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 gardaà 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.
Power City Ltd. v. Monahan
, High Court, October 14, 1996
Judgment of Mr. Justice Kinlen delivered the 14th day of October 1996
by Mr. Justice Budd.
1. I deliver this judgment on the authority of Mr. Justice Kinlen and of the President of the High Court.
2. By motion paper dated the 4th October, 1995 the Solicitor for the Plaintiff applied to the Court on the 6th November, 1995 for an Order challenging the second and third-named Defendants’ privilege in relation to numbers 5(6), 59, 65, 81, 87, 88, 95 and 100. This application was based on a grounding affidavit of Dermot McKenna sworn the
29th September, 1995. The General Manager of the third-named Defendant in the Republic of Ireland, namely, Robert Talbot, swore an answering affidavit dated the 3rd November, 1995. He had earlier sworn an affidavit of discovery dated the 26th January, 1994 and there is an addendum made to that affidavit of discovery which purports to deal precisely with the documents on the grounds of privilege. He states that the grounds on which privilege is claimed are:-
3. CLASS A Communications of a confidential nature arising between the second and third-named Defendants, their insurers and their legal advisers for the purpose of obtaining and/or giving legal advice.
4. CLASS B Communications between the second and third-named Defendants, their insurers and their legal advisers for the purpose or primary purpose of preparing the second and third-named Defendants’ case in these proceedings.
5. CLASS C Communications by the second and third-named Defendants and/or its insurers and/or its legal advisers with third parties for the purpose or primary purpose of preparing the second and third-named Defendants’ case in these proceedings.
6. CLASS D Internal communications, memoranda, letters, papers, writings, documents, accounts, working papers or drafts of the same of the second and third-named Defendants or of their insurers or their legal advisers which came into existence for the purpose or primary purpose of preparing the second and third-named Defendants’ case in these proceedings.
7. CLASS E Without prejudice communications in these proceedings.
8. From the pleadings it is clear that the Plaintiff’s claim arises out of the alleged theft of a consignment of Hi-Fi equipment while in the course of transport and delivery from the United Kingdom to the Plaintiff in Ireland. It is alleged that the theft occurred whilst the consignment was in the custody of the second or third-named Defendants. Mr. Talbot avers that the second and third-named Defendants were notified on the 6th October, 1992 by Techno Marine Limited, acting on behalf of the Plaintiff, that the Plaintiff was holding the second and third-named Defendants fully liable for all losses in connection with the theft. Thereafter, the second and third-named Defendants were, he avers, of the firm belief that litigation would be instituted against them arising out of the theft. He says that all the documents for which privilege is claimed came into existence after the 6th October, 1992. The documents are listed in the affidavit as follows:-
“Documents No. 6
This is a letter dated the 6th May, 1993 from Clyde & Company, Solicitors of London (who are the English Solicitors acting on behalf of the second and third-named Defendants) to Messrs. Whitney, Moore and Keller, the Irish Solicitors acting on behalf of the second and third-named Defendants in these proceedings. As explained in the addendum to the affidavit of discovery, it is a communication for the purposes of preparing the second and third-named Defendants’ defence of these proceedings.
Document No. 59
This is a copy of a letter written by Messrs. Whitney, Moore and Keller to the Superintendent of Store Street Garda Station and is dated the 7th March, 1994 and was written with a view to obtaining information and evidence to assist the Defendants in the defence of these proceedings.
Document No. 65
This is the Superintendent’s response dated the 12th April, 1994 to the said letter of Messrs. Whitney, Moore and Keller referred to as Document No. 59.
Document No. 81
This is an undated manuscript note of a telephone conversation with Store Street Garda Station. It relates to a conversation which took place after the 6th October, 1992 and again was an undertaking for the purpose of gathering information which was used to assist the second and third-named Defendants in the defence of this claim.
Document No. 87
These are notes prepared by me, this deponent, (Robert Talbot) of a conversation which I had with a third party for the purpose of gathering information communicated to our legal advisers for the purpose of the defence of this claim.
Document No. 88
This is a facsimile message from me, this deponent, to Clark Woodward Hungate with enclosures dated the 19th October, 1992 notifying the claim to the second and third-named Defendants’ insurers in the knowledge that a claim was to be made against the second and third-named Defendants arising out of the theft. The said communication was made with a view to insurers dealing with any response to be made to the letters from claimants arising out of theft of the consignment of goods in issue. The communication was made in circumstances where litigation was clearly contemplated and the manner in which the claim giving rise to litigation was to be dealt with was in issue.
Document No. 95
This is a bundle of undated manuscript notes, memoranda and attendances. These notes were taken on behalf of the second and third-named Defendants following the alleged theft for the purpose of gathering information used to assist in the defence of the claim.
Document No. 100
This is a report prepared by International Investigations Ireland. The said report was prepared in contemplation of a claim being made against the second and third-named Defendants providing information used in the defence of that claim”.
9. The motion paper is mistaken in talking about document number 6. It is clearly privileged. It should read document no. 56 which is described as “manuscript note headed ‘goods recovered’ dated and unsigned”. The error in the motion paper was noted at an early stage and John K. Lynch, Solicitor in the firm of Whitney, Moore and Keller has sworn an affidavit dated the 1st July, 1996 in which he avers that Document No. 56 was prepared by him in about February, 1994 in his capacity as Solicitor acting for the second and third-named Defendants in the defence of the proceedings. It was an internal memo prepared by him for the primary purpose of preparing a defence on behalf of his firm’s clients. The matter came before this Court on the 3rd July, 1996.
10. It was very fully and ably argued by Counsel on both sides. The Court was referred firstly to a note in the Irish Law Times and Solicitors Journal, Volume 83 (1949) at p.103. This is not a law report. It is not regarded as having been cited, merely as being adopted as part of the arguments. On that basis it is received de bene esse. The relevant portion of the note reads as follows:-
“Giving reserved judgment in the High Court, Dublin on a Motion for discovery of documents, Mr. Justice Dixon held that a notice of accident form sent by an insured person to an insurance company is not a privileged document and should be made available to a plaintiff in an intended accident……………………Mr. Justice Dixon also directed that correspondence between the Governor (of the Hospital) and The Royal Exchange Insurance to the Company up to the date when the insurers had communicated their decision as to their liability or otherwise should be discovered by the plaintiffs”.
11. The Court also considered Silver Hill Duckling Limited, Roland Stuart Steele and Elizabeth Patricia Steele, Plaintiffs -v- The Minister for Agriculture, Ireland and the Attorney General (1987) IR p.289 and Tromso Sparebank -v- James Francis Beirne, Thomas A. Forde, Joseph Grimson, Northern Bank Limited, Northern Bank (Ireland) Limited and (by Order of the Court) Midland Bank PLC (No. 2) 1989 IRLM p.257. The Court also had regard to Buttes Gas and Oil Company -v- Hammer (No.3) 1981 QB 223. The views of Master of the Rolls, Lord Denning were adopted by Costello J. (as he then was) [despite the decision of the R. – v – The Board of Inland Revenue Sp Goldberg 1988 3WLR 522 which expressly disapproved of the comments of the Master of the Rolls].
12. In the Tromso Sparebank case Costello J. says at the bottom of page 261:-
“The conclusion I have come to is this: I see no reason why legal professional privilege should apply to the copy documents with which this case is concerned. Legal professional privilege primarily exists so that a litigant can have recourse to his legal advisers in circumstances which enable him to have complete confidence that the communications made to him and from him will be kept secret. It is well established that this privilege extends to documents which came into existence after litigation is commenced either for the purpose of obtaining or giving legal advice: (see Anderson -v- Bank of British Colombia 1876 2 Ch. D644 at p.649). But I cannot see that the protection of the interests of a litigant requires the privilege to be extended to copies of documents which came into existence prior to the contemplation of litigation, documents which are themselves not privileged and which the other side would probably inspect as a result of third party discovery order and which they could get produced at the trial pursuant to a subpoena duces tecum. The Rules of Court are designed to further the rules of justice and they should be construed by the Court so that they assist in the achievement of this end. If inspection of documents does conceivably injure the interests of one party and may well assist the other to ascertain the true facts of the case prior to trial, I do not think that the Court should put a gloss on the rules which would prevent this result”.
In the Silver Hill Duckling Limited -v- Minister for Agriculture case, O’Hanlon J. was considering the privilege which is commonly referred to as legal professional privilege also on the ground that it would be contrary to the public interest to disclose the documents in respect of which privilege is claimed.. He says:-
“Dealing first with the claim to a legal professional privilege, I am satisfied that a sustainable claim under this heading may be made in respect of a wider category of documents than the conventional communications passing between a client and his legal adviser in contemplation of litigation.
The legal principles applicable to such claim of privilege have been discussed at some length. In fairly recent times in two leading cases in the House of Lords:- Alfred Crompton Amusement Machines Limited -v- Customs and Excise Commissioners (No.2) 1974 AC405 and Waugh -v- British Railways Board 1980 AC 521. The claim of privilege based on public interest was considered by the Supreme Court in Murphy -v- The Minister for Local Government (1975) IR 300. It was also considered by the House of the Lords in Cromptons case.”
13. In this case the Court is only concerned with the first of the two grounds mentioned by O’Hanlon J. This Court respectfully agrees that “legal professional privilege may be claimed in respect of a wider category of documents and the conventional communications passing between a client and his legal adviser in contemplation of litigation”. The learned Judge adopts (with slight modifications) the passage from the Judgment of Lord Denning MR in the Court of Appeals decision in Alfred Crompton Amusement Machines Limited -v- Customs and Excise Commissioners (No.2) 1972 2QB 102 at p.131:-
“On inspecting these documents in 2(b)(ii) it appears that they are all internal memoranda within the Department itself made in the course of their investigations. There are instructions issued by Senior Officers to the staff about the methods to be employed. There are many schedules prepared by the staff showing the prices charged for machines. There are many minutes of meetings which were held by the staff of the Commissioners with the staff of the company or its accountants and solicitors. There are memoranda containing comments on the attitude and conduct of the company and its advisers.
The primary purpose of these investigations was, no doubt, to see if the company’s claim for deductions was justified or not, and to fix the wholesale value accordingly; but, at the same time, for the Commissioners to be in a position to contest the company’s claim if it came to a fight in which case the documents would contain ammunition to put before the solicitor.
I ask myself; can the Commissioners properly claim legal professional privilege for these internal documents? I think they can……………………..they were obtained as material to place before the solicitor if it came to a fight as the Commissioners anticipated that it might.”
O’Hanlon J. in the Silver Hill Duckling case adds:-
“I would qualify that statement of principle by further adopting the view expressed by the House of Lords in Waugh -v- British Railways Board (1980) AC 521 that the dominant purpose for the document coming into existence in the first place should have been the purpose of preparing for litigation then apprehended or threatened”.
14. The foregoing seem to lay out the relevant law. The Court will now apply these principles to the various documents contained in the Notice of Motion as amended. It is already clear that the motion paper mentions Item No. 6 which is clearly privileged and they are now seeking Item No. 56. The relevant date is the 6th October, 1992. The letter was written on behalf of the Plaintiff stating that the Plaintiff was holding the second and third named Defendants fully liable for all losses in connection with the theft. The Court has already recited a description of each of the other documents sought to be discovered. No. 56 is an internal memo which was clearly prepared by a Solicitor. Undoubtedly the dominant reason for the document coming into existence in the first place would have been for the purpose of preparing for litigation then apprehended or threatened.
15. Document No. 59 is a letter written by the Solicitors to the Superintendent of Store Street Garda Station and Document No. 65 is his reply. They undoubtedly came into existence after the contemplation of litigation. However, that in itself is not the only deciding factor. As Costello J. (as he then was) says in the passage earlier cited “the Rules of Court are destined to further the rules of justice and they should be construed by the Court so that they assist in the achievement of this end”. They could possibly be discovered by a third party Discovery Order against the Superintendent or produced at the trial by subpoena duces tecum. The matter is very finely balanced. With some hesitation the Court will hold them privileged on the grounds not merely that the correspondence was subsequent to the threat of proceedings but on the basis that they would have had no reason for their existence save for the purpose of preparing a defence.
16. Document No. 81 is an undated manuscript note of a telephone conversation at Store Street Garda Station. Document No. 87 are notes prepared by the Solicitor for the Defendants from a conversation which he had with a third party. These are both notes prepared after the relevant date in pursuance of preparing a defence and are privileged. Document No. 88 is a facsimile message from the Solicitor, Mr. Robert Talbot, on behalf of the second and third-named Defendants to the insurers’ representatives. This message is dated the 19th of October, 1992. This would seem to be covered by the note of the judgment of the late Mr. Justice Dixon. However, as I have already indicated, that is not a law report binding on this Court and can only be admissible as part of the argument if the Barrister urges it. Mr. Justice Dixon was undoubtedly one of the finest Judges this country has produced. I feel that the present document differs to the one mentioned in the note as it was directly involved with the question as to what response should be made to letters from the claimants. It is not binding on this Court because I do not have an admissible report. Maybe there would be other grounds distinguishing it. Anyway this Court is satisfied that No. 88 was clearly made for the purposes of and in contemplation of ascertaining the type of reply which should be sent to the letters emanating from the Plaintiff. Document No. 95 is a bundle of undated manuscript notes, memoranda and attendances, taken on behalf of the second and third-named Defendants. Many of them are indecipherable or incomprehensible or both. It is alleged that they were taken on behalf of the second and third-named Defendants following the alleged theft for the purpose of gathering information to be used to assist in the defence of the claim. The Court is not satisfied that these came into existence after the threat. The Defendants should look at them again and index them and the matter can, if necessary, be relisted. However, it may be that the parties can adjust the matter between themselves applying the principles laid down in this judgment. If this matter has to agitate the Court, it need not come before me but can be argued before Budd J. who is reading this judgment due to my incapacity to attend Court at this time.
17. Document No. 100 is a report prepared by International Investigations Ireland in contemplation of a claim providing information used in the defence of the said claim. It is clearly a confidential report prepared to deal with these proceedings and is clearly privileged. The Court doth reserve the question of costs to the trial Judge.
Gormley v Ireland
[1993] 2 IR 75
Bart Gormley Plaintiff v. Ireland, The Attorney General, The Minister for Communications and An Post Defendants
[1985 No. 10355P]
High Court 7th March 1991
Murphy J.
7th March 1991
This is yet another case in which the court has been called upon to inspect a number of documents in respect of which executive privilege has been claimed to ascertain whether in relation to each and every one of those documents the interest of the State based on that claim outweighs the right of the individual litigant to have access to the documents in connection with the exercise of his constitutional right to assert in an appropriate fashion his legal rights before the courts.
In the present case the plaintiff claims that from 1953 he had been employed as a clerical officer by the Minister for Posts and Telegraphs; that on the 7th July, 1957, he was interned at the Curragh Camp under or by virtue of the Offences Against the State Act, 1939, or the Regulations made thereunder; that on the 8th August, 1957, he was suspended from his duties by the Minister without pay and without any reason being given for his suspension; that he was released from internment in November, 1958, and that between the date of his release and April, 1983, the defendants refused to lift his suspension unless and until he signed a declaration in the following form:
“To undertake to respect the Constitution of Ireland and the law and to declare that he would not be a member of, nor assist any organisation which was an unlawful organisation under the Offences Against the State Act, 1939”.
Again the plaintiff asserts that between 1958 and 1983 he declined to sign that declaration on the grounds, or so he claimed, that:
“by virtue of never having been a member of any unlawful organisation and also by reason of the failure of the defendants and each of them and the Minister for Posts and Telegraphs to give him the reason for his suspension or to offer him any reasons or opportunity to answer any allegations or charges of misconduct on his part under which the same may have been based”.
In February, 1983, the plaintiff did make the declaration quoted above and was restored to his duties as clerical officer at Castlebar, County Mayo. The plaintiff is now seeking a declaration that he is entitled to a salary which will reflect his actual chronological age and without any interruption for the period of his suspension from duties.
A joint defence has been delivered on behalf of the first, second and third defendants and a separate defence has been filed on behalf of the fourth defendant, “An Post”. The defence filed on behalf of the first three defendants denies each and everyone of the claims made by or on behalf of the plaintiff Those defendants denied that the plaintiff was employed as a clerical officer since 1953. They denied the plaintiff was interned as alleged or at all. They denied that the plaintiff was suspended by the Minister for Posts and Telegraphs. They denied that the defendants neglected or refused to lift the suspension unless such a declaration as aforesaid was signed by the plaintiff. They denied that the defendants failed to lift the suspension. They denied that the plaintiff was not prepared to sign the declaration or that he was not prepared to sign it for the reasons alleged by him and in particular they denied that the defendants failed to give the plaintiff the reasons or opportunity to answer any allegations or charges of misconduct on his part.
In the light of this wide-ranging and somewhat surprising dispute of fact it is inevitable that many documents in the possession of the defendants would be relevant in relation to the issues and as such discoverable in pursuance of the order made in that behalf. Indeed it might be well to stress the converse: if the defendants found it possible to admit some of the allegations made by the plaintiff many of the documents would become irrelevant and would not require to be discovered by the defendants, less still inspected by the plaintiff.
In the affidavit of discovery made on behalf of the first three defendants Michael Grant (at para. 8) averred as follows:
“I object to producing the said documents as set forth in the second schedule hereto on the grounds that same are privileged as they consist of confidential memoranda and letters and minutes prepared concerning the plaintiff in relation to his detention and internment under the Offences Against the State Act, 1939, and in relation to the treatment accorded by the Government to civil servants (including the plaintiff) who had been arrested, detained, interned and released and I say and believe that the discovery, inspection and production of such memoranda, letters and minutes would be contrary to public policy in that it would be injurious to the interests of national security that documents of such a nature, relating to and concerning the exercise by the Government and the Minister for Justice of the power of internment conferred by the Offences Against the State Act, 1939, and the position of persons consequent upon their release from internment, be discovered inspected and produced”.
Notwithstanding the claim made by Mr. Grant in his affidavit and the undoubted involvement of the Offences Against the State Act, 1939, I would not go so far as to say that all the documents in respect of which executive privilege is claimed would involve national security. On the other hand they are unquestionably confidential, sensitive documents recording for the greater part submissions and advices by senior civil servants to Ministers and indeed to the Government. It is in the public interest that communications of this nature should be made on the basis that they would not be disclosed in legal proceedings unless the court is satisfied that the public interest in this regard is outweighed by the conflicting interest of the litigant to have access to such documents as may be necessary to enable him to prosecute fairly and properly his action in the courts set up under the Constitution. In attempting to balance these conflicting claims in the light of the issues raised on the pleadings it seems to me that notwithstanding the executive privilege attaching to all of these documents that those which set out the Government policy in relation to an undertaking being required to be given by a civil servant who has been detained under the Offences Against the State Act, 1939, as a condition of restoration to duty should be disclosed. In addition documentation dealing specifically with the alleged refusal of the plaintiff to give such undertaking should likewise be disclosed. On this basis it seems to me that the documents numbered 1 to 11 inclusive (but excluding document number 8) should be disclosed. In addition it seems to me that part of document number 66 should likewise be disclosed. That document is a memorandum which is annexed to a letter dated March, 1983. The first five paragraphs set out the history of the matter as seen from the defendants’ point of view and I think it is appropriate that that information, which is in fact repeated in a variety of documents, should be made available to the plaintiff. I would specifically advert to the fact that the fourth paragraph of the letter refers to representations made by a Dáil deputy on behalf of the plaintiff so as to make it clear that I would not authorise the disclosure of information of that nature if the representation had been made confidentially. As it is clear that the representation was made officially and publicly in Dáil Éireann no question of confidentiality arises. However the entire of this document could not be properly made available to the plaintiff as it contains legal advice. The disclosure should extend to and include the first two sentences of paragraph 6 (1) thereof The remainder of the memorandum commencing with the words “The Post Office Solicitor”should be past over and the contents thereof treated as confidential. It seems to be that I must make this special provision as the particular sub-paragraph of the memorandum expressly deals with the “reason for suspension” which is a matter in issue between the parties. In relation to the documents other than the eleven which I have specified I am satisfied on balance that the public interest in maintaining confidentiality should prevail over such interest as the plaintiff might have in seeking disclosure of their content. In that regard I may say that I do not think that withholding those documents from the plaintiff would prejudice him in presenting his case.
