possibly be done to the [notice party] if his legal advisers are not allowed to see the documents in question. If the [notice party] is willing to waive his right of personal inspection and of being informed of the contents of such documents, the court will direct production of them to the [notice party’s] solicitor to be seen only by him and the [notice party’s] counsel and also on terms that no information contained therein will be divulged by them to any other person. If in the opinion of the [notice party’s] counsel it transpires that any statement in category 1. contains information which may be relevant to the [notice party’s] defence and on which counsel requires further instruction from his client, the court will consider a further application relating to the statement in question that its contents, or part thereof, may be divulged to the [notice party] for that purpose. If the [notice party] is unwilling to waive his foregoing rights then, in the interest of protecting the informants and others from the risk of substantial harm, statements in category 1 will not be furnished to the [notice party’s] legal advisors. The Court will read them and decide whether they appear to have any relevance to the [notice party’s] defence to the charge of murdering Ms. Guerin or any other matter which might be of assistance to him in his trial.”
Judicial Review of Special Criminal Court’s decision
On the 23rd January, 1998, this Court, on appeal from Kinlen J., granted leave to issue judicial review proceedings to quash the order of the Special Criminal Court.
Judgment of Carney J.
The matter came on for hearing before Carney J. who delivered his judgment quashing the ruling of the Special Criminal Court on the 13th March, 1998. After a very careful and comprehensive review of the authorities he concluded at p. 75:-
“I have come to the view that the Special Criminal Court exceeded its jurisdiction in fundamentally altering the established relationship between defence lawyers and their client. It does not seem to be any answer that the notice party has consented to his legal team having sight of the statements on the terms that they are not disclosed to him without leave of the court. His present legal team could be discharged at any time and it does not seem to me that there would be a trial in accordance with constitutional justice if any subsequent legal representatives did not enjoy the full lawyer-client relationship with their client but were under an obligation to keep secrets from him.
I accordingly, quash by order of certiorari the ruling of the Special Criminal Court dated the 21st January, 1998.
The Special Criminal Court will examine the 40 statements concerned and determine whether any of them might help the defence case, help to disparage the prosecution case or give a lead to other evidence. On the basis of this examination, the Special Criminal Court will determine which, if any, of the 40 statements concerned should be disclosed to the defence.
The members of the Special Criminal Court are all experienced in the criminal law both as judges and practitioners. They have heard from counsel for the prosecution an opening speech in relation to the facts of the case. I am satisfied that they will be able to identify whether any of the statements concerned would help the defence case, would help to disparage the prosecution case or give the defence a lead. I am satisfied that the notice party’s counsel’s residual misgivings of possible prejudice from the court not being privy to his client’s instructions are at the minimal theoretical level of prejudice.
This being so, they must yield to the risk to life as deposed to by Assistant Commissioner Hickey.
In conducting its examination of the sensitive material, the Special Criminal Court will be exposed to material prejudicial to the notice party. I accept their assurance quoted earlier in this judgment to the effect that they will nevertheless be able to deal with the case fairly and in accordance with law. It is the function of every professional judge to adjudicate on the admissibility of evidence prejudicial to an accused person and to exclude it from his mind if it is not admissible according to the rules of evidence. I would not see it as necessary for another chamber of the court to deal with the matter.”
It should be said that separate judicial review proceedings had been brought on behalf of the notice party, contending that the case should not be dealt with by the Special Criminal Court at all but should revert, in some manner, to the Central Criminal Court.
Carney J. ruled in regard to this:-
“It follows from the view I have just expressed that I do not consider it necessary that the case should be dealt with by the ordinary courts. Even were I to consider that course desirable I am not aware of any mechanism to bring the case back to the ordinary courts from the Special Criminal Court.”
Appeal
The notice party appeals to this Court seeking a reversal of the order of the High Court and, in effect, a restoration of the regime proposed by the Special Criminal Court. He also holds to his contention that the case should not be heard in the Special Criminal Court but in the ordinary courts.