The affidavit on behalf of An Post was sworn by Mr. Seán Flynn on the 5th December, 1988. In paragraph 6 of his affidavit he refers to certain documents, namely, those numbered 39, 40, 41, 42, 43, 44, 45, 46 and 47 in the third part of the first schedule thereto and the claims that they are communications of a confidential nature with the gardaà and that the disclosure of such confidential communications would be contrary to the public interest. It is further stated that those documents related to the exercise by the Minister for Posts and Telegraphs of the executive power of the Government of the State and to advices received by him and that it would not be in the public interest to disclose such documents. If An Post did disclose those documents it would destroy any claim of privilege which the Minister for Communications might otherwise have made.
Of those documents it seems to me that inspection should be permitted of that numbered 52 but omitting (by pasting over or otherwise) a reference to the individual other than the plaintiff named therein. It seems to me that the other documentation which comprises largely correspondence with the gardaà would be properly treated as highly confidential material, the disclosure of which might be significantly detrimental to the public interest. The information contained in those documents might be of some value to the plaintiff in the conduct of his case but they are in no sense fundamental to it. On balance it seems to me that it would be appropriate, therefore, to refuse inspection of any of the documents aforesaid other than that numbered 52.
Finally it is important to stress in relation to the documents which are discovered and inspected in pursuance of the order of the court that those documents are made available for the proper processing of the present litigation and not for any other purpose. In the circumstances of the case it seems to me that the documents will be properly made available to the solicitor on behalf of the plaintiff on the undertaking of the solicitor to provide copies of such documents to the counsel briefed by him but not to permit those documents to be inspected by any other person.
O’Brien v Ireland and Ors [1995] 1 ILRM 22 O’Hanlon J
The plaintiff has instituted proceedings against the defendants claiming damages in respect of the death of her husband, who was killed by gunfire in the Lebanon on or about 6 December 1986, while serving as a member of the Irish Army with the United Nations Peace-Keeping Force which was deployed in South Lebanon at that time. She claims that his death occurred in circumstances involving negligence and breach of duty of the defendants, their servants and agents. This allegation has been denied by the defendants in the defence which has been filed on their behalf in the proceedings.
An application was made on behalf of the plaintiff for an order of discovery of documents against the defendants, and an order was duly made, and an affidavit of discovery has been sworn and filed by the defendants in purported compliance with that order. The plaintiff, however, challenges the entitlement of the defendants to claim privilege in respect of three items which feature at Nos. 5, 6 and 7 of the second part of the first schedule to the affidavit of discovery filed on behalf of the defendants, which is dated 26 February 1993, and was sworn by Anne O’Neill of the Department of Defence, Dublin 9, a higher executive officer in the said department.
The three items in question are described as follows in her said affidavit:
5. United Nations UNIFIL board of inquiry report.
6. The United Nations contingent book of inquiry report.
7. The court of inquiry report.
An application to the Master of the High Court to order further and better discovery having been refused by him on 23 March 1993, the plaintiff now moves the High Court for an order directing the defendants to make further and better discovery of the documentation in their possession relating to the death of the late Private William O’Brien and to specify by enumeration each and every document with the general classification of privilege claimed in respect of each such numbered document.
It appears that following the death of Private O’Brien while on active service in the Lebanon an official inquiry into his death was held under the auspices of the United Nations, and a further inquiry was held by a court of inquiry operating under our own Defence Acts with particular reference to the Act of 1954, the Rules of Procedure (Defence Forces) 1954 (SI No. 243 of 1954), and the Defence Forces Regulations 1982 (No. A5) regulation 11.
The plaintiff contends that a large volume of documentation must have been generated in the course of these inquiries; that an obligation exists on the part of the defendants when an affidavit of discovery is being sworn on their behalf, to enumerate each document with particularity so that the claim to privilege may be considered as a separate issue in respect of each document; and she further contests the applicability of the principle of privilege in respect of the documents in question.
I propose to deal first with the general claim to privilege advanced on behalf of the defendants in respect of the documentation emanating from the two inquiries.
Discovery of documents in relation to the UNIFIL type of inquiry has already been considered by Barrington J in the case of O’Mahony v. Minister for Defence, High Court 1985 No. 10645P, in which he delivered a short judgment on 27 June 1989. The note I have been given, of what appears to have been an ex tempore judgment, reads as follows:
I have formed a very clear view on this matter. In relation to the report of the UNIFIL court of inquiry I accept that these were documents given by an international organisation to the Irish government in circumstances of confidence. The Irish government rightly take the view that it should observe that confidence. I think that this is a reasonable attitude. In respect of the proceedings of the Irish court of inquiry, there seems to be little doubt that as a result of Regulation A5, no. 11, that those proceedings enjoy the same type of statutory privilege identified by O’Hanlon J in the case of Cully v. Northern Bank Finance Corporation Ltd [1984] ILRM 683. The only question which arises is whether regulations 121 and 122 of the Rules of Procedure (Defence Forces) 1954, are ultra vires. Under the Defence Act, the Minister for Defence has the power to make regulations. Having regard to the nature of the work, and the security implications of the obligations of the defence forces I do not consider that the regulations are unreasonable. Accordingly, I am not satisfied that they are ultra vires the powers of the minister. Therefore it appears to me that the privilege claimed by the defendants is correctly claimed.
In the affidavit of Anne O’Neill, sworn on 29 July 1993, on behalf of the defendants, she makes the following averments:
With regard to the privilege claimed in respect of the United Nations reports I say and believe that UNIFIL is the United Nations interim force in the Lebanon. I say and believe that the United Nations is accorded privileges and immunities under the Diplomatic Relations and Immunities Act 1967 and in the circumstances these privileges and immunities (including immunities of documents from legal process) applies to the documentation compiled in the two United Nations’ reports. I say and believe that it has always been the policy of the United Nations to maintain the policy of non-disclosure of these documents in such circumstances and that the United Nations are not prepared to waive this policy or privilege in the instant case. I further say and believe that it is in the public interest that this privilege be maintained and protected. The proceedings and reports of the United Nations board of inquiry into incidents such as the one complained of have always been treated as strictly confidential and have only been advanced to the defendants on the strict understanding that such confidentiality is maintained. Inquiries which are held in respect of such incidents are held in circumstances which will allow the participants to give the fullest information possible. In addition, these reports often almost of necessity deal with matters of security the breach of which may endanger not only the Irish battalion, but the United Nations peace-keeping force generally. The United Nations considers these documents to be inviolable and will not permit the disclosure of information contained therein. In the circumstances the defendants consider that they are obliged to assert that confidentiality in which to claim privilege in respect of the reports.
She then goes on to deal as follows with the further topic of the domestic inquiry held under the auspices of the Irish defence forces:
Aside from the issue of diplomatic privilege I say that essentially similar matters of public interest apply to the report of the court of inquiry held by the defence forces. In addition, as already indicated by me, I say and believe that the matters relating to this report are protected by statute and by the defence forces regulations from publication or production and in the circumstances the claim to privilege in respect of the documentation contained in that report is also made. (para. 5)
The Diplomatic Relations and Immunities Act 1967 (No. 8 of 1967) to which she refers, provides as follows in s. 9 of the Act:
9.— The organisation [the United Nations Organisation] and its property and a person in relation to whom the convention applies and the property of such a person shall have and enjoy inviolability, exemptions, facilities, immunities, privileges and rights in such manner, to such extent and subject to such extent and subject to such limitations (including the waiver thereof) as are provided for in each case by the convention.
The Convention on the Privileges and Immunities of the United Nations which is annexed as a Third Schedule to the Act of 1967 provides in Article II, s. 4, that:
The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located.
Similar provisions are found in the relevant statutory and regulatory provisions dealing with inquiries held at a local level under the provisions of the Defence Act 1954. Rules 121 and 122 of the Rules of Procedure (Defence Forces) 1954 (SI No. 243 of 1954), read as follows:
121.— The proceedings of a court of inquiry and any confession, statement or answer to any question made or given at a court of inquiry shall not be admissible in evidence against any person subject to military law, nor shall any evidence respecting the proceedings of a court of inquiry be given against any such person except upon his trial under s. 162 of the Act or under s. 169 of the Act for committing the civil offence of perjury.
122.— A finding of a court of inquiry shall not be admissible in evidence, nor shall any question be asked of any witness in relation thereto.
Finally, the regulation adopted for the purposes of inquiries within the defence forces, No. A5 of 1982, provides as follows in regulation 11(2):
(2) The findings and recommendations of all courts of inquiry shall be treated as confidential. They shall not be disclosed to interested parties, except as provided in s. 181(2) of the Defence Act 1954, Rules of Procedure (Defence Forces) 1954, and Defence Forces Regulations A8.
The plaintiff in the present case, through her counsel, relies on a number of judgments of the Supreme Court in which the court has maintained that the ultimate decision in relation to the issue of disclosure or non-disclosure of documentation in proceedings before the courts must lie with the courts themselves.
In Murphy v. Dublin Corporation [1972] IR 215, Walsh J, having examined at length the constitutional position, concluded by saying (at p. 234):
It is, however, impossible for the judicial power in the proper exercise of its functions to permit any other body or power to decide for it whether or not a document will be disclosed or produced. In the last resort the decision lies with the courts so long as they have seisin of the case.
The judgment of Walsh J in that case was re-affirmed by the Supreme Court as a correct statement of the law on the topic involved, in the case of Ambiorix Ltd v. Minister for the Environment (No. 1) [1992] 1 IR 277; [1992] ILRM 209, and the principles to be derived from Murphy’s case were summarised as follows in the judgment of Finlay CJ (at pp. 283/212–3 of the report):
It appears to me appropriate that I should re-state by way of summary, but not by way of expansion or qualification, what appear to me to be the clear principles laid down by this Court in the judgment of Walsh J in Murphy v. Dublin Corporation [1972] IR 215 and which, in my view, are a correct statement of the law on this topic. They can be summarised as follows.
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.
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.
These statements of the law are expressed in absolute terms, as leaving it to the ultimate decision of the courts in all cases to decide what documentary evidence must be produced (if production is sought by appropriate means) and what documentary evidence may be exempted from production, and to decide where necessary between conflicting claims based on the public interest between compelling production of documents and exempting them from production.
I do not consider, however, that either decision was intended to convey that the power of the legislature to intervene and confer the privilege of exemption from production on specified categories of documentary or other evidence was curtailed or restricted in any way, save insofar as any legislation enacted must not conflict with the overriding provisions of the Constitution.
Reference is made, for example, to what may be described as statutory privilege, in Cully v. Northern Bank Finance Corporation Ltd [1984] ILRM 683, where documents of the central bank were held to be privileged by reason of the oath of secrecy taken by those employed by the bank in conformity with the provisions of the Central Bank Act 1942, s. 31.
More recently, in the case of Attorney General v. Hamilton [1993] 2 IR 25; [1993] ILRM 81, the Supreme Court concluded, (having reviewed the previous decisions in Murphy and Ambiorix), that privilege from disclosure of contents and details of discussions at meetings of the government, while not referred to expressly in the Constitution, derived by necessary inference from articles of the Constitution dealing with separation of powers and the collective responsibility of government. The effect of the decision appears to be that a complete prohibition on disclosure exists in such a case, without the courts being left with any scope ‘to decide where necessary between conflicting claims based on the public interest between compelling production of documents and exempting them from production’ (as referred to in the Ambiorix case).
In the present case I am satisfied that the provisions of the relevant statutes, statutory instruments, and regulations made thereunder, to which reference has been made in detail in the course of this judgment, take effect to protect from disclosure the documents referred to in the first schedule, part II, of the defendants’ affidavit of discovery, in respect of which the claim to confidentiality has been challenged by the plaintiff.
While it would be preferable, in my opinion, to list the actual documents which are grouped together under the three headings referred to at items 5, 6 and 7 of the list contained in that part of the first schedule, I am prepared to accept that the description given in each case is intended to comprise all the documentation arising in and derived from the different inquiries referred to therein.
On this basis, I am prepared to apply the principle referred to by Finlay CJ in Ambiorix as follows:
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.
I propose to follow the decision of my former colleague, Barrington J, in O’Mahony v. Minister for Defence, and to uphold the defendants’ claim of privilege in respect of the documents already referred to.
O’Brien v. Minister for Defence
[1998] 2 ILRM 156
This is an appeal brought by the plaintiff in proceedings brought by her against the Minister for Defence, Ireland and the Attorney General. The claim arises out of the fact that on 6 December 1986 in the course of the performance of his duties as a member of the Defence Forces in South Lebanon, her husband was assigned to checkpoint and observation duties and in the course of his said duties received gunshot wounds as a result of which he died. The plaintiff, as the lawful widow of the said deceased, on her own behalf and on behalf of the children has instituted proceedings in the High Court claiming that the injuries which he sustained and which resulted in his death were occasioned by the negligence and breach of duty of the defendants, their servants or agents.
Proceedings were instituted by the plaintiff on 4 December 1989 followed by a statement of claim of 9 April 1991.
The matter proceeded on 18 June 1991 when the Master of the High Court made an order directing the defendants within 10 weeks of the date of the order to make discovery on oath of the documents which are or have been in their respective possession or power relating to the matters in question in the action and it was provided that the affidavit be sworn by Anne O’Neill.
An affidavit of discovery was prepared and filed and the plaintiff being dissatisfied with the contents and the manner in which the affidavits of discovery were made caused to be issued in the High Court a motion for an order directing the defendants to make further and better discovery of the documentation in their possession relating to the death of the late Private William O’Brien and to specify by enumeration each and every document with the general classification of the privilege claimed in respect of each such numbered document.
The matter came for hearing before the then O’Hanlon J of the High Court and by his judgment and order dated 2 August 1994 he refused the relief sought by the applicant. It is from that judgment and order that the plaintiff has appealed to this Court.
What was in issue originally was the plaintiff’s claim to be entitled to the documents and findings and report of in the first instance, the United Nations inquiry and secondly, the findings and recommendations of the court of inquiry held in this jurisdiction in accordance with the provisions of the Defence Act 1954.
The proceedings and documents in relation to the United Nations inquiry were, it was submitted, inviolable and protected by diplomatic immunity in accordance with the provisions of the relevant statute. It was also claimed by the defendants that the findings and report of the court of inquiry held in pursuance of the provisions of the Defence Act were also privileged and protected by virtue of the terms of the Defence Act 1954 and in particular the provisions of Article 121, 122 of the Defence Forces (Regulations) made in pursuance of the power conferred on the minister by the said Defence Act 1954. In addition, reliance was placed on the provisions of the other statutory instruments which were opened to the court by both Mr O’Reilly SC and Mr Keane SC.
While the plaintiff/appellant originally claimed to be entitled to the documentation in the possession of the defendants with relation to the United Nations inquiry, it is conceded by Mr O’Reilly on behalf of the appellant in this case that such documentation is in fact privileged and he accepts that it is so privileged.
He submitted, however, that the documents in relation to the court of inquiry do not enjoy the same privilege or immunity as the documents in relation to the United Nations inquiry and he has submitted that under the provisions of the Defence Act and the regulations that what is protected is the finding and recommendations of the court of inquiry which are expressly stated in the statute to be confidential.
It had been argued before the High Court that this privilege extended to all the proceedings before the court of inquiry and Mr O’Reilly on behalf of the appellant has strongly contended that this is not the case, that the provisions of the Defence Act and the relevant regulations are quite clear and specific and relate only to the findings and recommendations of the court of inquiry.
Mr Keane, however, strongly submitted that the court should take a contrary view and extend the statutory privilege to cover all proceedings and all statements made by witnesses before the court of inquiry.
It seems, however, that the position would appear to be that the statutory privilege extends only to the findings and recommendations of the court of inquiry. The question as to whether the other privileges claimed relating to executive privilege and the confidentiality between legal advisers remain.
It is not open to the court to decide on these questions at this stage in the absence of having available to it particulars of the documentation in the possession of the defendants relating to the matter and without having particulars with regard to the nature of the privilege claimed in respect of each document. It is not sufficient in the circumstances of this case to claim general privilege in respect of bundles of documents or files as they have been described.
The onus is on the defendants to specify in detail by number each of the documents in their possession relating to the matters the subject matter of the proceedings and to specify in detail the nature of the privilege claimed in respect of each document and the basis for such privilege.
Consequently, I am satisfied that the learned trial judge was wrong in refusing the application for further and better discovery made before him. All that was sought in the notice of motion was what I have already enumerated as appearing from the notice of motion, an order directing the defendants to make further and better discovery of the documentation in their possession relating to the death of the late Private William O’Brien and to specify by enumeration each and every document with the general classification of privilege claimed in respect of each such numbered document and the court will direct that an order be made in those terms making it quite clear that the onus is on the defendants to specify all of the documents in their possession relating to these matters, including the documents in their possession in relation to the United Nations inquiries. The court is not ruling that these documents should be produced but it is ruling that they should be enumerated and the basis of the privilege claimed in respect thereof be set forth.
The court views with concern the fact that nearly three years have elapsed since this motion was brought before O’Hanlon J and since he gave his judgment in August 1994, which is a period of nearly three years, and it is unsatisfactory and unjustifiable that some of the parties had not applied to the court to have a date for the hearing of this appeal, holding up what may or may not be a justifiable claim by the plaintiff by a further three unnecessary years.
Introduction
In these proceedings, the plaintiff is claiming damages for personal injuries which he alleges he sustained as a result of an assault by the first and second named defendants, who are members of the Garda Síochána and who are hereafter referred to as ‘the garda officers’, and in respect of what was alleged to be negligent driving by one of the garda officers of a garda car on the same occasion. The alleged assault and negligence were the subject of a complaint by the plaintiff to the Garda Síochána Complaints Board (hereafter ‘the board’) and the plaintiff applied to the Master of the High Court for an order of discovery of all documents in the possession of the board pertaining to the complaint. The application having been refused by the Master came before Barr J who, in a reserved judgment on 27 May 1993 (reported in [1994] 1 IR 480), concluded that the plaintiff was entitled to such an order of discovery. From his judgment and order, the board now appeals to this Court.
The proceedings arise out of an incident in O’Connell Street, Sligo on 17 May 1987. The plaintiff alleges that he was assaulted and beaten by the garda officers on that occasion and suffered further personal injuries as a result of the negligent driving of the garda car by one of the garda officers. The garda officers and the other defendants deny the allegations made by the plaintiff and say that, on the occasion in question, the plaintiff was obstructing the garda officers in their efforts to provide transport for a third party who was in a drunken condition.
An affidavit was filed on behalf of the plaintiff by his solicitor in which he said that he requested the board to furnish him with details of the response of the garda officers to the complaint made by the plaintiff to them, but that the board had refused to furnish him with that information. In a replying affidavit, the chief executive of the board, Mr Sean Hurley, referred to the provisions of the Garda Síochána (Complaints) Act 1986 (hereafter ‘the 1986 Act’) under which the board was established and, in particular, to s. 12 which prohibited the disclosure of confidential information by members or staff of the board. He said at paragraph 5:
A paramount concern of the board has always been to maintain the confidentiality of the contents of any investigation conducted by the board. This, on the one hand, ensures the efficacy of the continuing work of the board that persons, both members of An Garda Síochána and members of the general public will more freely assist the board when they can be assured of the confidentiality of any statements made by them to the board. It also protects against evidence collated by the board, while exercising its independent functions, being utilised by either party to a dispute in either civil or criminal proceedings. I further say and believe that it is essential for the effective exercise of the functions of the board under the Act that complaints made to it be treated in confidence.
The High Court judgment
In his judgment Barr J summarised the procedures carried out by the board as follows at p. 483:
The board … proceeded to have the complaint investigated pursuant to the statutory duties and powers conferred on the board. An investigating officer was duly appointed to enquire into the matter on behalf of the board. Eleven persons were interviewed in course of the investigation and written statements were obtained from each of them. They included the plaintiff, the third party and [the garda officers].
The others were independent witnesses who observed the alleged fracas and who described what they saw in their respective statements. On completion of his enquiries, the investigating officer compiled a report on the plaintiff’s complaint for the consideration of the board. The report was duly considered and the board decided to refer the matter to the Director of Public Prosecutions. He in turn directed that no criminal charges were warranted. In pursuance of the powers conferred on the board by s. 7(8) of the [1986] Act, it decided to take no further action and this decision was communicated to the parties involved.
Barr J said that he considered that his function was, having read the documents in question, to resolve the conflict (if such existed in this case) between the public interest in the production of evidence (being the right on which the plaintiff relied) and the public interest in the confidentiality of documents relating to the exercise of the quasi-judicial statutory power (on which the board relied). Having said that he appreciated that some complainants might be inhibited from approaching the board if confidentiality were not assured and might make a complaint specifically on the basis of confidentiality and that the same might apply to other persons interviewed by an investigating officer in connection with a complaint, he summed up his conclusions as follows at p. 486:
These considerations do not seem to apply in the present case. The complainant is the person who is seeking discovery of documents and all the statements are in nature broadly similar to those which one might find in what is popularly referred to as the book of evidence in a criminal trial on indictment. There is nothing in any of the statements of a confidential nature, nor anything to suggest that any of the persons who made statements did so on a confidential basis. I do not consider that the functions of the board would be compromised in any way by disclosure to the plaintiff of all statements obtained on behalf of the board in connection with his complaint. It follows that the defendants are also entitled to sight of the statements and copies thereof if they seek them from the board.
Submissions of the parties
In this Court, Mr MacMenamin SC on behalf of the board submitted that the learned High Court judge had erred in law in holding that the test to be applied was simply the balancing of the public interest in the production of documents against the public interest in the confidentiality of documents relating to the exercise of a quasi-judicial statutory power. He said that, in confining himself to that test, Barr J failed to have regard to the express statutory prohibition on the disclosure of confidential information contained in s. 12 of the 1986 Act. Having referred to the fact that s. 12 applies, not merely to particular information which is expressed to be confidential, but also to information of a particular class or description which is expressed to be confidential, Mr MacMenamin compared the prohibition imposed by the section to similar statutory constraints contained in legislation such as the Official Secrets Act 1963, the Central Bank Act 1942 and the Adoption Act 1976. He cited in support the decisions of O’Hanlon J in Cully v. Northern Bank Finance Corporation Ltd [1984] ILRM 683 and O’Brien v. Ireland [1995] 1 IR 568 and of Costello P in P.B. v. A.L. [1996] 1 ILRM 154.
Mr MacMenamin further submitted that the test to be applied in every application of this nature was that laid down in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55 i.e. whether the documents contained information which might either directly or indirectly enable the party requiring them either to advance his own case or to damage the case of his adversary. He said there was nothing in the judgment of Barr J to indicate that the documents meet those criteria.
Mr MacMenamin conceded that the concept derived from the English law of ‘public interest immunity’ could not be regarded as consistent with the Constitution, having regard to the series of decisions culminating in Ambiorix Ltd v. Minister for the Environment (No. 1) [1992] 1 IR 277; [1992] ILRM 209. He submitted, however, that where, as here, the Oireachtas had expressly prohibited the communication of information by a body such as the board, that legislative prohibition should be upheld by the courts. There were, moreover, he urged, policy considerations which should also be borne in mind: if the board were to be subjected to orders for discovery of this nature, it might have the effect of discouraging persons alleging misconduct against the gardaí from making complaints and might also make garda officers who are asked to co-operate with the enquiry more reluctant to do so. He cited in support of these submissions the decision of Costello J (as he then was) in Director of Consumer Affairs v. Sugar Distributors Ltd [1991] 1 IR 225; [1991] ILRM 395 and the decisions of the Court of Appeal in Neilson v. Laugharne [1981] QB 736 and Halford v. Sharples [1992] 1 WLR 736.
Mr Hardiman SC on behalf of the plaintiff submitted that the documents in question were clearly relevant and came within the principle in Compagnie Financiere du Pacifique v. Peruvian Guano Co. He submitted that the board had failed to identify any countervailing public interest which required their non-disclosure: s. 12 of the 1986 Act, he said, did no more than prohibit members of the board or their staff from disclosing of their own volition information which had come to them confidentially during the course of their work. If the legislature had intended to confer a statutory privilege of the sort contended for, it would have done so, as it had already done in the case of the Adoption Act 1976.
Mr Hardiman further submitted that the authorities relied on by the board in which claims of privilege had been upheld on the ground that the anonymity of complainants or informers should be preserved had no application in the present case, where the complainant himself was seeking the documents. He submitted that the authorities demonstrated that the learned High Court judge in the present case had adopted the correct approach in examining the documents and coming to a conclusion as to whether the board were justified in claiming that they were of a confidential nature and should be withheld from production on that ground. He submitted that there was no substance in the contention that either complainants would be deterred in the future from making complaints or that garda officers would be reluctant to co-operate if an order for discovery was made in the present case. Such an order could only be made where, as here, the judge had inspected the relevant documents and come to a conclusion that they were not of such a nature as to require their protection from disclosure.
The applicable law
The 1986 Act was enacted, according to its long title,
to provide for a system of investigation and adjudication of complaints made by the public about the conduct of members of the Garda Síochána (other than the Commissioner of the Garda Síochána) ….
Under the machinery established by the Act, a complaint as to the conduct of a member of the garda may be made by a member of the public either directly to the gardaí or to the board. Where the latter course is adopted and the chief executive of the board is satisfied that the complaint is admissible (as to which there are conditions prescribed by the Act), he must notify the Commissioner of An Garda Síochána. Unless the complaint is considered by both the commissioner and the board to be suitable for resolution in an informal manner, the commissioner must appoint a member of the garda of a specified rank to investigate the complaint. The investigating officer is in due course required to present a report to the chief executive and the investigation itself is to be supervised by the board. If the board, having considered the report, is of the opinion that the complaint concerned is admissible and may constitute an offence committed by the member concerned, it must refer the matter to the Director of Public Prosecutions. If it does not come within that category and is not of a minor nature (in which case it may be dealt with by the commissioner by way of ‘advice, admonition or warning’), the board must refer the matter to a tribunal, the composition, powers and functions of which are specified in detail in the Act. There is also provision for an appeal from the findings of such a tribunal to a board established under the Act called ‘the Garda Síochána Complaints Appeal Board’.
S. 12 of the Act provides that:
(1) A person shall not disclose confidential information obtained by him while performing functions as a member of the board, a tribunal or the appeal board, or as a member of the staff of the board, unless he is duly authorised to do so.
(2) In this section—
‘confidential’ means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description;
‘duly authorised’ means in the case of a member of the appeal board authorised by the appeal board and, in any other case, authorised by the board.
(3) A person who contravenes subs. (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £700 or to imprisonment for a term not exceeding six months or to both.
The importance of the Act hardly requires emphasis. The Garda Síochána, in common with police forces in every ordered society, is entrusted with wide powers to arrest and detain citizens who are suspected of being engaged in crime. Those powers are manifestly capable of serious abuse and, in recent decades, the courts have repeatedly expressed their concern that the constitutional rights of persons in custody should be respected. Not every encounter between the citizens and the gardaí, however, whether or not it culminates in an arrest and detention, is followed by subsequent criminal proceedings. Even if those proceedings are instituted, it cannot be said with certainty that, in every such case, misconduct by the gardaí will be the subject of a full investigation, no matter how vigilant the courts are to uphold the constitutional rights of the accused.
The establishment of procedures designed to ensure that complaints of misconduct against members of the garda may be the subject of an investigation under the supervision of an independent body is not only of value in protecting the rights of individual citizens who complain of misconduct. It can also play an important part in maintaining and enhancing the confidence of the public in the Garda Síochána.
I have laid stress on what seem to me to be the policy considerations underlying the 1986 Act at the outset, since they must be given due weight in considering the claim made by the board in these proceedings that they should not be required to disclose the documents relating to the plaintiff’s complaint. As I have already noted, the chief executive of the board has expressed concern that the efficacy of the continuing work of the board will be affected if members of the public and of the Garda Síochána cannot be assured of the confidentiality of statements made by them to the board.
The principles of law applicable to a case of this nature were summarised by Finlay CJ in Ambiorix Ltd v. Minister for the Environment (No. 1) at pp. 283/212:
(1) Under the Constitution the administration of justice is committed solely tothe 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.
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.
The observations of the learned Chief Justice in the last three subparagraphs were clearly directed to a claim of what at one stage was known as ‘executive privilege’: a fortiori, they apply to a claim by a body such as the board. Mr MacMenamin indeed did not seek to rely on ‘executive privilege’ or any analogous form of privilege as protecting the documents in this case from production. He did, however, submit that the documents enjoyed a statutory protection from disclosure by virtue of s. 12 and, in any event, belonged to a category of documents which should be treated as privileged (to use again the words of the Chief Justice) ‘merely on the basis of a description of their nature and contents ….’
Since the decision in Murphy v. Dublin Corporation [1972] IR 215, our law has taken a different course from English law in declining to recognise any right of the executive to prevent the judicial arm of government from examining particular documents or categories of documents in order to ascertain whether they should be admitted in evidence in civil or criminal proceedings. While it is always open to the executive, as it is to any citizen, to claim that specific documents are privileged, if that claim is opposed, the issue as to whether the documents must be produced can only be decided by the court having seisin of the proceedings. Neither a minister of state nor any other person in the public service can prevent the court from embarking on the enquiry by certifying that, in his or her opinion, the public interest requires that the documents be not produced. To that general principle, the decision of this Court in Attorney General v. Hamilton (No. 1) [1993] 2 IR 250; [1993] ILRM 81 that a former minister giving evidence at a tribunal of inquiry could not be required to give evidence as to what was said at meetings of the government, offers an apparent rather than a real exception. The evidence was not being sought in the course of any proceedings in any court and, in any event, the immunity against disclosure rested on the particular constitutional position of the government.
However, the fact that the decision in civil or criminal proceedings before any court established under the Constitution as to whether documents should be discovered is exclusively an issue for determination by the judicial arm does not preclude the courts from identifying particular categories of evidence which, in general, will be regarded as privileged. In such cases, as has been frequently pointed out, the courts must balance the public interest in the production of documents which are relevant to the issues to be determined in the particular case against some other public interest which is invoked to justify their being withheld. Of the categories which have been recognised by the courts in Ireland as in other common law jurisdictions as in general protected against disclosure because of such a countervailing public interest, perhaps the most conspicuous is that embraced by legal professional privilege. In that case, it is another facet of the administration of justice — the importance of ensuring that a client’s confidences are fully respected — which justifies the exclusion. But, as Lord Hailsham of St Marylebone pointed out in D. v. NSPCC [1978] AC 171 at p. 230:
the categories of public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and social legislation develop.
Coming closer to the issues in this case, another countervailing public interest — in the detection and prevention of crime — has led the courts, since the decision of the English Court of Appeal in Marks v. Beyfus (1890) 25 QBD 494, to allow the anonymity of police informers to be preserved. The principle so established was extended in D. v. NSPCC to those who gave information about neglect or ill-treatment of children to a local authority or the NSPCC. In this country, in Director of Consumer of Affairs v. Sugar Distributors Ltd Costello J, as he then was, took the view that considerations of a similar nature applied to complaints made to the Director of Consumer Affairs and Fair Trade, saying (at pp. 228/399):
… The Oireachtas has conferred on the director important law enforcement functions. I am satisfied that it is in the public interest that the court should protect the effective functioning by the director of his statutory powers. I am further satisfied that to enable him to exercise his powers effectively he must be able to assure complainants that information given to him (and, indeed, in certain circumstances the names of complainants) will be treated in confidence and not disclosed as otherwise complaints may not be forthcoming and breaches of ministerial orders are likely to go undetected. The requisite protection should embrace all documents forwarded by a complainant with a complaint.
But the immunity granted cannot be an absolute one.
When a claim is made, as has been in this case, that it is not in the public interest that the 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.
In England, the question as to whether statements taken by the police in pursuance of a statutory police inquiry belonged to a privileged category of documents was considered by the Court of Appeal in Neilson v. Laugharne [1981] QB 736. The court was unanimously of the view that they were so privileged. In arriving at that conclusion, Oliver LJ referred to the decision of the House of Lords in R. v. Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388. In that case, a claim had been made that documents in the possession of the Gaming Board in respect of which the plaintiff in certain civil proceedings had served a witness summons were privileged. Upholding that claim, Lord Reid, having referred to the danger that the board could not adequately perform their duty unless they could preserve the confidentiality of communications to them concerning the character of applicants for licences, went on at p. 401:
It is possible that some documents coming to the board could be disclosed without fear of such consequences. But I would think it quite impracticable for the board or the court to be sure of this. So it appears to me that, if there is not to be very serious danger of the board being deprived of information essential for the proper performance of their difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant.
Oliver LJ adopted a similar approach to the statements to the police. He pointed out that police officers who are potential defendants, might be disinclined to provide statements which could subsequently be used as the basis of civil claims against them and that they might be unwilling to co-operate in assisting in inquiries into the conduct of their superiors if they know that the statements they have made will come to the knowledge of the officer under investigation. He also pointed to the position of relatives or neighbours of the complainant who might be unwilling to co-operate with investigations if they knew that statements which they made were liable to be disclosed to the complainant in any civil proceedings. As to the position of the complainant, Oliver LJ was of the view that, having made his complaint, he might refuse to give a statement to the investigating officer if he thought that it could be used against him in any civil proceedings he was contemplating. He summed up his views as follows at p. 754:
… There has to be borne in mind the immense burden on police authorities up and down the country if, in every case in which civil proceedings are instituted, every statement made on an inquiry under the section has to be scrutinised and, if appropriate, made the subject matter of a ‘contents’ claim [ i.e. as distinct from a class claim that the document is privileged without regard to its contents].
If, however, these documents have to be disclosed, the authorities would either have to face this burden or seek to procure, so far as possible, that investigating officers so conduct their enquiries as to ensure that the written record of statements made to them contains no material the disclosure of which might be injurious (for instance by containing sources of information). An inquiry cannot be properly or fully conducted if the investigating officer has constantly to be keeping an eye on the possible consequences of public disclosure in civil proceedings.
That case was decided shortly after the House of Lords in Burmah Oil Co. Ltd v. Governor and Company of the Bank of England [1980] AC 1090 had expressed the view that, in some cases at least, it was legitimate for a judge considering a claim that documents belonged to a privileged ‘class’ to examine the documents before coming to a conclusion as to whether they should be disclosed. Neither Lord Denning MR nor O’Connor LJ (the other members of the court) expressed any enthusiasm for that course in Neilson v. Laugharne [1981] QB 736 and it is not even referred to in the judgment of Oliver LJ.
The reluctance of courts in England to examine documents in respect of which a claim has been made by a public official that they belong to a class which has been recognised as privileged (usually because it is said that it was ‘necessary for the proper functioning of the public service’ that they be withheld) has not been shared by Irish courts. As was made clear in the decisions of this Court to which I have already referred, an issue as to whether a claim for privilege has been made out or as to whether the public interest involved in the production of evidence in judicial proceedings should prevail over the aspect of public interest involved in the confidentiality of documents pertaining to the exercise of the executive power of the State must be decided by the courts. On occasions these issues can be resolved by the judge by reference to the description of the documents contained in the affidavit of discovery. More frequently it will involve an examination of some or all of the disputed documents. In any event the procedure to be adopted must depend to some extent upon the circumstances of each case and the nature and extent of the disputed documentation.
It is also clear that the fact that documents were furnished in confidence to the party against whom the order of discovery is sought does not of itself make them privileged: see In re Kevin O’Kelly (1974) 108 ILTR 97; Burke v. Central Independent Television plc [1994] 2 IR 61; [1994] 2 ILRM 161 and Attorney General v. Mulholland [1963] 2 QB 477. It is, of course, the case that that principle has no application to claims of legal professional privilege and it is unnecessary to consider in this case whether, in particular circumstances, the court might refrain from requiring members of other professions to disclose confidential communications where it did not appear essential in the interests of justice in the particular case that they should be so disclosed.
In the present case, there must be weighed against the public interest in the disclosure of the documents relating to the complaint to the board, the public interest in ensuring that the statutory functions of the board are not frustrated. There may be cases — of which this is not one — in which documents relating to a complaint to a board are sought by a party to litigation other than the complainant. In such a case, depending entirely on the particular circumstances, the court might be justified in declining to allow the inspection of documents forwarded in confidence by a complainant to the chief executive or even the identity of a complainant. It may also be that, in such a case, the appropriate course for the judge to take might be that proposed by Costello J in Director of Consumer Affairs v. Sugar Distributors Ltd, i.e. of examining the documents in order to ascertain whether the interests of justice required the disclosure of the identity of the complainant and the documents forwarded by him in the circumstances of the particular case. Those considerations do not arise in the present case, where it is the complainant himself who seeks the production of the documents relating to his complaint.
There remains the question of a possible statutory immunity against disclosure. In O’Brien v. Ireland [1995] 1 IR 568, O’Hanlon J considered the effect of the following provision in the Diplomatic Relations and Immunities Act 1967:
The organisation [the United Nations Organisation] and its property and a person in relation to whom the convention applies and the property of such a person shall have and enjoy inviolability, exemptions, facilities, immunities, privileges and rights in such manner, to such extent and subject to such extent and subject to such limitations (including the waiver thereof) as are provided for in each case by the convention.
The convention in question provided that the archives of the United Nations, and all documents belonging to it or held by it should be ‘inviolable wherever located’. Similar provisions in the Defence Act 1954 and the rules of procedure made thereunder rendering inadmissible the proceedings of a court of inquiry under that code were also considered by O’Hanlon J in that case. Having cited the statement of the law by Finlay CJ in Ambiorix Ltd v. Minister for the Environment No. (1), and having referred to the earlier decision in Murphy v. Dublin Corporation [1972] IR 215, he said at p. 575:
I do not consider … that either decision was intended to convey that the power of the legislature to intervene and confer the privilege of exemption from production on specified categories of documentary or other evidence was curtailed or restricted in any way, save insofar as any legislation enacted must not conflict with the overriding provisions of the Constitution.
He accordingly concluded that the documents the possession of which was sought by the plaintiff in those proceedings were protected from disclosure by virtue of the statutory provisions to which I have referred and that there was no obligation on the court to examine the particular documents before ruling on the claim of privilege.
In an earlier decision, Cully v. Northern Bank Finance Corporation Ltd [1984] ILRM 683, O’Hanlon J held that s. 31 of the Central Bank Act 1942 — which required employees of the bank to take an oath not to disclose information obtained in the course of their duty, except in certain specified circumstances — constituted a form of statutory privilege which the courts were obliged to uphold.
A statutory provision somewhat similar to that considered by O’Hanlon J in O’Brien v. Ireland was the subject of P.B. v. A.L. [1996] 1 ILRM 154. S. 8 of 71the Adoption Act 1976 provides that:
A court shall not make an order under s. 22(5) of the Principal Act or an order for the discovery, inspection, production or copying of any book, document or record of the board (or of any extracts therefrom), or otherwise in relation to the giving or obtaining of information therefrom, unless it is satisfied that it is in the best interests of any child concerned to do so.
Costello P concluded that the effect of this provision was that documents to which it referred could only be made available by a special order of the court where the court was satisfied that the statutory privilege accorded to the documents should be withdrawn in the best interests of the child.
I have cited these statutory provisions in extenso, as they are in sharp contrast to s. 12 of the 1986 Act which is under consideration in this case. That provision does not purport to confer any form of statutory privilege or immunity from disclosure: it does no more than prohibit members of the board or its employees from disclosing information expressed to be confidential (or categories expressed to be such) to anyone else without the authority of the board. That is not in any sense a prohibition on the production to a court in the interests of justice of documents in the board’s possession which are relevant to proceedings before that court. If the Oireachtas had intended to confer a privilege or immunity on such documents, it would have used language similar to that contained in the other statutes to which I have referred.
I am, accordingly, satisfied that the documents which are sought in the present case do not come within any category of documents identified by the decisions of the courts as being privileged from production even without examination by the court. I am also satisfied that no such immunity from production is conferred by s. 12 of the 1986 Act.