Extent that disclosure required
It is agreed on all sides that where the prosecution has a statement of a person who may be in a position to give material evidence, whom they do not want to call as a witness, they are under a duty to make that person available as a witness for the defence and, in general, to make available any statements that he may have given. We understand that that is in fact the practice that has been in operation by the office of the Director of Public Prosecutions for a very long time, see The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517 at p. 539. Of course, the prosecution has no obligation to disclose material that is clearly irrelevant, although in this case, perhaps out of an abundance of caution, the prosecution seems to have made available all the material that it held: over 3,000 statements (with the exception of the instant 40 statements in respect of which privilege is claimed); many of which must be of no relevance to this case.
Informer privilege
In A.G. v. Briant (1846) 15 M. and W. 169 at p. 185, Pollock C.B. said:-
“. . . the rule clearly established and acted on is this, that, in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for fifty years, and although it may seem hard in a particular case, private mischief must give way to public convenience and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer . . .”
Withholding information based on informer privilege is subject to what is known as the “innocence at stake” exception. Esher M.R. described this exception in Marks v. Beyfus (1890) 25 Q.B.D. 494 at p. 498 as follows:-
“. . . if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.”
And see Director of Consumer Affairs v. Sugar Distributors [1991] 1I.R.225 (Costello J.); The People (Director of Public Prosecutions) v. Reddan [1995] 3 I.R. 560 and Skeffington v. Rooney [1997] 1 I.R. 22. In Burke v. Central Independent Television plc. [1994] 2 I.R. 61, this Court held, in addition, that there should be a principle of immunity against disclosure where disclosure is likely to lead to death or injury to persons.
Notice party’s contention
It is submitted on behalf of the notice party that in the particular circumstances of this case it is both impracticable and unrealistic to expect the trial court to carry the burden of ruling on disclosure where it cannot be privy to instructions from the notice party to his representatives, or to the fruits of the investigations carried out by the defence, or to circumstances where it has no knowledge of the vast bulk of the other unused material. It is submitted by the notice party that in this case the court is entitled to seek the limited assistance of the legal representatives of the notice party in accordance with its inherent jurisdiction: which is to take such measures as might, in any particular case, be deemed necessary to ensure that fair procedures are maintained and to give effect to the respective rights of the parties.
Counsel were not able to point to the jurisprudence of any jurisdiction where this solution has prevailed but we were urged to expand the rights of the defence to this extent so as to ensure that there would be a trial in due course of law and thus compliance with Article 38.1 of the Constitution.
The State’s response
The State’s response to the notice party’s contention is to say that if we were to expand the law to that extent, we would destroy informer privilege. Further, they ask how can there be a distinction between an accused, who is represented by lawyers, and one who elects to conduct his own defence? Or if, in the course of this trial, the notice party elected to dispense with his legal representatives, is he to be shut out from seeing the same documents that they saw? Undoubtedly, there is force and substance in these points and I, for my part, accept them.
There is a further point. It is important to emphasise that what is in debate is not only the State’s privilege, but also the protection of rights to which the informer may be entitledviz. confidentiality as well as protection of life and limb. While it is clear to the court, and to everyone who took part in the debate here, that the trustworthiness of counsel and solicitors is beyond question in this jurisdiction – is this something that would necessarily be clear to an informant? Would not a lay person immediately identify the interest of the legal adviser with the client? I think that in most cases this would be the likely reaction of the informant.
On the civil side, the court has rejected what is proposed on behalf of the notice party as a solution. In Burke v. Central Independent Television plc. [1994] 2 I.R. 61 at pp. 79 and 80 (the relevant point at issue as far as the purposes of the instant case are concerned was the danger to life and limb posed for certain informants in relation to the making of a television documentary), Finlay C.J. said:-
“Upon the hearing in the High Court and again upon the hearing of this appeal in this Court, an offer was made on behalf of the plaintiffs that if discovery were to be made of these documents that the lawyers engaged in the case on behalf of the plaintiffs, with their authority, would undertake not to reveal the contents of any document to the plaintiffs unless in pursuance of an application subsequently to be made in respect of a particular document on particular grounds to the court.
It is clear that such a provision has an attractiveness in that it appears to go some distance towards protecting the persons who are said to be at risk with regard to life and health and would go some distance, though possibly not a complete distance, towards assisting to protect the good name of the plaintiffs.