It only remains to add that, as in any other application for discovery, the person or body against whom it is sought is not obliged to disclose the documents unless they are actually relevant to the issue in the proceedings in which discovery is sought and that the appropriate test for determining whether they are relevant is that laid down in Compagnie Financiere du Pacifique v. Peruvian Guano Co. and repeatedly invoked by our courts, i.e. that they contain information which may either directly or indirectly enable the party requiring the documents either to advance his own case or to damage the case of his adversary.
Conclusions
It follows from the legal principles which I have endeavoured to summarise in the previous section that the learned High Court judge in the present case was correct in not treating the documents relating to the plaintiff’s complaint as privileged by reason of their nature and, accordingly, in proceeding to examine them before deciding whether, in respect of any or all of them, the board’s claim to withhold them from inspection should be upheld. This Court was not invited to undertake any similar examination of the documents concerned, in the event of it being satisfied that he was entitled to examine the documents before ruling on the claim of privilege. As already noted, Barr J concluded that the documents in question were broadly similar to what one might find in the ‘book of evidence’ in a criminal trial on indictment and that there was nothing in any of the statements of a confidential nature or which suggested that the statements had been made on a confidential basis.
The learned High Court judge having applied the correct principles of law and having reached that conclusion as a result of his examination of the documents, was clearly correct in granting the order of discovery sought. I would, accordingly, dismiss the appeal and affirm the order of the High Court insofar as it ordered the board to make discovery on oath of the documents in their possession pertaining to the complaint made by the plaintiff on 22 February 1988.
Skeffington v. Rooney
[1997] 2 I.L.R.M. 56
Introduction
In these proceedings, the plaintiff is claiming damages for personal injuries which he alleges he sustained as a result of an assault by the first and second named defendants, who are members of the Garda Síochána and who are hereafter referred to as ‘the garda officers’, and in respect of what was alleged to be negligent driving by one of the garda officers of a garda car on the same occasion. The alleged assault and negligence were the subject of a complaint by the plaintiff to the Garda Síochána Complaints Board (hereafter ‘the board’) and the plaintiff applied to the Master of the High Court for an order of discovery of all documents in the possession of the board pertaining to the complaint. The application having been refused by the Master came before Barr J who, in a reserved judgment on 27 May 1993 (reported in [1994] 1 IR 480), concluded that the plaintiff was entitled to such an order of discovery. From his judgment and order, the board now appeals to this Court.
The proceedings arise out of an incident in O’Connell Street, Sligo on 17 May 1987. The plaintiff alleges that he was assaulted and beaten by the garda officers on that occasion and suffered further personal injuries as a result of the negligent driving of the garda car by one of the garda officers. The garda officers and the other defendants deny the allegations made by the plaintiff and say that, on the occasion in question, the plaintiff was obstructing the garda officers in their efforts to provide transport for a third party who was in a drunken condition.
An affidavit was filed on behalf of the plaintiff by his solicitor in which he said that he requested the board to furnish him with details of the response of the garda officers to the complaint made by the plaintiff to them, but that the board had refused to furnish him with that information. In a replying affidavit, the chief executive of the board, Mr Sean Hurley, referred to the provisions of the Garda Síochána (Complaints) Act 1986 (hereafter ‘the 1986 Act’) under which the board was established and, in particular, to s. 12 which prohibited the disclosure of confidential information by members or staff of the board. He said at paragraph 5:
A paramount concern of the board has always been to maintain the confidentiality of the contents of any investigation conducted by the board. This, on the one hand, ensures the efficacy of the continuing work of the board that persons, both members of An Garda Síochána and members of the general public will more freely assist the board when they can be assured of the confidentiality of any statements made by them to the board. It also protects against evidence collated by the board, while exercising its independent functions, being utilised by either party to a dispute in either civil or criminal proceedings. I further say and believe that it is essential for the effective exercise of the functions of the board under the Act that complaints made to it be treated in confidence.
The High Court judgment
In his judgment Barr J summarised the procedures carried out by the board as follows at p. 483:
The board … proceeded to have the complaint investigated pursuant to the statutory duties and powers conferred on the board. An investigating officer was duly appointed to enquire into the matter on behalf of the board. Eleven persons were interviewed in course of the investigation and written statements were obtained from each of them. They included the plaintiff, the third party and [the garda officers].
The others were independent witnesses who observed the alleged fracas and who described what they saw in their respective statements. On completion of his enquiries, the investigating officer compiled a report on the plaintiff’s complaint for the consideration of the board. The report was duly considered and the board decided to refer the matter to the Director of Public Prosecutions. He in turn directed that no criminal charges were warranted. In pursuance of the powers conferred on the board by s. 7(8) of the [1986] Act, it decided to take no further action and this decision was communicated to the parties involved.
Barr J said that he considered that his function was, having read the documents in question, to resolve the conflict (if such existed in this case) between the public interest in the production of evidence (being the right on which the plaintiff relied) and the public interest in the confidentiality of documents relating to the exercise of the quasi-judicial statutory power (on which the board relied). Having said that he appreciated that some complainants might be inhibited from approaching the board if confidentiality were not assured and might make a complaint specifically on the basis of confidentiality and that the same might apply to other persons interviewed by an investigating officer in connection with a complaint, he summed up his conclusions as follows at p. 486:
These considerations do not seem to apply in the present case. The complainant is the person who is seeking discovery of documents and all the statements are in nature broadly similar to those which one might find in what is popularly referred to as the book of evidence in a criminal trial on indictment. There is nothing in any of the statements of a confidential nature, nor anything to suggest that any of the persons who made statements did so on a confidential basis. I do not consider that the functions of the board would be compromised in any way by disclosure to the plaintiff of all statements obtained on behalf of the board in connection with his complaint. It follows that the defendants are also entitled to sight of the statements and copies thereof if they seek them from the board.
Submissions of the parties
In this Court, Mr MacMenamin SC on behalf of the board submitted that the learned High Court judge had erred in law in holding that the test to be applied was simply the balancing of the public interest in the production of documents against the public interest in the confidentiality of documents relating to the exercise of a quasi-judicial statutory power. He said that, in confining himself to that test, Barr J failed to have regard to the express statutory prohibition on the disclosure of confidential information contained in s. 12 of the 1986 Act. Having referred to the fact that s. 12 applies, not merely to particular information which is expressed to be confidential, but also to information of a particular class or description which is expressed to be confidential, Mr MacMenamin compared the prohibition imposed by the section to similar statutory constraints contained in legislation such as the Official Secrets Act 1963, the Central Bank Act 1942 and the Adoption Act 1976. He cited in support the decisions of O’Hanlon J in Cully v. Northern Bank Finance Corporation Ltd [1984] ILRM 683 and O’Brien v. Ireland [1995] 1 IR 568 and of Costello P in P.B. v. A.L. [1996] 1 ILRM 154.
Mr MacMenamin further submitted that the test to be applied in every application of this nature was that laid down in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55 i.e. whether the documents contained information which might either directly or indirectly enable the party requiring them either to advance his own case or to damage the case of his adversary. He said there was nothing in the judgment of Barr J to indicate that the documents meet those criteria.
Mr MacMenamin conceded that the concept derived from the English law of ‘public interest immunity’ could not be regarded as consistent with the Constitution, having regard to the series of decisions culminating in Ambiorix Ltd v. Minister for the Environment (No. 1) [1992] 1 IR 277; [1992] ILRM 209. He submitted, however, that where, as here, the Oireachtas had expressly prohibited the communication of information by a body such as the board, that legislative prohibition should be upheld by the courts. There were, moreover, he urged, policy considerations which should also be borne in mind: if the board were to be subjected to orders for discovery of this nature, it might have the effect of discouraging persons alleging misconduct against the gardaí from making complaints and might also make garda officers who are asked to co-operate with the enquiry more reluctant to do so. He cited in support of these submissions the decision of Costello J (as he then was) in Director of Consumer Affairs v. Sugar Distributors Ltd [1991] 1 IR 225; [1991] ILRM 395 and the decisions of the Court of Appeal in Neilson v. Laugharne [1981] QB 736 and Halford v. Sharples [1992] 1 WLR 736.
Mr Hardiman SC on behalf of the plaintiff submitted that the documents in question were clearly relevant and came within the principle in Compagnie Financiere du Pacifique v. Peruvian Guano Co. He submitted that the board had failed to identify any countervailing public interest which required their non-disclosure: s. 12 of the 1986 Act, he said, did no more than prohibit members of the board or their staff from disclosing of their own volition information which had come to them confidentially during the course of their work. If the legislature had intended to confer a statutory privilege of the sort contended for, it would have done so, as it had already done in the case of the Adoption Act 1976.
Mr Hardiman further submitted that the authorities relied on by the board in which claims of privilege had been upheld on the ground that the anonymity of complainants or informers should be preserved had no application in the present case, where the complainant himself was seeking the documents. He submitted that the authorities demonstrated that the learned High Court judge in the present case had adopted the correct approach in examining the documents and coming to a conclusion as to whether the board were justified in claiming that they were of a confidential nature and should be withheld from production on that ground. He submitted that there was no substance in the contention that either complainants would be deterred in the future from making complaints or that garda officers would be reluctant to co-operate if an order for discovery was made in the present case. Such an order could only be made where, as here, the judge had inspected the relevant documents and come to a conclusion that they were not of such a nature as to require their protection from disclosure.
The applicable law
The 1986 Act was enacted, according to its long title,
to provide for a system of investigation and adjudication of complaints made by the public about the conduct of members of the Garda Síochána (other than the Commissioner of the Garda Síochána) ….
Under the machinery established by the Act, a complaint as to the conduct of a member of the garda may be made by a member of the public either directly to the gardaí or to the board. Where the latter course is adopted and the chief executive of the board is satisfied that the complaint is admissible (as to which there are conditions prescribed by the Act), he must notify the Commissioner of An Garda Síochána. Unless the complaint is considered by both the commissioner and the board to be suitable for resolution in an informal manner, the commissioner must appoint a member of the garda of a specified rank to investigate the complaint. The investigating officer is in due course required to present a report to the chief executive and the investigation itself is to be supervised by the board. If the board, having considered the report, is of the opinion that the complaint concerned is admissible and may constitute an offence committed by the member concerned, it must refer the matter to the Director of Public Prosecutions. If it does not come within that category and is not of a minor nature (in which case it may be dealt with by the commissioner by way of ‘advice, admonition or warning’), the board must refer the matter to a tribunal, the composition, powers and functions of which are specified in detail in the Act. There is also provision for an appeal from the findings of such a tribunal to a board established under the Act called ‘the Garda Síochána Complaints Appeal Board’.
S. 12 of the Act provides that:
(1) A person shall not disclose confidential information obtained by him while performing functions as a member of the board, a tribunal or the appeal board, or as a member of the staff of the board, unless he is duly authorised to do so.
(2) In this section—
‘confidential’ means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description;
‘duly authorised’ means in the case of a member of the appeal board authorised by the appeal board and, in any other case, authorised by the board.
(3) A person who contravenes subs. (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £700 or to imprisonment for a term not exceeding six months or to both.
The importance of the Act hardly requires emphasis. The Garda Síochána, in common with police forces in every ordered society, is entrusted with wide powers to arrest and detain citizens who are suspected of being engaged in crime. Those powers are manifestly capable of serious abuse and, in recent decades, the courts have repeatedly expressed their concern that the constitutional rights of persons in custody should be respected. Not every encounter between the citizens and the gardaí, however, whether or not it culminates in an arrest and detention, is followed by subsequent criminal proceedings. Even if those proceedings are instituted, it cannot be said with certainty that, in every such case, misconduct by the gardaí will be the subject of a full investigation, no matter how vigilant the courts are to uphold the constitutional rights of the accused.
The establishment of procedures designed to ensure that complaints of misconduct against members of the garda may be the subject of an investigation under the supervision of an independent body is not only of value in protecting the rights of individual citizens who complain of misconduct. It can also play an important part in maintaining and enhancing the confidence of the public in the Garda Síochána.
I have laid stress on what seem to me to be the policy considerations underlying the 1986 Act at the outset, since they must be given due weight in considering the claim made by the board in these proceedings that they should not be required to disclose the documents relating to the plaintiff’s complaint. As I have already noted, the chief executive of the board has expressed concern that the efficacy of the continuing work of the board will be affected if members of the public and of the Garda Síochána cannot be assured of the confidentiality of statements made by them to the board.
The principles of law applicable to a case of this nature were summarised by Finlay CJ in Ambiorix Ltd v. Minister for the Environment (No. 1) at pp. 283/212:
(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.
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.
The observations of the learned Chief Justice in the last three subparagraphs were clearly directed to a claim of what at one stage was known as ‘executive privilege’: a fortiori, they apply to a claim by a body such as the board. Mr MacMenamin indeed did not seek to rely on ‘executive privilege’ or any analogous form of privilege as protecting the documents in this case from production. He did, however, submit that the documents enjoyed a statutory protection from disclosure by virtue of s. 12 and, in any event, belonged to a category of documents which should be treated as privileged (to use again the words of the Chief Justice) ‘merely on the basis of a description of their nature and contents ….’
Since the decision in Murphy v. Dublin Corporation [1972] IR 215, our law has taken a different course from English law in declining to recognise any right of the executive to prevent the judicial arm of government from examining particular documents or categories of documents in order to ascertain whether they should be admitted in evidence in civil or criminal proceedings. While it is always open to the executive, as it is to any citizen, to claim that specific documents are privileged, if that claim is opposed, the issue as to whether the documents must be produced can only be decided by the court having seisin of the proceedings. Neither a minister of state nor any other person in the public service can prevent the court from embarking on the enquiry by certifying that, in his or her opinion, the public interest requires that the documents be not produced. To that general principle, the decision of this Court in Attorney General v. Hamilton (No. 1) [1993] 2 IR 250; [1993] ILRM 81 that a former minister giving evidence at a tribunal of inquiry could not be required to give evidence as to what was said at meetings of the government, offers an apparent rather than a real exception. The evidence was not being sought in the course of any proceedings in any court and, in any event, the immunity against disclosure rested on the particular constitutional position of the government.
However, the fact that the decision in civil or criminal proceedings before any court established under the Constitution as to whether documents should be discovered is exclusively an issue for determination by the judicial arm does not preclude the courts from identifying particular categories of evidence which, in general, will be regarded as privileged. In such cases, as has been frequently pointed out, the courts must balance the public interest in the production of documents which are relevant to the issues to be determined in the particular case against some other public interest which is invoked to justify their being withheld. Of the categories which have been recognised by the courts in Ireland as in other common law jurisdictions as in general protected against disclosure because of such a countervailing public interest, perhaps the most conspicuous is that embraced by legal professional privilege. In that case, it is another facet of the administration of justice — the importance of ensuring that a client’s confidences are fully respected — which justifies the exclusion. But, as Lord Hailsham of St Marylebone pointed out in D. v. NSPCC [1978] AC 171 at p. 230:
the categories of public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and social legislation develop.
Coming closer to the issues in this case, another countervailing public interest — in the detection and prevention of crime — has led the courts, since the decision of the English Court of Appeal in Marks v. Beyfus (1890) 25 QBD 494, to allow the anonymity of police informers to be preserved. The principle so established was extended in D. v. NSPCC to those who gave information about neglect or ill-treatment of children to a local authority or the NSPCC. In this country, in Director of Consumer of Affairs v. Sugar Distributors Ltd Costello J, as he then was, took the view that considerations of a similar nature applied to complaints made to the Director of Consumer Affairs and Fair Trade, saying (at pp. 228/399):
… The Oireachtas has conferred on the director important law enforcement functions. I am satisfied that it is in the public interest that the court should protect the effective functioning by the director of his statutory powers. I am further satisfied that to enable him to exercise his powers effectively he must be able to assure complainants that information given to him (and, indeed, in certain circumstances the names of complainants) will be treated in confidence and not disclosed as otherwise complaints may not be forthcoming and breaches of ministerial orders are likely to go undetected. The requisite protection should embrace all documents forwarded by a complainant with a complaint.
But the immunity granted cannot be an absolute one.
When a claim is made, as has been in this case, that it is not in the public interest that the 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.
In England, the question as to whether statements taken by the police in pursuance of a statutory police inquiry belonged to a privileged category of documents was considered by the Court of Appeal in Neilson v. Laugharne [1981] QB 736. The court was unanimously of the view that they were so privileged. In arriving at that conclusion, Oliver LJ referred to the decision of the House of Lords in R. v. Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388. In that case, a claim had been made that documents in the possession of the Gaming Board in respect of which the plaintiff in certain civil proceedings had served a witness summons were privileged. Upholding that claim, Lord Reid, having referred to the danger that the board could not adequately perform their duty unless they could preserve the confidentiality of communications to them concerning the character of applicants for licences, went on at p. 401:
It is possible that some documents coming to the board could be disclosed without fear of such consequences. But I would think it quite impracticable for the board or the court to be sure of this. So it appears to me that, if there is not to be very serious danger of the board being deprived of information essential for the proper performance of their difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant.
Oliver LJ adopted a similar approach to the statements to the police. He pointed out that police officers who are potential defendants, might be disinclined to provide statements which could subsequently be used as the basis of civil claims against them and that they might be unwilling to co-operate in assisting in inquiries into the conduct of their superiors if they know that the statements they have made will come to the knowledge of the officer under investigation. He also pointed to the position of relatives or neighbours of the complainant who might be unwilling to co-operate with investigations if they knew that statements which they made were liable to be disclosed to the complainant in any civil proceedings. As to the position of the complainant, Oliver LJ was of the view that, having made his complaint, he might refuse to give a statement to the investigating officer if he thought that it could be used against him in any civil proceedings he was contemplating. He summed up his views as follows at p. 754:
… There has to be borne in mind the immense burden on police authorities up and down the country if, in every case in which civil proceedings are instituted, every statement made on an inquiry under the section has to be scrutinised and, if appropriate, made the subject matter of a ‘contents’ claim [ i.e. as distinct from a class claim that the document is privileged without regard to its contents].
If, however, these documents have to be disclosed, the authorities would either have to face this burden or seek to procure, so far as possible, that investigating officers so conduct their enquiries as to ensure that the written record of statements made to them contains no material the disclosure of which might be injurious (for instance by containing sources of information). An inquiry cannot be properly or fully conducted if the investigating officer has constantly to be keeping an eye on the possible consequences of public disclosure in civil proceedings.
That case was decided shortly after the House of Lords in Burmah Oil Co. Ltd v. Governor and Company of the Bank of England [1980] AC 1090 had expressed the view that, in some cases at least, it was legitimate for a judge considering a claim that documents belonged to a privileged ‘class’ to examine the documents before coming to a conclusion as to whether they should be disclosed. Neither Lord Denning MR nor O’Connor LJ (the other members of the court) expressed any enthusiasm for that course in Neilson v. Laugharne [1981] QB 736 and it is not even referred to in the judgment of Oliver LJ.
The reluctance of courts in England to examine documents in respect of which a claim has been made by a public official that they belong to a class which has been recognised as privileged (usually because it is said that it was ‘necessary for the proper functioning of the public service’ that they be withheld) has not been shared by Irish courts. As was made clear in the decisions of this Court to which I have already referred, an issue as to whether a claim for privilege has been made out or as to whether the public interest involved in the production of evidence in judicial proceedings should prevail over the aspect of public interest involved in the confidentiality of documents pertaining to the exercise of the executive power of the State must be decided by the courts. On occasions these issues can be resolved by the judge by reference to the description of the documents contained in the affidavit of discovery. More frequently it will involve an examination of some or all of the disputed documents. In any event the procedure to be adopted must depend to some extent upon the circumstances of each case and the nature and extent of the disputed documentation.
It is also clear that the fact that documents were furnished in confidence to the party against whom the order of discovery is sought does not of itself make them privileged: see In re Kevin O’Kelly (1974) 108 ILTR 97; Burke v. Central Independent Television plc [1994] 2 IR 61; [1994] 2 ILRM 161 and Attorney General v. Mulholland [1963] 2 QB 477. It is, of course, the case that that principle has no application to claims of legal professional privilege and it is unnecessary to consider in this case whether, in particular circumstances, the court might refrain from requiring members of other professions to disclose confidential communications where it did not appear essential in the interests of justice in the particular case that they should be so disclosed.
In the present case, there must be weighed against the public interest in the disclosure of the documents relating to the complaint to the board, the public interest in ensuring that the statutory functions of the board are not frustrated. There may be cases — of which this is not one — in which documents relating to a complaint to a board are sought by a party to litigation other than the complainant. In such a case, depending entirely on the particular circumstances, the court might be justified in declining to allow the inspection of documents forwarded in confidence by a complainant to the chief executive or even the identity of a complainant. It may also be that, in such a case, the appropriate course for the judge to take might be that proposed by Costello J in Director of Consumer Affairs v. Sugar Distributors Ltd, i.e. of examining the documents in order to ascertain whether the interests of justice required the disclosure of the identity of the complainant and the documents forwarded by him in the circumstances of the particular case. Those considerations do not arise in the present case, where it is the complainant himself who seeks the production of the documents relating to his complaint.
There remains the question of a possible statutory immunity against disclosure. In O’Brien v. Ireland [1995] 1 IR 568, O’Hanlon J considered the effect of the following provision in the Diplomatic Relations and Immunities Act 1967:
The organisation [the United Nations Organisation] and its property and a person in relation to whom the convention applies and the property of such a person shall have and enjoy inviolability, exemptions, facilities, immunities, privileges and rights in such manner, to such extent and subject to such extent and subject to such limitations (including the waiver thereof) as are provided for in each case by the convention.
The convention in question provided that the archives of the United Nations, and all documents belonging to it or held by it should be ‘inviolable wherever located’. Similar provisions in the Defence Act 1954 and the rules of procedure made thereunder rendering inadmissible the proceedings of a court of inquiry under that code were also considered by O’Hanlon J in that case. Having cited the statement of the law by Finlay CJ in Ambiorix Ltd v. Minister for the Environment No. (1), and having referred to the earlier decision in Murphy v. Dublin Corporation [1972] IR 215, he said at p. 575:
I do not consider … that either decision was intended to convey that the power of the legislature to intervene and confer the privilege of exemption from production on specified categories of documentary or other evidence was curtailed or restricted in any way, save insofar as any legislation enacted must not conflict with the overriding provisions of the Constitution.
He accordingly concluded that the documents the possession of which was sought by the plaintiff in those proceedings were protected from disclosure by virtue of the statutory provisions to which I have referred and that there was no obligation on the court to examine the particular documents before ruling on the claim of privilege.
In an earlier decision, Cully v. Northern Bank Finance Corporation Ltd [1984] ILRM 683, O’Hanlon J held that s. 31 of the Central Bank Act 1942 — which required employees of the bank to take an oath not to disclose information obtained in the course of their duty, except in certain specified circumstances — constituted a form of statutory privilege which the courts were obliged to uphold.
A statutory provision somewhat similar to that considered by O’Hanlon J in O’Brien v. Ireland was the subject of P.B. v. A.L. [1996] 1 ILRM 154. S. 8 of 71the Adoption Act 1976 provides that:
A court shall not make an order under s. 22(5) of the Principal Act or an order for the discovery, inspection, production or copying of any book, document or record of the board (or of any extracts therefrom), or otherwise in relation to the giving or obtaining of information therefrom, unless it is satisfied that it is in the best interests of any child concerned to do so.
Costello P concluded that the effect of this provision was that documents to which it referred could only be made available by a special order of the court where the court was satisfied that the statutory privilege accorded to the documents should be withdrawn in the best interests of the child.
I have cited these statutory provisions in extenso, as they are in sharp contrast to s. 12 of the 1986 Act which is under consideration in this case. That provision does not purport to confer any form of statutory privilege or immunity from disclosure: it does no more than prohibit members of the board or its employees from disclosing information expressed to be confidential (or categories expressed to be such) to anyone else without the authority of the board. That is not in any sense a prohibition on the production to a court in the interests of justice of documents in the board’s possession which are relevant to proceedings before that court. If the Oireachtas had intended to confer a privilege or immunity on such documents, it would have used language similar to that contained in the other statutes to which I have referred.
I am, accordingly, satisfied that the documents which are sought in the present case do not come within any category of documents identified by the decisions of the courts as being privileged from production even without examination by the court. I am also satisfied that no such immunity from production is conferred by s. 12 of the 1986 Act.
It only remains to add that, as in any other application for discovery, the person or body against whom it is sought is not obliged to disclose the documents unless they are actually relevant to the issue in the proceedings in which discovery is sought and that the appropriate test for determining whether they are relevant is that laid down in Compagnie Financiere du Pacifique v. Peruvian Guano Co. and repeatedly invoked by our courts, i.e. that they contain information which may either directly or indirectly enable the party requiring the documents either to advance his own case or to damage the case of his adversary.
Conclusions
It follows from the legal principles which I have endeavoured to summarise in the previous section that the learned High Court judge in the present case was correct in not treating the documents relating to the plaintiff’s complaint as privileged by reason of their nature and, accordingly, in proceeding to examine them before deciding whether, in respect of any or all of them, the board’s claim to withhold them from inspection should be upheld. This Court was not invited to undertake any similar examination of the documents concerned, in the event of it being satisfied that he was entitled to examine the documents before ruling on the claim of privilege. As already noted, Barr J concluded that the documents in question were broadly similar to what one might find in the ‘book of evidence’ in a criminal trial on indictment and that there was nothing in any of the statements of a confidential nature or which suggested that the statements had been made on a confidential basis.
The learned High Court judge having applied the correct principles of law and having reached that conclusion as a result of his examination of the documents, was clearly correct in granting the order of discovery sought. I would, accordingly, dismiss the appeal and affirm the order of the High Court insofar as it ordered the board to make discovery on oath of the documents in their possession pertaining to the complaint made by the plaintiff on 22 February 1988.
Livingstone v Minister for Justice, Equality and Law Reform
, High Court, April 2, 2004
Judgment of Mr. Justice Murphy dated the 2nd day of April, 2004.
1. Notice of Motion
By notice of motion, the plaintiffs applied for an order directing the defendants to make discovery on oath of all documentation, computerised information, and photographic material relevant to the matters in question in the proceedings under nine categories in relation to the questions and arrest of the first named plaintiff and emotional suffering and breach duty towards all of the plaintiffs in 1992-3. A statement of claim of 6th December, 1999 and a defence dated 4th July, 2001 were duly filed. This notice of motion dated 26th November, 2003 was heard on 23rd January, 2004.
2. Statement of Claim
The statement of claim, distinguished between the claims in respect of the first named plaintiff and that in respect of all the plaintiffs.
The first named plaintiff claimed damages, including aggravated, exemplary and/or putative damages, for false imprisonment, abuse of the legal process, abuse of power and/or misfeasance of public office, conspiracy, conversion and detinue, slander and breach of his rights under Article 13 of the European Convention on Human Rights.
All of the plaintiffs claimed similar classes of damages for intentional and/or negligent infliction of emotional suffering, negligence, breach of duty, and/or breach of statutory duty and breach of their constitutional rights.
On the 7th December, 1992, the first named plaintiff discovered his wife lying bound, gagged and fatally injured, having been badly beaten and having received a gunshot wound to the head. He immediately contacted the Garda Síochána. He made available to them a list of all firearms he had in his collection and made a voluntary statement. He has maintained that he was totally innocent of and had no part whatsoever in the brutal murder of his wife.
He pleaded that the Gardaí had been grossly abusive and insulting towards the second named plaintiff, his daughter, who was pregnant. The words complained of were defamatory and were calculated to impute that the first named plaintiff was guilty of offences punishable by imprisonment.
The first named plaintiff pleaded that his reputation was seriously damaged. He was arrested on the 3rd March, 1993, led out of his home in handcuffs in full view of his neighbours at 7.30 a.m. The Garda Press Office issued statements and press releases to the media to the effect, inter alia, that a man in his mid-fifties had been arrested in connection with the murder. During the course of interviews certain statements were made to him. He was released at midnight on the 4th March, 1993. The manner in which he was arrested and detained constituted an intentional infliction of emotional suffering and was calculated to break him psychologically and caused him grave emotional distress. It was in breach of his constitutional rights and his rights under the European Convention. The matters were pre-planned, thereby constituting a conspiracy. Privileged communications between him and his solicitor were removed by the Gardaí.
The plaintiffs allege that the first and second named defendants were guilty of negligence and breach of duty and/or breach of statutory duty in or about the management of the investigation into the murder of the plaintiff’s wife in proceeding from the outset on the basis that the first named plaintiff was responsible when they knew, or ought to have known, (had proper investigation and/or examination been carried out at the relevant time) that it was not reasonable to do so but rather that he should be eliminated as a suspect. In so proceeding, they thereby failed and neglected to take such steps and/or carry out such procedures, steps and investigations as ought properly to have been taken or carried out in all the circumstances. In stating to the third named plaintiff that they “had the right man”, which was defamatory and a deliberate and malicious attempt to falsely convey that the first named plaintiff was responsible for the murder of the third named plaintiff’s mother, it was calculated to cause, and did so cause in the third named plaintiff, severe emotional distress and suffering.
3. Defence
A defence was delivered on the 4th July, 2001, following a notice of motion for judgment in default of defence. The defence admitted some matters awaited proof in relation to others and denied particular allegations in respect of the behaviour of members of the Garda Síochána on the 29th December, 1992.
It was denied that the alleged innocence of the first named plaintiff, or his having no part in the murder of his wife, were facts that ought reasonably be known to the Gardaí or ought to have been ascertained by them shortly after they commenced their investigation. The Gardaí regarded the first named plaintiff as a suspect in their inquiries into the identity of the person responsible for the death of his wife. That belief was a reasonable one and was based on reasonable grounds.
It was denied that the Garda Press Office issued statements and press releases as alleged or at all. It was denied that members of the Gardaí uttered any of the words set forth in paragraph 20(a) 2(h) of the statement of claim; that Detective Garda Clinton produced photographs of the deceased or that Colonel Bernard Howard visited and was told by the Gardaí that they were prepared to release the first named plaintiff only in the absence of members of the press.
All further matters were denied in relation to the alleged infringement of the plaintiff’s rights.
The pleadings having been closed by that defence dated the 4th July, 2001, a note of intention to proceed was filed on the 6th March, 2003, followed by the present motion filed on the 26th November, 2003.
4. Grounding Affidavit
Gerard Charlton, solicitor for the plaintiffs listed the reasons why each of the nine categories of discovery were relevant and necessary to assist the plaintiffs in establishing the contentions outlined in the statement of claim. Voluntary discovery had been sought by letter dated the 11th June, 2003. Mr. Charlton averred that no co-operation by way of voluntary discovery was forthcoming within the time prescribed by that letter and a number of reminders were sent.
Reasons were given why each category of documents (appended hereto) was required to be discovered. It was verified that the discovery was necessary for disposing fairly of the cause.
5. Replying affidavit
Detective Superintendent John Gallagher of the National Bureau of Criminal Investigation, in his affidavit sworn the 21st January, 2004, regarded the letter requesting, discovery in such wide and sweeping terms, as a trawling exercise as opposed to information relevant or necessary to the issues between the parties. Such request would amount to thousands of pages involving significant cataloguing and would involve the defendants in significant costs and resources. It was not necessary for fairly disposing of the proceedings and was largely not relevant nor in the public interest.
The public interest required the upholding of the confidentiality of such communications and the confidential nature of garda investigations. Detective Inspector Gallagher averred that it is in the public interest in the detection and prosecution of crime that discovery of such documents should not be allowed. The investigation into the death of the victim had not concluded and would remain open indefinitely. The reference to discovery in relation to persons who, in the opinion of the Gardaí, have been or could be involved in criminal and other activities would impinge on their good name if discovery in relation thereto were made.
6. Right to Discovery
The principle underlying the right to discovery is that all relevant evidence is not only admissible but is also compellable. Litigants must have an opportunity to be heard to put forward arguments and to place all evidence relative to their claims before the court. Arguments without facts are just as sterile as arguments without legal authority. Lord Hailsham maintained that
‘In all cases before them, the courts should insist on parties and witnesses disclosing the truth, the whole truth and nothing but the truth, where this would assist the decision of the matter in dispute (D. v. N.S.P.C.C. (1977) 1 All E.R. 589 at 600).”
Fennell, The Law of Evidence in Ireland (2nd Edition, 2003) refers to a private interest and a public interest in the disclosure of all relevant evidence. The former, she says, is the function of the litigant’s entitlement to prosecute his case, the latter is informed by the public interest in promoting an effective and fair system of justice.
Article 6 of Bunreacht na hÉireann commits the administration of justice solely to the judiciary in the exercise of their constitutional prerogatives. On the basis of the constitutional principle of the separation of powers it falls to the judiciary to decide if the public interest is best served by the production or non-production of documents in the possession or power of the public service. The Supreme Court in Murphy v. Dublin Corporation [1972] I.R. 215 held that any conflict between the public interest in the production of evidence and the public interest in the confidentiality of documents relating to the executive power fall to be decided by the courts.
A balance must be struck between the public interest in the proper administration of justice by making all relevant material available to litigants, and the public interest in not harming society as a whole by releasing highly confidential State information in respect of which public interest immunity is claimed. Each case must be taken on its own merits, and the balancing exercise carried out anew, because it is not only the circumstances in which the document in question came to be produced that may vary from case to case, and the facts of each case to which that document is relevant, but also the need in a given case for the particular document will depend on the other evidence potentially available from other sources.
In Ambiorix Ltd and Others v. Minister for the Environment and Others [1992] I.R. 277 the Supreme Court held that the law relating to executive privilege was correctly stated in Murphy v. Dublin Corporation [1972] I.R. 215.
The essential limitation discovery is that of relevance. The Supreme Court refused discovery of documents in Burke v. Central Independent Television [1994] 2 I.L.R.M. 161, where the claim was for damages for libel allegedly published by the
defendant in a television programme purporting to deal with the activities of a subversive organisation. The basis of the refusal was the constitutional right of individual citizens to the protection of their life and their bodily integrity which must, of necessity, take significant precedence over a right to the protection and vindication of the plaintiff’s good name. O’Flaherty J. made the following observations:
“(1) It was neither permissible nor possible for the court at this stage to reach any conclusion as to the truth of the assertions which had been made. The decision of the court had to be based on the assumption that there might be a risk to the citizens who were identified in the relevant documents arising from the communication of those documents to the plaintiffs. Equally the court also had to make the assumption that the plaintiffs were in a position to establish that some or all of the accusations made against them were false and that their capacity to do so, and thereby to protect and vindicate their good name, might be imperilled by the exclusion from discovery and proof in evidence of the documents in respect of which the defendant claimed immunity.
(2) The constitutional rights to life and bodily integrity of necessity took precedence over the right to the protection and vindication of one’s good name and the right to have full and untrammelled resort to the courts. (Italics supplied).
(3) The making of an order of discovery on terms that only the lawyers acting for the plaintiffs would have access to the documents was not a procedure which could be adopted by the court. In order to avoid a possible risk to citizens, the documents had to be kept from communication to the plaintiffs and from admission in evidence in a public court. If the plaintiffs’ lawyers had access to the documents, they might find them to have the potential to be significant and weighty tools in relation to the cross-examination of witnesses called by the defendant, but find themselves unable to use the documents or explain their failure to do so to their own clients. This would constitute an undesirable breach of the duty which counsel owe to their clients and a breach of the proper trust which should exist between a lawyer and a client.
(4) It would not be consistent with the requirements of justice to make an order merely providing for immunity against the discovery or proof in evidence of the documents.”
The ultimate decision in relation to the issue of disclosure or non-disclosure of documentation and proceedings before the courts must lie with the courts themselves, as was emphasised by the Supreme Court in Murphy v. Corporation of Dublin [1972] I.R. 215 and Ambiorax Ltd. v. Minister for the Environment [1992] 1 I.R. 272.
O’Hanlon J., in O’Brien v. Ireland, Attorney General and Minister for Defence (High Court, Unreported, 26th August, 1994) examined the aforementioned judgments and noted that the statement of leaving it to the ultimate decision of the courts was expressed in absolute terms. He did not consider:
“that either decision was intended to convey that the power of the legislature to intervene and confer the privilege of exemption from production and specified conferring of a document or other evidence was curtailed or restricted in any way, save insofar as any legislation enacted must not conflict with the overriding provisions of the Constitution.”
Having regard to statutory privilege and privilege conferred by reason of an oath of secrecy in relation to banking matters, it appeared to him that:
“That a complete prohibition on disclosure exists in such cases without the courts being left with any scope to decide where necessary between conflicting claims based on the public interest between compelling production of documents and exempting them from production.”
In A.G. v. (Beef Tribunal) [1993] I.L.R.M. 82, the Supreme Court considered that privilege from disclosure of contents and details of discussion at meetings of the Government, derived, of necessity, from the Constitution.
In Goodman International v. Hamilton (No. 3) [1993] 3 I.R. 320, the High Court (Geoghegan J.), having referred to Murphy and Ambiorax stated:
“The common factor in these cases was a rejection of any kind of class or category privilege. Underlying them is the public interest in the administration of justice. The exclusion of admissible and relevant evidence is in general contrary to that public interest. It is for the courts to decide on the merits of appeal privilege in any particular case. But in no Irish case has it ever been held that there are no circumstances where the general public’s interest in the non-exclusion of admissible and relevant evidence cannot be overridden by a conflicting public interest in a particular case in favour of non-disclosure.” (at 325)
In the same year, both public interest and legal professional privilege were examined in Breathnach v. Ireland (No. 3) [1993] 2 I.R. 458. The plaintiff claimed damages for assault and battery and false imprisonment. He had been tried and convicted in the Special Criminal Court. His appeal to the Supreme Court was upheld and he sued the State and others for, inter alia, damages for false imprisonment and for failure to vindicate his constitutional right.
In the course of the civil action, the plaintiff brought a motion for discovery pursuant to Order 31, rule 29 of the Rules of the Superior Courts, 1986, against the D.P.P. who was a notice party to the proceedings. The application was for discovery of all records relating to his conviction which passed between certain of the defendants, being members of the Garda Síochána and other Gardaí, which were in the power or possession of the D.P.P.
Privilege was claimed for certain documents which the court rejected on the grounds that as a class they were not immune from discovery. Privilege was also claimed for other documents, some of which had been assembled as part of the original investigation of the alleged offence in the criminal case, and also for a report sent by an investigating garda to the D.P.P. seeking his direction as to whether criminal prosecution should be brought against the plaintiff. The grounds relied upon in claiming privilege were:
• That the documents had been prepared by Gardai in the belief that they would remain confidential as this was necessary if the D.P.P. were to effectively carry out the statutory requirements of his office;
• That the documents had come into existence in contemplation of litigation.
In considering his approach to the case, Keane J., at 469-70, said that, the High Court ordered the D.P.P. to discover “all records relating to communications between (members of the Gardaí) and the D.P.P.
“The public interest and the prevention and prosecution of crime must be put in the scales on the one side. It is only when the public interest outweighs the second public interest that an inspection should be undertaken or disclosure should be ordered. In considering the first public interest, it is necessary to determine to what extent that, if any, the relevant documents may advance the plaintiff’s case or damage the defendant’s case or fairly lead to an enquiry which may have either of those consequences. In the case of the second public interest, the various factors set out by Mr. Liddy (of the D.P.P.’s office) must be given due weight. Again, as has been pointed out in the earlier decisions, there may be documents, the very nature of which is such that inspection is not necessary to determine on which side the scales come down. Thus, information supplied in confidence to the Gardaí should not in general be disclosed, at least not in cases like the present, where the innocence of the accused person is not in issue, and authorities to that effect, notably Marks v. Beyfus (1890) 25 Q.B.D. 494, remain unaffected by the more recent decisions, as was made clear by Costello J. in Director of Consumer Affairs v. Sugar Distributors Ltd. [1991] 1 I.R. 225. Again, there may be material the disclosure of which would be of assistance to criminals by revealing methods of detection or combating crime, a consideration of particular importance today when criminal activity tends to be highly organised and professional. There may be cases involving the security of the State, where even disclosure of the existence of documents should not be allowed. None of those factors – and there may, of course, well be others which have not occurred to me – which would remove the necessity of even inspecting the documents is present in this case.