I am satisfied, however, it is not a procedure which could or should properly be adopted by the Court.
If these documents are not only to be protected from communications to the plaintiffs in the interests of a possible risk to citizens from that communication, but also from admission in evidence in a public court, the following situation would arise. Lawyers acting on behalf of the plaintiffs would have access to a number of documents some of which might well be significant and weighty tools to be used in cross examination of witnesses adduced on behalf of the defendant and be unable to use such documents or to explain their failure to their own client to use them. This would constitute an unprecedented and wholly undesirable breach in duty which counsel would owe to their client and in the proper trust which should exist between a client and his/her lawyers. I therefore am satisfied that this compromise arrangement must be rejected.”
In R. v. Davis [1993] 1 W.L.R. 613, the Court of Appeal (Criminal Division), in England, reached a similar conclusion. The court stated at p.616:-
“It would wholly undermine counsel’s relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client. There would also be practical difficulties Counsel might have different views as to whether they would give such an undertaking; there might be a change of counsel and therefore a change of view; where several defendants were concerned their counsel might differ about giving undertakings.”
It is true that in Ambiorix Ltd. v. Minister for the Environment (No.1) [1992] 1 I.R. 277, the solution that only lawyers should examine the relevant documents was presented to the court and accepted. However, Ambiorix was a very special case. The essential thrust of what the case on discovery was about was that the State sought to persuade the court to resile from its decision in Murphy v. Corporation of Dublin [1972] I.R.215, in the matter of executive privilege. This the court declined to do. The documents in question would have embodied representations by third parties to particular government departments seeking to have their properties included in designated areas under the Urban Renewal Act, 1986. What the plaintiffs hoped to establish was that in the course of those representations matters might have been taken into consideration that should not have been taken into consideration in deciding which properties should be included in designated areas. However, it was accepted on all sides that submissions made to government departments would contain many details, financial and otherwise, which would be of no possible relevance to this point of the case.
The solution that presented itself, which was agreed to by all parties, as appears from the judgment of Finlay C.J. and the order subsequently drawn up, was to allow the lawyers only to see the documents. Finlay C.J. said at p. 286:-
“As a matter of general principle, of course, a party obtaining the production of documents by discovery in an action is prohibited by law from making any use of any description of such documents or the information contained in them otherwise than for the purpose of the action. To go outside that prohibition is to commit contempt of court.
Furthermore, the Court has an inherent jurisdiction, I am satisfied, to take such steps as are necessary to regulate the production of documents so as to prohibit any infringement of this restriction.
In these circumstances, I am satisfied that either by a method of editing the documents which are referred to in this section of Mr. Matthews’ affidavit or by restricting their inspection to lawyers engaged on behalf of the plaintiffs who would give to the Court an undertaking that they would not reveal their contents to their clients, except with special leave of the court, the commercial and financial interests of the parties who made these representations should be protected.
I would hear counsel for the plaintiffs and the defendants further on this particular issue in the hope that a simple formula could be devised between them which would give to the plaintiffs adequate information concerning the material matters contained in this particular collection of documents, and would give to the persons who wrote to
the Department adequate protection of their commercial and financial interests.”
The order drawn up concluded:-
“It is ordered and adjudged that the said appeal be dismissed and on hearing said respective counsel in regard thereto it is ordered that the said orders of the High Court be varied to provide in the case of documents which constituted representations made to Government Departments by third parties seeking to have their properties included within the designated areas that in lieu of allowing inspection by and giving copies of such documents to the plaintiffs the same be inspected by the legal representatives of the plaintiffs herein the said legal representatives undertaking not to disclose the contents thereof to the plaintiffs without the express leave of the High Court and that as so varied the said orders do stand affirmed.”
Solution to the immediate problem before the Court
It will be clear that there are two conflicting interests involved here. I hold that the informer’s privilege is of ancient origin and that it is essential for the prevention and detection of crime and, therefore, the preservation of law and order that that privilege should remain intact; subject only to the “innocence at stake” exception.
Counsel for the prosecution have a critical role in this regard. Their task is to present the evidence to the court – having disclosed any possible source of evidence that may help the defence. Their task is not just to secure a conviction: rather they must always be ministers of justice. Carney J. may have gone further than he intended when he said:-
“There can be no question of counsel or solicitor for the prosecution deciding what material might or might not be of assistance to the defence.”