. . . The burden of satisfying the court that it should not proceed with inspection should lie upon the person seeking to withhold the document.” (italics supplied)
In Gormley v. Ireland [1993] 2 I.R. 75, where the plaintiff had been interned in 1957 under the Offences Against the State Act, claimed a salary reflective of his age when his suspension was lifted. He sought discovery. The defendants argued that the documents would be contrary to public policy and national security. Murphy J. held:
“. . . I would not go so far as to say that all the documents in respect of which executive privilege is claimed would involve national security. On the other hand there are unquestionably confidential, sensitive documents recording for the greater part submissions and advices by senior civil servants to ministers and indeed to the Government. It is in the public interest that communications of this nature should be made on the basis that they would not be disclosed in legal proceedings unless the court is satisfied that the public interest in this regard is outweighed by the conflicting interest of the litigant to have access to such documents as may be necessary to enable him to prosecute fairly and properly his action in the court set up under the Constitution. In attempting to balance these conflicting claims in the light of the issues raised on the pleadings, it seems to me that, notwithstanding the executive privilege attaching to all of these documents and those which set out the Government policy in relation to an undertaking being required to be given by a civil servant who has been detained under the Offences Against the State Act, 1939, is a condition of restoration to duty should be disclosed. In addition, documentation dealing specifically with the alleged refusal of the plaintiff to give such undertaking should likewise be disclosed.” (italics supplied)
Other documentation which comprises largely of correspondence with the Gardaí, it was held, would be properly treated as highly confidential material, the disclosure of which might be significantly detrimental to the public interest. The court stressed that, in relation to documents which were to be disclosed and inspected, they were to be made available for the proper processing of the litigation and not for any other purpose. They were to be made available to the solicitor on behalf of the plaintiff, on the undertaking of the solicitor to provide copies of such documents to counsel briefed by him but not to permit those documents to be inspected by any other person.
In Skeffington v. Rooney [1994] 1 I.R. 480, the plaintiff sought discovery of documents containing statements collected by the Garda Síochána Complaints Board in the course of an investigation following allegations by the plaintiff that the defendants, members of the Gardaí, had assaulted him. Barr J., at 486, felt that, as the complainant was the one seeking discovery and all statements were in nature broadly similar to those in the book of evidence in a criminal trial, and there was nothing to suggest they were made on a confidential basis, disclosure should be made.
A distinction can be made between civil and criminal proceedings where the desirability of protecting the confidentiality of documents may be of vastly greater significance in matters of a criminal nature. In Breathnach, Keane J. pointed out the merits of applying different considerations to communications between Gardaí and the D.P.P., where the public interest in the prevention and prosecution of crime “must be given due weight”.
After alluding to the judgment of Finlay J. in Smurfit Paribas Bank Ltd. v. A.A. Export Finance Ltd. [1990] 1 I.R. 469, Keane J. held that privilege from disclosure of documents made in contemplation of litigation did not extend to documents submitted by an investigating garda to the D.P.P. for the purposes of obtaining a decision whether or not a prosecution should be obtained. He did grant privilege to a document which consisted of legal advice from a legal assistant to the D.P.P. and also to directions issued by the Director in relation to charges subsequently brought against the accused.
In summary, there does not appear to be a blanket ban against making an order for discovery where a litigant seeks his or her Garda file or documents relating to a criminal investigation. Police communications are not, as a class, privileged. However, the case law indicates that each case will be decided on its own facts.
In Doyle v. Garda Commissioner [1999] 1 IR 249 (1998) 2 I.L.R.M. 523, the plaintiff complained to the European Commission on Human Rights that the police force in Northern Ireland had failed to investigate properly the car bomb explosions which had occurred in Dublin and Monaghan in 1974. He issued a plenary summons seeking discovery of all documentation in the possession of the Garda Síochána concerning their investigation into the bombings. His daughter and his infant grand daughters were three of the innocent victims. Both the High Court, and on appeal, the Supreme Court, dismissed the application. The Supreme Court (O’Flaherty, Denham, Barrington, Keane and Murphy JJ.) held that the court retained the jurisdiction to make an order for sole discovery. This jurisdiction was one which should be exercised sparingly, being reserved mainly for cases where an applicant had established a wrongdoing but was unable to identify the wrongdoers. It could only proceed on the basis of evidence or agreed facts. It was not equivalent to an interlocutory motion for discovery and could not, therefore, be grounded on hearsay or assertion. This can have no application to the present case.
7. Decision of the Court
While there would appear to be a detailed itemisation of documents within each category it is not clear whether and to what extent these are relevant. While the totality of documents in an incident room may be relevant to a criminal prosecution it does not follow, despite the extensive claims made by the plaintiffs in this case, that those documents are relevant in a civil claim.
Neither the plaintiffs nor the court can review a police investigation which is an executive function other than by way of judicial review.
Superintendent Gallagher claim confidentiality and public interest immunity. The investigation has not concluded.
The present application arises in the context of a civil claim. There is no duty such as there is on the prosecution to proffer to make available all material evidence to a defendant. While Discovery is not available in criminal proceedings, People (D.P.P.) v. Sweeney (Supreme Court, unreported, 9th October, 2001) a plaintiff in a civil matter is entitled to apply for an order pursuant to Order 31 rule 12 by specifying the precise categories of documents in respect of which discovery is sought. An applicant must verify that such discovery is necessary for disposing fairly of the cause or matter or for saving costs and must furnish the reasons why each category of documents is required to be discovered.
Subject to this, the plaintiffs have a right to discovery of documents relevant to their claim. The court must balance that right with the public interest in not disclosing documents in respect of which public interest immunity and privilege is claimed.
The following principles emerge from the case law referred to above.
The court should assess relevant documents in respect of which public interest immunity executive privilege is claimed.
Information supplied in confidence to the Gardaí should not in general be disclosed.
Any material the disclosure of which would be of assistance to criminals by revealing method of detention or combating crime should not be disclosed.
Other documentation in respect of which public interest or executive privilege is not claimed but which are considered to be privileged should be made available to the plaintiffs solicitors on the solicitors undertaking to provide copies to counsel briefed but not to permit these documents to be inspected by any other person and to return originals or copies to the Gardaí on the conclusion of the litigation.
The court must be aware of the potential of the disclosure of the documents in categories 1 to 4 hampering the criminal investigation into the murder of Mrs. Livingstone and the possible prejudice of a prosecution.
According in relation to categories 1 to 4, which range from the generality of documents held to a wide range of particulars from the date of death of Mrs. Livingstone to the arrest of the applicant, the court should assess their relevance.
Council should agree and net the issues for the court having regard to relevance practicality and costs.
Category 5 relates to media releases and briefings. The defendants have indicated that they consent to an order for discovery within this category under terms limited as follows:
All documentation relating to any media releases and any media briefings made by or on behalf of An Garda Síochána concerning or which could be perceived as referring to any of the plaintiffs.
Category 6 comprises:
All material relating to any media releases and briefings to include copies thereof, in particular with regard to the episode of the RTE programme “Prime Time” and all instructions and directions given in relation thereto, to include for the avoidance of doubt, all diary entries, notes, memoranda, correspondence or communications whatever, whether between members of An Garda Síochána in relation thereto, or between members of An Garda Síochána and RTE in relation thereto, or between members of An Garda Síochána and/or RTE and members of the public in relation thereto.
Category 6 is unduly extensive, it refers to the broadcast following on the subsequent investigation into the murder, carried out by the second Garda investigation team. It would seem sufficient that it should be limited to category 5; all media releases and briefings between members of the Gardaí and the media. There are no reasons given as to why the discovery should be so extensive as to include anything further.
The applicant referred to his public exoneration and requited documents which would “show the basis for the conclusions reached by the second investigation team as distinct from the manner in which the first investigation team conducted themselves and may assist in establishing the plaintiff’s contention that the first team acted without due care and should have eliminated the first named plaintiff as a suspect in all the circumstances.” It seems that these documents, if they exist, fall within the category of public interest immunity.
Category 7 is all or any custody records in respect of the first named plaintiff.
Category 8 comprises copies of all documentation removed from the first named plaintiff’s home or his car or that of Grace Livingstone and/or from his place of business, to include any communications between himself and his solicitor, together with all or any inventory of all items whatsoever removed from the home and place of work of the first named plaintiff.
Category 9 relates to matters which were sent in contemplation of litigation and would seem to me to be clearly privileged. It does not seem that there is any necessity to itemise these in an affidavit of discovery.
The defendants also consent to discovery under categories 7 and 8 but object to category 9 by reason of the fact that it is not in the public interest in that it may contain vital information in relation to the weight to be attached to a particular witness or item of evidence between the Garda Síochána and the D.P.P. As the investigation remains open, such disclosure could hinder the investigation or subsequent prosecution. It is detrimental to the public interest in the administration of justice. Moreover, documentation sought under category 9 arises in the context of giving and/or receiving legal advice and/or privilege from disclosure.
The court will make an order for discovery of all documents relating to any media releases and media briefings made by or on behalf of An Garda Síochána concerning or which could be perceived as referring to any of the plaintiffs (category 5), discovery in respect of category 6, and discovery in relation to categories 7 and 8.
Indeed, there is every good reason why the defendants, must establish in the relevance of documents with the advice of their legal team, cannot make such preliminary determination, even in a broad sense. The defendants have made such a determination with regard to categories 5, 7 and 8.
APPENDIX
CATEGORIES OF DOCUMENTS
1. The Garda Investigation file or files into the murder of Grace Livingstone to include all records, notes and memoranda, statements, howsoever arising, correspondence, electronic material, films, photographs, maps and/or results of any examinations and/or reconstructions and other such material generated in relation thereto to encompass, for the avoidance of doubt, all or any such files compiled and brought into existence by both the First and Second Investigation teams appointed in respect of the murder of Grace Livingstone.
2. In particular, but without prejudice to the generality of the foregoing:-
(a) All or any reports of members of An Garda Síochána involved in and/or relating to the first investigation into the murder of Grace Livingstone together with copies of all material referred to therein;
(b) All or any reports of members of An Garda Síochána involved in or relating to the second investigation into the murder of Grace Livingstone together with copies of all material referred to therein.
(c) The report or reports compiled by Senior Garda Officials with regard to an investigation into the murder of Grace Livingstone to include, in particular the report or reports of Chief Superintendent Kevin Carty (as he was, now Assistant Commissioner) and Superintendent Tom Connolly together with copies of all material therein referred to.
(d) All material generated by the Gardaí in relation to a meeting between Chief Superintendent Culhane and his assistant and the first named Plaintiff and his solicitor on the 19th day of August 1993 at Santry Garda Station.
(e) All reports, statements, notes memoranda, correspondence, electronic material, film, photographs, maps and/or results and other such material generated by:
a. The Ballistics Section
b. The Forensic Science Laboratory;
c. Fingerprints Section in relation to all the tape which bound the victim, Grace Livingstone, or to the firearm used in her murder,
d. All such material generated by the Pathologist Professor Harbison and his staff or any other pathologist and their staff involved in the investigation into the murder of Grace Livingstone.
e. All such material generated as a result of any examination of or carried out at 37 The Moorings, Malahide in the County of Dublin to include any reconstruction carried out thereat.
(f) The Jobs Book in relation to any investigation into the murder of Grace Livingstone.
(g) Notes and/or reports or other material of all collators generated during the course of all or any investigations into the murder of Grace Livingstone.
(h) All reports from Dr. Moodley and all attendances by members of An Garda Síochána on him to include all notebook or diary entries, memoranda or any such material.
(i) Copies of all notes, notebook and/or diary entries of all members’ interviews with all persons interviewed in connection with any investigation into the murder of Grace Livingstone.
(j) Copies of all statements taken during the course of the investigations
aforesaid together with the index books in relation thereto.
3. In particular with regard to the two foregoing paragraphs and for the avoidance of doubt, copies of
(a) All statements taken from any of the Plaintiffs in connection with the investigation or investigations together with all or any notes, diaries or notebook entries of members of An Garda Síochána relation thereto;
(b) All statements taken from or notes, diary or notebook entries with regard to any interview with Colonel Bernard Howard;
(c) All statements taken from or notes or diary or notebook entries or details of any criminal records in the State or abroad in respect of interviews with any door to door collectors in the area of the Plaintiff’s home on the day of or the week preceding the murder including in particular collectors for the Irish Epilepsy Association at the relevant time;
(d) Reports, statements, notes, diary or notebook entries of the first two members of An Garda Síochána to arrive at the scene of the murder on the 7th December, 1992, namely Garda F. Gunne and Garda Catherine Moran;
(e) Any statement, notes, diary or notebook entries in relation to any interview with Mrs. Margaret Murphy who arrived at the scene on the night of the murder;
(f) Statement of Mrs. Watchthorn or any notes, diary or notebook entries in relation to any interview or interviews by members of An Garda Síochána of her:
(g) Statements of all witnesses who heard a loud noise on the afternoon of the murder together with the notes of any Gardaí on each interview or diary entries in relation thereto;
(h) Statement of Philip McGivney the landscape gardener or tree surgeon who was in The Moorings on the afternoon of the murder together with copies of all the notes of any Gardaí of any interviews or diary entries in relation thereto;
(i) Statements of the schoolgirls in respect of a young man whom they saw in The Moorings or its environs on the afternoon of the date of the murder together with the notes of all members of all interviews or the diary entries of all members in respect of the said schoolgirls.
(j) All reports on the investigations of suspicious persons or strangers seen in the vicinity of the crime on that day.
(k) Statement of the man in the car park who saw a youth approach his car which was of a reddish or orange colour and parked in the car park and drive same therefrom together with any attendances or memos or diary entries, with particular reference to the registration particularly of the car or of its description.
(l) Statement of the man who observed the youth driving on the public highway and at a roundabout and followed the car for a considerable distance together with any reports, maps or memos or diary entries in respect thereof;
(m) Statement of any other person who saw the youth driving the car whether on the road or at the roundabout together with any attendances or memos or diary entries.
(n) Copies of all material generated within or outside the State to trace or locate the said red or orange coloured car and copies of the results.
(o) Statement of Art O’Connor and/or of his wife together with copies of all interviews or memos or diary entries of any member of An Garda Síochána in respect thereof;
(p) Statements of persons at the Defendant’s place of employment at the Revenue Commissioners together with the notes and diary entries of all members in respect of such interviews or searches thereat.
(q) Copies of all (Garda questionnaires completed or incomplete, issued in respect of the murder, and any memoranda, interviews, responses or diary entries in respect of same
(r) All records whatever relating to the ambulance or emergency services at the scene of the murder of Grace Livingstone at Number 37 The Moorings, Malahide on the 7th December, 1992.
(s) All material generated by the Gardaí to trace or identify the source or manufacturer or vendor of the tape used to bind the victim Grace Livingstone.
(t) All material generated between the Gardaí and the first named Plaintiff’s employer in relation to the murder of Grace Livingstone.
4. All Garda Reports, notes, memoranda, correspondence or communications whatever in respect of any conferences relating to the investigation or investigations including any decision to arrest the first named Plaintiff, all or any directions or instructions issued with regard to his arrest on the 3rd day of March, 1993.
5. All documentation relating to any media releases and briefings to include copies thereof with regard to the investigation in the murder of Grace Livingstone together with all or any documentation relating to any instructions or directions given in relation to any press releases or briefings to include all diary entries or notes, memoranda, correspondence or communications whatever, whether electronic material or otherwise in respect thereof,
6. All material relating to any media releases and briefings to include copies thereof, in particular with regard to an episode of the R.T.E. programme “Prime Time” and all instructions and directions given in relation thereto, to include for the avoidance of doubt, all diary entries, notes, memoranda, correspondence of communications whatever, whether between members of An Garda Síochána in relation thereto, or between members of An Garda Síochána and R.T.E. in relation thereto or between members of the Garda Síochána and/or RTE and members of the public in relation thereto.
7. All or any custody records in respect of the first named Plaintiff.
8. Copies of all documentation removed from the first named Plaintiff’s home or his car or that of Grace Livingstone, and/or from his place of business to include any communications between himself and his solicitor together with all or any inventory of all items whatever removed from the home and place of work of the first named Plaintiff.
9. All or any reports, files, correspondence, communications, directions, attendances or diary entries whatever sent to the Director of Public Prosecutions in relation to any person or persons suspected of the murder of Grace Livingstone to include in particular any Garda report, file, correspondence or communication whatever passing to or from the Director of Public Prosecutions, his servants or agents, in relation to any of the Plaintiffs herein and, for the avoidance of doubt, all such similar material in relation to an intended prosecution of the first named Plaintiff for firearms related offences, the prosecution and the result thereof.
McLaughlin v Aviva Insurance (Europe) plc
[2011] IESC 42
Judgment delivered on the 15th day of November, 2011 by Denham C.J.
1. The Commissioner of An Garda Síochána, the notice party/appellant, referred to in this judgment as “the Commissioner”, claims privilege in respect of certain items/documents on this appeal.
2. Seamus McLaughlin, the plaintiff/respondent, referred to as “the plaintiff”, has brought proceedings seeking a declaration, inter alia, that Aviva Insurance (Europe) Public Limited Company, the defendant, is liable to indemnify the plaintiff in respect of loss and damage suffered by him arising out of a fire which occurred on the 1st February, 2009, on the premises known as “The Waterfront”, situate at James Street, Moville, Co. Donegal.
3. By notification dated the 22nd January, 2010, Aviva Insurance (Europe) Public Limited Company, the defendant/respondent, referred to as “the defendant”, refused to indemnify the plaintiff in respect of the insurance policy, on the grounds, amongst others, that it believed that the plaintiff was responsible for setting fire to the Waterfront on the 1st February, 2009. In the defence lodged on the 4th May, 2010, to the plaintiff’s claim, the defendant explained its refusal to indemnify the plaintiff, on the basis, inter alia, that the claim made by the plaintiff was fraudulent and/or that fraudulent means and devices were used by the plaintiff and/or his brother, Kevin McLaughlin, in an attempt to obtain a benefit under the policy. The defendant alleges that the plaintiff entered the premises with his brother, Kevin McLaughlin, at approximately 03.07a.m., on the morning of the 1st February, 2009, and shortly thereafter, one or both of them deliberately started the fire that damaged the premises.
4. This appeal arises in relation to a motion. On the 14th February, 2011, the Commissioner brought a notice of motion, dated the 13th September, 2010, before the High Court seeking an order that certain items were privileged and need not be discovered. The motion sought an order:-
“ […]
2.(i) Permitting An Garda Síochána to refuse consent to discovery of
(a) The second DVR recorder recovered from the premises known as the Waterfront on the 13th of February 2009.
(b) The forensic reports prepared by
(i) Data Clinic Limited in respect of the recovered CCTV recorders and footage
(ii) The forensic report prepared by Critical Processes in respect of samples taken by Dr. Ormsby in February 2009 from the site of the fire the subject matter of these proceedings;
on the basis that disclosure of same is privileged pursuant to Public Interest/InvestigativePrivilege.”
5. On the 14th February, 2011, the High Court (Commercial) (Kelly J.) ordered that the claim of public interest/investigative privilege sought by the Commissioner be disallowed. He also refused an application for a stay and ordered that the discovery originally directed on the 12th July, 2010, be made within twenty one days.
6. There is no formal record of the ex tempore judgment of the High Court. However, counsel’s note of the judgment states:-
“This case was commenced in the Commercial List on the 16th of March 2010. The circumstances of the case are also the subject matter of a police investigation. To date unfortunately no decision has been given concerning the outcome of this police investigation. One of the reasons given by the Commissioner in respect to his claim for privilege was to await the decision of the Director of Public Prosecutions. The Commissioner seeks to object to disclosure of two species of documents, one DVR recorder and two reports (being (a) a report prepared by the Data Clinic and (b) a forensic report prepared by Critical Processes). It is said that the documents ought not to be disclosed to the suspects of the investigation. The curious thing is that they were not generated by the Gardaí, they were given to the Gardaí. We are therefore in the curious position in circumstances where the documents over which privilege [is] claimed were not generated by the police.
Two authorities have been cited in support of the proposition Breathnach -v- Ireland No.3 and DPP -v- Corbett. In my view Breathnach on its facts has little or nothing to do with this case. None of these deals with the situation where an investigation is [on]going and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings.
The second element of the claim of privilege is more complex for technical reasons which I need not get into. These items are in the possession of the police and they are going to carry out the process known as “cannibalisation”. The Plaintiff wants to observe that process through a representative. There is no authority entitling a Court to impose this upon An Garda Síochána. As to the fruits of the cannibalisation process, both parties ought to have sight of same and if that constitutes a report they ought to have sight of such report and to be entitled to view the recording. It is said by the Commissioner that this should not happen until after the DPP has seen the recording. I have no idea how long the DPP will take to do this.
This Court has treated this Motion as a Motion for ordinary non-party Discovery. I am of the view that the appropriate Order to make in this case is to make no Order as to costs as the Application has not been successful.”
7. The Commissioner has appealed that decision to this Court. By notice of appeal it was stated that the Commissioner would rely on the following grounds:-
“(i) The learned Trial Judge erred in fact and in law in determining that the privilege of the nature asserted by the Commissioner could not and did not apply to the documents and items over which such privilege was asserted.
(ii) The learned Trial Judge erred in fact and in law in determining that as the documents and items at issue were not generated by the Commissioner no privilege of the type contended for by the Commissioner could be asserted in respect of same.
(iii) The learned Trial Judge erred in fact and in law in determining the public interest/investigative privilege did not apply to the subject documents and items in light of the fact that the subject documents or items were procured or identified and received from one of the parties to the civil proceedings.
(iv) The learned Trial Judge erred in law and in fact in failing to properly or adequately take into account the proper course of the criminal investigation identified by the Commissioner and by failing to properly or adequately consider the concern expressed by the Commissioner that disclosure of the forensic reports specified at paragraph A of the notice of motion dated the 13th of September 2010 could potentially disrupt the due and proper investigation of the crime suspected.
(v) The learned Trial judge erred in fact and in law by directing disclosure of the material (report or data) (obtained as a result of the process of cannibalisation of the DVR identified at paragraph A of the Notice of Motion dated the 13th of September 2010) after a period of 14 days had elapsed after cannibalisation of the said DVR on the grounds that same fails to respect the investigative/public interest privilege contended for by the Commissioner.
(vi) The learned Trial Judge erred in fact and in law in refusing to award the Commissioner the costs of the Application.”
Documents and items
8. The documents and items the subject of the appeal were described in the notice of motion dated the 13th September, 2010, which have been set out earlier in this judgment. However, I understand that both DVRs are in issue, and not just the second DVR recorder as described in the notice of motion.
9. The Commissioner sought an order that certain items were privileged and that discovery should be refused on the basis that disclosure of the documents and items is privileged pursuant to public interest/investigative privilege.
Submissions
10. Written submissions were filed on behalf of the Commissioner and the plaintiff. The Commissioner submitted that there are two competing aspects of the public interest being:-
(a) the public interest in the proper administration of justice; and
(b) the public interest in the detection, investigation and prosecution of suspected criminal offences.
It was submitted that the privilege claimed is not permanent, but to last only until the Director of Public Prosecutions decides that there will be no prosecution or a prosecution is directed, at which time the items will be in the Book of Evidence. The plaintiff submitted that the Commissioner, a non-party to these proceedings, cannot invoke privilege in circumstances where the defendant, its servants and agents, have been in possession of the privileged material for a period of up to a year and a half from the commencement of the criminal investigation and where it has already used that documentation to advance its defence of the proceedings.
Law
11. There is a public interest which arises in some cases whereby certain matters may be privileged and may not be produced in evidence. The decision as to whether evidence is privileged or not is a matter for the courts: Murphy v. Dublin Corporation [1972] 1 I.R. 215. There may be different aspects of the public interest. Walsh J. noted in Murphy v. Dublin Corporation at p. 233:-
“There may be occasions when the different aspects of the public interest ‘pull in contrary directions’—to use the words of Lord Morris of Borth-y-Gest in Conway v. Rimmer [1968] AC 910, 955. If the conflict arises during the exercise of the judicial power then, in my view, it is the judicial power which will decide which public interest shall prevail. This does not mean that the court will always decide that the interest of the litigant shall prevail.”
12. There is a public interest in criminal investigations carried out by An Garda Síochána. Lord Reid stated in Conway v. Rimmer [1968] AC 910 at p. 953 – 954:-
“The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy.”
I agree with the analysis that in general documents material to an ongoing criminal investigation by An Garda Síochána should not be required to be disclosed in civil proceedings. However, after the verdict in the criminal trial or after it has been decided not to prosecute, there is no need for the privilege.
13. It is an important part of an analysis of this type of privilege that it exists only for a limited time. Thus, it would apply only until the criminal trial is concluded or until the Director of Public Prosecutions has decided not to prosecute. It is not unusual that a civil trial awaits the conclusion of a criminal trial.
14. The special position of the Director of Public Prosecutions was referred to by Keane J. in Breathnach v. Ireland (No.3) [1993] 2 I.R. 458 at 471:-
“As has also been frequently pointed out, the privilege is that of the client and may only be waived by him. The position of the Director of Public Prosecutions is, of course, somewhat different: he does not stand in the relationship of “client” to any other lawyer. He is in a sense both lawyer and client, since he formulates the legal opinion on which the institution or non-institution of a prosecution is based and he then becomes one of the parties to the subsequent litigation. However, be that as it may, the public policy which protects from discovery communications in the first category undoubtedly applies equally to communications between the Director of Public Prosecutions and professional officers in his department, solicitors and counsel as to prosecutions by him which are in being or contemplated.”
In this instance, the privilege sought is different and is only for a limited time i.e. until the case is prosecuted or a decision is made not to prosecute in the criminal courts.
Decision
15. The items of which the Commissioner seeks to claim privilege are required for the purpose of civil proceedings between the plaintiff and the defendant and also for a criminal investigation. The Commissioner claims privilege pending the decision not to prosecute or pending the service of a Book of Evidence, which would contain the items.
16. There is a public interest privilege in documents which are a material part of a criminal investigation. There is a public interest privilege in documents created, sought, or obtained for, and relevant to, a criminal prosecution by a prosecutor.
17. The fact that the documents and/or items were not originally created by a prosecutor does not exclude them from privilege as there is a public interest privilege in documents and/or items which are a material part of a criminal investigation.
18. The onus to establish that the privilege lies upon the person seeking the privilege. In this case, the Commissioner carries the onus.
19. I am satisfied that it is established that the documents and items sought, being the two DVR recorders and the two forensic reports, are privileged. This privilege exists until the decision is made not to prosecute or until the decision is made to prosecute, when the matters will be disclosed in the Book of Evidence.
20. The fact that these documents and/or items were not originally created by An Garda Síochána does not prevent them attracting privilege. They are now material documents and items in a criminal investigation by An Garda Síochána and they attract privilege on the basis of public interest and investigative privilege.
21. The fact that the documents arose in civil proceedings does not mean that the privilege does not apply to them. They are now a material part of a criminal investigation and, as a consequence, privilege attaches to them.
22. On occasions, when considering a privileged document, the court may have to balance interests. However, the issue of balancing interests does not arise in this case.
23. Thus I would order that the items are privileged and may not be discovered until either the decision has been made to prosecute, when disclosure will be made in the Book of Evidence, or a decision is made not to prosecute, when the privilege ceases.
24. This case is decided upon its facts and circumstances. The issues raised are important and may arise for further consideration in another case, where there would be more elaborate argument and scrutiny than was available in both the High Court and in this Court in this case.
25. An additional issue arises in that the plaintiff seeks that his experts see the items before they are altered, and attend at the process by which they are “cannibalised”, and after. This is not an order that I would make. However, it does raise a degree of alarm that evidence may be destroyed. I draw attention to the possibility of difficulties arising if the experts of the plaintiff are excluded. However, that is a matter for the prosecutor.
26. In conclusion, for the reasons given, I would allow the appeal and order that there is a public interest privilege in the items and would therefore order that there be no discovery until the privilege has ceased to exist either by way of a decision not to prosecute, or by a decision to prosecute when the matters will be disclosed in the criminal proceedings.
Judgment delivered on the 15th day of November, 2011 by O’Donnell J.
1 I agree with the judgment of the Chief Justice but wish to add some observations in order to explain why I respectfully differ from Hardiman J. both as to the outcome of the case and as to its significance.
2 First, I do not regard the case as raising any particularly novel issue nor do I consider the judgment of Denham C.J. marks any departure in the law. Furthermore the case does not in my view raise the question as to whether public interest immunity requires that documents be withheld from their owner in civil proceedings. In this case the claim for discovery encompassed not just the video tape, but also, and perhaps more importantly from all points of view, the two expert forensic reports prepared for the insurers and which were their property and not the property of Mr McLaughlin. The case therefore raises the general issue as to the entitlement of the gardaí to withhold from disclosure in civil proceedings documentation which is bona fide required for the purposes of an ongoing investigation which may result in a criminal prosecution.
3 That issue, is one on which I regard the law as well settled and indeed encapsulated in that portion of the speech of Lord Reid in Conway v Rimmer [1968] AC 910, 953 referred to in both the judgments of my colleagues. The intervening period has not lessened the force and good sense of Lord Reid’s observations and if the matter has not been the subject of more extensive discussion, it is only in my view because it is regarded as well settled.
4 It does not make any difference in my view that the footage may be considered to be the property of Mr McLaughlin if it too was bona fide required for the purposes of the gardai’s investigation. It is very well established that the police can retain items against their true owner if they are required for the investigation and prosecution of criminal offences. In the landmark case of Dillon v O’Brien and Davis (1887) 20 L.R.Ir 300 it was held that it was a good defence to a claim for detinue by the owner of certain articles taken by the police at the time of the arrest, that they were required as evidence for a criminal prosecution. Relatively recently, in Dunne v DPP [2002] 2 IR 305, this Court approved a decision in Dillon v O’Brien and Davis and cited with approval the English cases of Chic Fashions (West Wales) v Jones [1968] 2 QB 299 and Ghani v Jones [1970] 1 QB 693. In the latter case, the Court held that material in the possession of a wholly innocent third party could be seized for evidential purposes and held for so long as was reasonable. On the decided cases I do not think it makes any difference to this principle whether or not a prosecution is in being. Clearly such a prosecution is not in being at the time of seizure and every item has to be seized for the purpose of an investigation before there can be any decision on a prosecution. If the gardaí can properly resist the proprietary claim of the true owner for the return of pieces of real evidence which are necessary for the purpose of the police investigation, it does not appear to me to be in any way controversial that they can also in an appropriate case, where it is demonstrated that it is necessary to do so, resist a claim for discovery in litigation in civil proceedings, at least until a prosecution is commenced or a decision is taken not to do so, or conceivably that a reasonable time has elapsed to allow such a decision to be made. In either case it is entirely conceivable that return of the item, or disclosure of the document may hamper the investigation. As the outcome of Ghani v Jones shows, the requirement of necessity furnishes considerable protection to the citizen from whom evidential material is received, or seized.
5 I do not see that this case raises any issue as to priority between civil and criminal proceedings. In this case the Commissioner does not seek a stay on the civil proceedings: he merely seeks to maintain a public interest immunity which it is arguably his duty to assert. As it happens that immunity is limited in time, and as a result the parties to the litigation have the choice whether to proceed without the material in the same way as a party might proceed having failed in the challenge to legal professional privilege, or they can wait until the issue of public interest immunity falls away either by the disclosure of the material in criminal proceedings, or by a decision not to prosecute.
6 Finally I should say that I do not consider that this is a claim for class privilege. The immunity or privilege is not claimed because the documents or items belong to a certain class of material. The claim made is in respect of the particular significance of this material to an ongoing investigation, and not because of any generic significance of CCTV footage or expert reports. The Court is free to inspect the items if it considers it either appropriate or necessary to do so, and is not bound to accept the Commissioner’s claim. However, the Courts have repeatedly made it clear that the fact that the court may inspect material does not mean that the court must do so to verify any claim for privilege, if the nature of the claim is obvious from the description of the document. Here there was no issue as to the documents in question, or indeed as to the Commissioner’s assertion that they were necessary for the purpose of criminal investigation. The only question was whether that raised a valid claim of immunity, and for the reasons set out by Denham C. J. I consider that it does. That was the issue before the High Court. I would hope that it will not be necessary to determine in this litigation whether a reasonable time has elapsed for the prosecution authorities to make a decision as to prosecution. If that issue is to arise it would require to be determined on the basis of evidence specifically directed to that issue. Indeed if this general issue were to arise for determination again it might benefit from more extensive citation of authority and consideration of principle than was possible in this case.
JUDGMENT of Mr. Justice Hardiman delivered the 15th day of November, 2011.
This appeal raises issues in relation to the law and practice of Discovery. It is the appeal of the Notice Party, the Commissioner of An Garda Síochána from the judgment and order of the High Court (Kelly J.) of the 14th February, 2011.
It must be said that this is a most unusual case. As far as my researches go it is unprecedented. Issues relating to Discovery have been endlessly litigated in recent years. A glance at the Table of Cases in the leading Irish text, Discovery and Disclosure by Abrahamson Dwyer and Fitzpatrick (Roundhall, Dublin, 2007) will amply illustrated this. But despite the thorough (many would say excessive) exploration of the area, this case turns up an entirely new point which may be summarised as follows:
“Can public interest privilege be used to withhold from a citizen discovery of film footage and equipment which is the citizen’s own property, which he voluntarily gave to investigators on the basis that it is now in the possession of the gardaí and that there may or may not be a prosecution to which it is relevant at some future time?”
The learned trial judge (Kelly J.) observed that:
“The curious thing is that they [the items of which discovery is sought] were not generated by the gardaí, they were given to the gardaí. We are therefore in the curious position in circumstances where the documents over which privilege is claimed were not generated by the police… None of these [the cases cited] deal with a situation where an investigation is ongoing and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings”.
Background facts.
The Plaintiff is a publican and nightclub owner who formerly carried on business in premises known as the Waterfront Bar and Restaurant in James Street, Moville, Co. Donegal. On the 1st February, 2009 the plaintiff’s premises and their contents were completely destroyed by fire.
On the following day, 2nd February, 2009, the plaintiff made a claim on foot of an insurance policy which he had taken out with the defendants in respect of the said premises and their contents. On the 22nd January, 2010, almost a year later, the defendant, Aviva, informed the plaintiff that it was refusing to indemnify him on the grounds that he was guilty of fraud and specifically that he had himself been physically involved in the starting of the fire which had destroyed the premises.
It is undisputed that in the days after the fire the defendant’s investigators attended on multiple occasions at the plaintiff’s premises and recovered and were given various contents and equipment including the CCTV surveillance system. This was the property of the plaintiff and was given by him to the investigators at their request. They later gave it to the gardaí. No-one disputes the relevance of the material nor that it is the plaintiff’s property.
The plaintiff commenced an action on the policy of insurance by plenary summons on the 24th January, 2010. He seeks a declaration that he is entitled to be indemnified in respect of the fire. His Statement of Claim was delivered on the 11th March, 2010. On the 22nd March 2010 the defendant had the proceedings entered into the High Court commercial list.
Later in 2010, the pleadings having closed, the plaintiff sought discovery from the defendants of various categories of document and issued a Notice of Motion in this regard which came before Mr. Justice Kelly in the commercial list. This occurred on the 12th July, 2010. On that date Mr. Justice Kelly directed that the defendant make discovery of:
(i) All CCTV video footage and the CCTV video monitoring surveillance system operating at the plaintiff’s premises at the time of the fire on the night of the fire including any compensate or edited tapes or DVR in respect of the fire;
(ii) Documents establishing and/or showing the results of any forensic examination carried out in the immediate aftermath of the fire by or on behalf of the defendants its servants or agents in relation to the plaintiff’s premises and the fire which broke out therein.
These categories of discovery were ordered subject to a rider permitting An Garda Síochána to refuse consent to the discovery of:
“(a) The second DVR recorder removed from the premises known as the “Waterfront” on the 13th day of February, 2009,
(b) The forensic reports prepared by the Data Clinic Ltd. in respect of the recovered CCTV recorders and footage and the forensic report prepared by Critical Processes in respect of samples taken by Dr. Ormsby in February, 2009, at the site of the fire the subject matter of the proceedings, on the basis that the disclosure of same is privileged pursuant to public interest/investigative privilege”.
The Commissioner asserted a claim of public interest privilege in respect of the documents in issue, which claim was disallowed by Mr. Justice Kelly on the 14th February, 2011. This order stated that:
“It is ordered that the claim (public interest/investigative privilege) sought to be asserted by the Commissioner of the Garda Síochána in the said Notice of Motion dated 13th September, 2010… be disallowed.”
The appeal.
In his Notice of Appeal, which is undated in the form in which it is before the Court, the Commissioner relies on the following grounds:
“(1) The learned trial judge erred in fact and in law in determining that the privilege of the nature asserted by the appellant could not and did not apply to the documents and items over which the privilege was asserted.
(2) The learned trial judge erred in fact and in law in determining that as the documents and items in issue were not generated by the appellant no privilege of the type contended for by the appellant could be asserted in respect of same.
(3) The learned trial judge erred in fact and in law in determining the public interest/investigative privilege did not apply to the subject documents and items in light of the fact that the subject documents and items were procured or identifiable and received from one of the parties to the civil proceedings.
(4) The learned trial judge erred in fact and in law in failing to properly or adequately take into account the proper course of the criminal investigation identified by the appellant and by failing to properly or adequately consider the concern express by the appellant that disclosure of the forensic reports specified at paragraph (a) of the Notice of Motion … could potentially disrupt the due and proper investigation of the crime suspected.
(5) The learned trial judge erred in law and in fact by directing disclosure of the material (reporter data) (obtained as a result of the process of cannibalisation of the DVR identified at paragraph (a) of the Notice of Motion… after a period of fourteen days had elapsed after cannibalisation of the said DVR on the ground that same fails to respect the investigative/public interest privilege contended for by the Notice Party.
(6) The learned trial judge erred in fact and in law in refusing to award the Notice Party its costs of the application.”
However, in the evidence on affidavit, a somewhat more nuanced position applies. At paragraph 9 of his affidavit sworn the 9th September, 2010, Inspector Kelly on behalf of the Commissioner swore that:
“… both Seamus and Kevin McLaughlin attended and viewed the available footage at Buncranna Garda Station on the afternoon of the 30th August, 2010”.
He goes on to say that “An Garda Síochána are prepared to provide copy of such CCTV footage as is available” but not “all the CCTV Monitoring Surveillance system as same is required for the ongoing investigation”.
It is also clear from the affidavits in the case that the privilege claimed is described as public interest/executive privilege and, in the Notice of Appeal as “investigative” privilege. In my view, nothing turns on the distinctions made.
The evidence on affidavit establishes that, while the fire has been investigated by the Garda Síochána no charges have been directed by the Director of Public Prosecutions and therefore none have been preferred against the plaintiff. This is the position now, as the third anniversary of the fire approaches.
The High Court Judgment.
This matter came before the High Court at its normal busy Monday morning motion list. The learned High Court Judge recorded that the matter had been in his list on a number of occasions so that he could be informed of what the decision in relation to a prosecution the DPP had reached but that he was told that no decision had been reached and neither could any estimate of time be given as to when a decision on a prosecution might be made. In the circumstances the only note of the High Court ex tempore decision is an agreed note of counsel. This is as follows:
“This case was commenced in the Commercial List on the 16th of March 2010. The circumstances of the case are also the subject matter of a police investigation. To date unfortunately no decision has been given concerning the outcome of this police investigation. One of the reasons given by the Commissioner in respect to his claim for privilege was to await the decision of the Director of Public Prosecutions. The Commissioner seeks to object to disclosure of two species of documents, one DVR recorder and two reports (being a) a report prepared by the Data Clinic and b) a forensic report prepared by Critical Processes. It is said that the documents ought not to be disclosed to the suspects of the investigation. The curious thing is that they were not generated by the Gardai, they were given to the Gardai. We are therefore in the curious position in circumstances where the documents over which privilege claimed were not generated by the police.
Two authorities have been cited in support of the proposition (Breathnach – v – Ireland No. 3) and DPP – v – Corbett. In my view Breathnach on its facts has little or nothing to do with the case. None of these deal with the situation where an investigation is going and the documents over which privilege is claimed are not generated in the course of the proceedings. I am unable to discern any element of privilege where the Commissioner gets documents from one party to the proceedings.