This is because counsel for the prosecution must have a role in disclosing all relevant material to the defence but counsel must also be in a position to take a stance on the matter of informer privilege which, in turn, is subject to the “innocence at stake” exception. It is the position, to adopt McLachlin J.’s phrase, speaking for the Supreme Court of Canada in R. v. Leipert [1997] 2 L.R.C. 260 at p. 270, that “the right to disclosure is not to trump privilege”. They must both be accommodated and prosecution counsel has a key role in this concord. However, when it comes to a stage where there is any doubt on the matter, it will be essential to get the ruling of the trial judge. Sometimes the matter will be straightforward.
No doubt, judges allow claims of privilege in routine cases day in and day out without ever examining any documents. Other cases – this may be one – will be more complicated and then the judge or judges (as in the case of the Special Criminal Court) will examine the documents. However, I do not think trial judges should feel that they have any obligation to look at documents in every case. That is why prosecuting counsel’s role is so critical. While the prosecution cannot appear to be a judge in its own cause, it is common case that the role of counsel for the prosecution is very different to the role of counsel for the defence. The role of counsel for the defence is always to put the prosecution to the proof of its case and seek by every fair and just means for the acquittal of their client. By contrast, counsel for the prosecution has an overall responsibility to assist in ensuring a fair and just trial.
For the reasons already given, the possibility that the lawyers for the notice party might see the documents is not a feasible compromise solution. The solution proposed by Carney J. is, therefore, the correct one. Ever since the decision in Murphy v. Corporation of Dublin [1972] I.R. 215, this solution has worked well on the civil side.
I would, however, vary Carney J.’s judgment to this extent. I would remove any direction to the Special Criminal Court as to whether the members of the court should examine some or all of the documents in debate. I would repose to the court’s full discretion how the trial is conducted and, in particular, to decide this matter. The judges may ask anew whether there is any point at all in looking at the documents in the second and third category. But I reiterate that the decision is for the members of the Special Criminal Court. It needs to be emphasised, however, that the duty that will devolve on the members of the court will be a continuing one as the trial develops and evolves. The members of the court will be astute, no doubt, to monitor the situation throughout.
Should there have been Judicial Review?
Counsel for the notice party submitted that judicial review did not lie in this case. The notice party had been arraigned and it was submitted that the trial had started and reliance was placed on thedictum of Ó Dálaigh C.J. in The People (Attorney General) v. McGlynn [1967] I.R. 232 at p. 239:-
“The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a
jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practicable, be followed in respect of all criminal trials subject to the jurisdiction of courts to grant cases stated on occasion.
However, the situation that prevailed here is that while counsel for the prosecution had been invited by the court to “open” the case, this was purely for the purpose of giving the members of the court an idea of what the case was about. Essentially, the ruling that was sought and given was by way of preliminary ruling before the trial was embarked upon.
I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency) but, in the exceptional circumstances of this case, and having regard to the importance that there should be a definitive ruling on this matter of informer privilege, it was right that Carney J. should have entertained the application at first instance and for us to hear it on appeal.
Notice Party’s application for Judicial Review
As related earlier, it was sought on behalf of the notice party to prohibit the proceedings in the Special Criminal Court so that, in some manner, the case could go to the Central Criminal Court. However, as already stated, there is in place a certificate of the Director of Public Prosecutions certifying that the ordinary courts are inadequate to secure the effective administration of justice and that it is necessary that this case should be tried before the Special Criminal Court. The efficacy and validity of that certificate has not been successfully challenged (see Ward v. Ireland (Unreported, Supreme Court, 18th December, 1997) and, therefore, it must prevail: Kavanagh v. The Government of Ireland [1996] 1 I.R. 321 and cases cited therein. Therefore, the case should remain in the Special Criminal Court.
Conclusion
The appeal should be dismissed, the order of the High Court affirmed with the modification in the judgment of Carney J. that I have suggested.

Barrington J.
I agree with the judgment of O’Flaherty J.

Keane J.
I also agree.

Lynch J.
I also agree.