The second element of the claim of privilege is more complex for technical reasons which I need not get into. These items are in the possession of the police and they are going to carry out the process known as “cannibalisation”. The Plaintiff wants to observe that process through a representative. There is no authority entitling a Court to impose this upon An Garda Siochana. As to the fruits of the cannibalisation process, both parties ought to have sight of same and if that constitutes a report they ought to have sight of such report and to be entitled to view the recording. It is said by the Commissioner that this should not happen until after the DPP has seen the recording. I have no idea how long the DPP will take to do this.
This Court has treated this Motion as a Motion for ordinary non-party Discovery. I am of the view that the appropriate Order to make in this case is to make no Order as to costs as the Application has not been successful”.
I agree with the learned trial judge that the case of Breathnach v. Ireland No. 3 [1993] 2 IR 458 appears to be without relevance to the present proceedings. Breathnach was a case arising from the Sallins Train robbery and featuring allegations of assault and battery, false imprisonment, intimidation, malicious prosecution and breach of constitutional rights all centering on the manner in which confessions were allegedly obtained by the State defendants in relation to the once famous Sallins mail train robbery in 1974. Four defendants were sentenced to lengthy prison sentences for this offence but all had been released, on appeal or otherwise by the time the discovery action in Mr. Breathnach’s civil proceedings came on. The material which was controversial in Breathnach was:
“All records relating to communications between [various members of the gardaí involved in obtaining the alleged confessions], and any other members of An Garda Siochana in the months of March and April 1976, which are, or have been, in the possession or power of the Director of Public Prosecutions”.
This is material of a totally different sort to what is in question here. What is in question here is the product of a surveillance system, and the system itself, which was actually the property of the plaintiff. The material was in that sense generated by the plaintiff, and owned by him, as opposed to the position in Breathnach, where the material was internal police material generated by the gardaí. But some of the principles laid down in Breathnach are of relevance.
The other case which was cited to the learned trial judge, apparently in support of the privilege, was Corbett v. Director of Public Prosecutions [1999] 2 IR 179. This was a decision of the High Court (O’Sullivan J.) in a somewhat similar case. There, the applicant was charged with assault. The summons against him had been adjourned but prior to the adjourned hearing he received a letter from a Garda Sergeant informing him that the case would be further adjourned. Meanwhile a Garda Clerical Officer contacted his solicitor and informed her that the prosecution would be seeking an adjournment on the basis of a pending Supreme Court judgment. The applicant sought judicial review against the respondent on the grounds that he had usurped the Court’s function by denying the applicant access to the Courts. He was granted leave and later sought discovery of documents in respect of the appointment of the District Court Clerk and also in respect of the adjournment application by the gardaí. The gardaí claimed privilege over certain documents. O’Sullivan J. upheld claims of privilege over certain documents and directed that others be disclosed. He held, following the decision of Keane J. in Breathnach, above, that where documents were prima facie privileged “then I consider the Court should proceed to inspect the documents to ascertain whether in the particular circumstances they should, notwithstanding the prima facie claim, be disclosed to the applicant” (page 189). He held following the decision of Finlay C.J. in Ambiorix Limited v. Minister for the Environment [1992] 1 IR 277, that:
“There cannot… 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 the position of the individual or body intended to use them”.
He therefore proceeded to examine the documents individually.
Both Ambiorix and the earlier case of Murphy v. Dublin Corporation [1972] 1 IR 215 emphasise the possibility of conflict in the interests to be regarded in Discovery applications, Walsh J. saying in the latter case at p.233:
“There may be occasions where the different aspects of the public interest ‘pull in contrary directions’ – to use the words of Lord Morris of Borth-Y-Gest in Conway v. Rimmer [1968] AC 910. If the conflict arises during the exercise of the judicial power then, in my view it is the judicial power which will decide which public interest shall prevail. This does not mean that the Court will always decide that the interests of the litigant shall prevail”.
In Conway, a major development in the law of England and Wales took place. The earlier line of authority had been epitomised in Duncan v. Cammell Laird and Company [1941] 1 AER 437. There, the plaintiffs sought damages arising out of an accident in a submarine built by the defendants under a government contract. Discovery was objected to on the ground of Crown privilege and the House of Lords upheld that objection and refused to adjudicate on the veracity of the assertions grounding the plea. The privilege prevailed automatically, without examination.
Conway changed the position considerably and held that the Courts:
“… are entitled to exercise a power and duty to hold a balance between the public interest as expressed by the Minister, to withhold certain documents or other evidence and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject the Minister’s view: full weight should be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail; but experience has shown that reasons given for withholding whole classes of documents are not often of that character.
… There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask… whether the withholding of a document because it belongs to a particular class is really necessary for the proper functioning of the public service”.
Lord Reid went on to make his well known statement about Police documents holding that “… it is essential that there should no be disclosure of anything which might give any useful information to those who organise criminal activities”. And he continues in the passage cited by the Chief Justice in the present case.
Conway was a case of discovery sought, by a probationary policeman who had been refused a permanent appointment, of various documents in the nature of assessments of his performance as a probationer. The Court below upheld a claim of Crown privilege but the House of Lords reversed the decision.
It has not been easy to find cases directly analogous to the present or even cases where documents generated by the police were required for civil proceedings. That this latter circumstance does not arise very often is presumably due to the custom of providing a “garda abstract” in motor claim cases. I have found only one decision on this area generally and it is a decision of the former President of the Circuit Court, Judge Sheridan, Walsh v. Peters and An Garda Síochána, a judgment given on the South Eastern Circuit in 1992 and reported in [1993] ILTSJ 1 82. There the learned Judge held that, following Murphy v. Dublin Corporation, cited above, a claim that communications between one garda and another were inadmissible as a class is not sustainable. He followed the dictum of Keane J. in that case:
“… once the Court is satisfied that the document is relevant, the burden of satisfying the Court that a particular document ought not to be produced lies on the party, or the person, who makes such a claim. It follows therefore that before any claim can be made in support of the non-production of the document by the Executive, a claim must be made in relation to the particular document and the ground of the claim must be stated”.
Judge Sheridan’s judgment demonstrates that the case of Attorney General v. Simpson [1959] IR 105, which in many ways is the Irish equivalent of Duncan v. Cammell Laird, is no longer good law.
Onus.
There is no doubt that the onus of proof on this appeal rests on the Commissioner. In the circumstances of Breathnach (which were much stronger from the garda point of view), Keane J. said in the report already cited:
“However, whatever be the position in relation to documents of a specific nature to which I have already referred, such as those involving the disclosure of garda sources or the security of the State, it would seem that, where the claim is couched in more general terms of public interest, as here, the burden of satisfying the Court that it should not proceed to inspection should lie upon the person seeking to withhold the document”.
In the present case however the Commissioner is not seeking to withhold a document from inspection: he is objecting even to discovery being made of it.
The nature of the Commissioner’s case.
It appears to me that the Commissioner’s case is substantially based on the general proposition that material should not be disclosed to the plaintiff “until such time as either the DPP has directed that no prosecution should be brought or the DPP has directed that a prosecution should be brought and has directed the service of a Book of Evidence at which point in time the said reports will be contained in the same Book of Evidence and accompanying documents”. (Emphasis added)
It appears to me therefore that the Commissioner’s substantial objection to the making of discovery is one of priority and timing. He asserts, as a matter of principle, that given that there has been a garda inquiry (it is not ongoing but was terminated by the transmission of a file to the Director of Public Prosecutions on the 18th May, 2010) and given that there may be or may not be a prosecution, the gardaí are entitled to withhold the information until the prosecution is commenced, and it will be disclosed in the course of the prosecution.
It will be noted that the Commissioner does not make any objection on the grounds of irrelevance or non-necessity to disclose. It appears to be agreed between the parties that, but for the possible criminal proceedings, the documents in question would fall to be disclosed in the ordinary way as non-party discovery in the civil proceedings.
Priority.
There is in my opinion no rule of law whereby a civil case which is ready to proceed, or to proceed to the next procedural stage must yield in priority even to a criminal case actually in being. Much less, therefore, is there a rule to the effect that a civil action, or a stage of a civil action, must yield to a purely hypothetical criminal case which may, or may not, ever actually come into being. Our jurisprudence on this point seems to be quite clear since the case of Dillon v. Dunnes Stores [1966] IR 397. There, the plaintiff had been employed by the defendant as a shop assistant. She was charged (with others) in the District Court with conspiracy to steal and with stealing certain goods from the defendant Company and was returned for trial. On being charged she immediately commenced civil proceedings against the defendant. The jury in the criminal court was discharged and the case adjourned.
Meanwhile the plaintiff proceeded in the ordinary way with her civil proceedings and, it should be noted, obtained both discovery and interrogatories without objection (see p.401 of the report). This Court held on the defendant’s motion to stay the civil proceedings:
“… It is not easy to see why the trial of the alleged civil wrong should not take place without reference to the criminal proceedings… if there be a tactical advantage in getting one case ahead of the other, that is not a matter in which the Court should assist one party rather than another; rather should it let the cases find their date of trial as they become ripe for hearing. This is the position in the plaintiff’s action, and no authority has been referred to which would warrant the Court in seeking to postpone it until after the final determination of the criminal proceedings. As the plaintiff could not have had an order to postpone the criminal proceedings until the determination of her civil action, equally the hearing of the civil action cannot be required to await the conclusion of the criminal proceedings.”
That application related to an application to stay the civil proceedings pending the criminal but I do not see why its logic should not equally apply to an application to defer a step in the civil proceedings. If the Commissioner’s application succeeds, it will have the effect of staying the civil proceedings.
Decision.
I would dismiss the appeal and uphold the judgment of the learned trial judge. While it is terse in its expression, understandably, because it was given extempore on a busy Monday morning, I am quite satisfied that it is correct in principle and particularly in its finding that the Commissioner has failed to establish any element of privilege in circumstances where he has got the documents voluntarily from one party to the proceedings.
This distinguishes the case radically from cases such as Breathnach which are authoritative but which relate to documents generated by the gardaí themselves in the course of an investigation. Garda investigations very often require persons, often the victims of crimes, to give voluntarily and informally to the gardaí various items of possible evidential use, such indeed as CCTV footage. A person parts with such material voluntarily for the laudable purpose of assisting the investigation of crime, but I do not believe that, in doing so, he accepts that he will face its indefinite detention, so that it is not available to him even to prosecute or defend a civil claim. If the Commissioner’s contention in the present case were upheld it would be necessary for such persons to take legal advice about a process which is currently operated quite voluntarily. I do not believe that the existing law confers privilege from disclosure of such materials even disclosure to the person whose property they are and I would therefore uphold the learned trial judge’s decision.
If the law were to be extended, and I am satisfied it would be an extension, in the direction desired by the Commissioner, it would be so significant a development that I do not think it should be undertaken by a court composed as this one is.
Moreover, in the circumstances of this case, where the plaintiff who applies for discovery has already seen the film footage, and where the gardaí in any event do not object to producing the footage, the objection in truth relates only to such footage as may be extracted from two DVR boxes, containing three discs each, and one of which, (exhibit EX1) is not in proper functioning order. Accordingly, the objection is put along the lines that:
“I say and believe that An Garda Síochána for the purpose of the investigation ought to be in the position of viewing any recovered footage prior to the subject of the investigation, and for this reason, and to ensure the integrity of the investigative process, An Garda Síochána object to disclosure of EX1”. (Affidavit of Inspector Kelly on 9 September 2010)
This is an objection of a very novel sort, and for which I think there is no authority. It must be remembered that the objection is made not withstanding that the DVR box in question is the property of the plaintiff. It was stated in the course of argument on the hearing of the appeal that the process of recovering footage might be destructive of the box itself and its product, and this seems to me to make it necessary that the plaintiff be afforded the opportunity of attending or being represented at a possibly destructive process. I can see no basis on which he can be kept out of a process sought to be carried out on his own property: I express no view as to the situation that would obtain if it were not his property.
I believe that the objection based solely on the proposition that the gardaí ought to have the first opportunity to inspect the material in question amounts to a claim of privilege over a particular class of documents viz documents in the possession of the gardaí. I can see no basis for it in principle and, inasmuch as it relates to material about a particular case, it would require to be established about that particular material in a context of that particular case (as in the case of reports on the material), and not in general terms. If the Commissioner is compelled to make discovery of the material he can at that stage raise in proper form any specific and case-related reason for its non-disclosure in this particular case. But I would reject the generic claim advanced in the affidavit of Inspector Kelly, quoted above.
Moreover, the insurers, Aviva, had these materials in their possession from early 2009 until July 2010 and have presumably assessed them. The Commissioner came into possession of these items it would appear in July 2010, and has had them ever since.
It must also be borne in mind that the civil proceedings are at an advanced stage and pleadings have closed. No criminal proceedings have even been instituted and it has not proved possible to give any estimate as to when a decision about this might be taken.
Indeed, I would have thought it in the prosecution interest that an action in which the plaintiff will bear at least the initial the onus on the self same issue – whether he himself set the fire which burnt the premises: that is the case the defendants are making – should proceed in advance of the criminal proceedings since the prosecution, by the simple act of observing the civil action, will gain a great deal of information which they probably do not presently have. But that can form no part of the basis for this decision, which turns on whether the Commissioner is entitled to defer the plaintiff’s access to his own recording machinery, and to the fruits of an examination of it, pending criminal proceedings which are entirely hypothetical. Nor do I believe that there is a principle such as that referred to in the affidavit of Inspector Kelly: that the guards, as such, have some kind of a priori right to withhold documents from one litigant (the other has already had them) on account of the possibility that there may be criminal proceedings. It is not necessary to make any comment on the position that would obtain if criminal proceedings were in being.
Conclusion.
I would dismiss the appeal and uphold the judgment of the learned trial judge.
Re Dunne, a Bankrupt
[2014] IEHC 285 JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 10th day of April 2014
1. This matter comes before the court on foot of a number of notices of motion. On 3rd December, 2013, the bankrupt issued a notice of motion seeking to cross-examine the Official Assignee. This motion was returnable for 9th December, 2013, and was heard on 5th March, 2014. On 6th March, 2014, I delivered a judgment arising out of the hearing of that motion. I concluded that the Official Assignee is not a “witness” within the meaning of O. 76, r. 73, and that if the bankrupt wished to cross-examine the Official Assignee on foot of an application made pursuant to O. 76, r. 76(1), it would be necessary for him to bring an application to the court for liberty to cross-examine, setting out on affidavit the matters on which he wishes to cross-examine the Official Assignee and why it is necessary for him to do so.
2. On 4th December, 2013, a motion was issued on behalf of Traviata Ltd., Gayle Dunne, John Dunne and Lucy Rainey, directing the Official Assignee to return items of property seized at 19, Churchfield, Straffan, County Kildare to the applicants, an order directing the Official Assignee to account to the applicants in respect of items of property removed and for an injunction restraining the Official Assignee from entering upon or interfering with the property at 19, Churchfield, Straffan, County Kildare. This motion was returnable for 9th December, 2013, and was adjourned on 5th March, 2014, to the hearing that took place on 19th March, 2014.
3. On 28th February, 2014, the bankrupt issued a notice requiring the attendance of the Official Assignee for cross-examination on three affidavits. This application was brought pursuant to O. 76, r. 73 of the Rules of the Superior Courts. This matter was canvassed in argument before the court on 5th and 19th March, 2014.
4. By notice of motion issued on 13th March, 2014 (returnable for 19th March, 2014), the bankrupt sought an order directing the Official Assignee to attend for cross-examination on his affidavits sworn on 26th November, 2013, 9th December, 2013 and 10th February, 2014. He also sought an order excising so much of the said affidavits of the Official Assignee as contain hearsay evidence, and he sought a declaration that the Search Warrant of 26th November, 2013, permitting the Official Assignee to search the premises at 19, Churchfield, Straffan, County Kildare is defective on its face and invalid.
5. In March 2014, the Official Assignee brought a motion pursuant to O. 76, r. 73 and/or O. 40, r. 1 of the Rules of the Superior Courts directing that the following parties attend for cross-examination on their affidavits:
The bankrupt, in respect of affidavits sworn on 30th November, 2013, and 17th January, 2014;
John Dunne, in respect of affidavits sworn by him on 6th and 11th December, 2013;
Gayle Dunne, in respect of affidavits sworn on 30th November, 2013, and 18th December, 2013, and
Martine Fleming, in respect of affidavits sworn on 29th November, 2013, and 9th January, 2014.
6. At the hearing of the motion on 19th March, 2014, counsel for the Official Assignee informed the court that if no order for cross-examination was directed against the Official Assignee, he will not be seeking to cross-examine the other deponents.
7. The main issue arising on foot of the various motions before the court is the bankrupt’s challenge to the validity of the Warrant obtained pursuant to s. 28 of the Bankruptcy Act 1988. It is important to note that s. 28 provides for a Search Warrant to be issued “where it appears to the Court that there is reason to believe that any other property of the bankrupt is concealed in any house, building, room or other place not belonging to the bankrupt . . .” [emphasis added]. It is clear, from what is disclosed on affidavit, that there is a dispute on the issue of the beneficial ownership of 19, Churchfield, Straffan, County Kildare (“the premises”). But so far as the validity of the warrant is concerned, this is not relevant. The application for a warrant under s. 28 was made in circumstances where the bankrupt alleges that the premises are owned by Traviata Ltd., which is wholly owned by an Isle of Man trust and the beneficiaries of the trust are claimed to be the lineal descendants of the bankrupt. While the beneficial ownership of the premises is something which may have to be determined in the future, it is not relevant to the validity of the s. 28 warrant and there is no valid reason why there should be cross-examination of the Official Assignee on matters pertaining to this issue.
8. There is also a dispute on the question of the ownership of the contents of the premises. It is the duty of the Official Assignee to ascertain whether or not there is any property of the bankrupt at the premises which can be claimed as part of the bankrupt’s estate. The bankrupt, and other parties seeking to cross-examine the Official Assignee, disputes the basis of the Official Assignee’s belief that there is artwork and other contents in the premises which are the property of the bankrupt and his concern that items may be removed from the premises to the detriment of the bankrupt’s estate and his creditors. It is clear that the applications to cross-examine the Official Assignee are for the purpose of establishing the basis of his information and his belief. In particular, the bankrupt and other applicants claim that the Official Assignee is not entitled to rely on hearsay evidence. In Simple Imports Ltd. v. Revenue Commissioners [2000] 2 I.R. 243, Keane J. said at 251:
“While the syntax is rather odd, the meaning is clear: the District Judge, before issuing the warrant, must have come to the conclusion, from the information on oath of the customs officer, not merely that he (the officer) suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is ‘reasonable’. The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis in issuing the warrant. He or she would clearly be entitled to rely on material, such as hearsay, which would not be admissible in legal proceedings. It is to be presumed, moreover, that the district judge, in issuing the warrant, will act in accordance with the requirements of the relevant legislation and the onus of establishing that he or she failed to do so rests on the person challenging the validity of the warrant.” [Emphasis added]
I entirely agree with that statement of the law and, in any event, I am bound by it.
9. In issuing the s. 28 warrant, the judge of the High Court (Cooke J.) was not purporting to adjudicate on any lis. There is no dispute or no “accuser” to be faced and challenged. Either the warrant is valid on its face or it is not. The bankrupt has shown no grounds on which the s. 28 warrant is invalid or defective on its face. Counsel for the bankrupt challenged the validity of the warrant, inter alia, on the basis that it had been issued to both the Official Assignee and the Bankruptcy Inspector, whereas s. 28 provides that “. . . the Court may grant a Search Warrant to the Bankruptcy Inspector of any of his assistants . . .” There is no merit in this point. At most, the issuing of the warrant to both the Bankruptcy Inspector and the Official Assignee was superfluous, but it does not in any way affect the validity of the warrant.
10. As the issuing of the warrant was not a lis, the judge issuing it was entitled to rely on hearsay evidence contained in the grounding affidavit of the Official Assignee sworn on 26th November, 2013. In granting the Search Warrant, the court had concluded that the facts made out in the affidavit of the Official Assignee had been established for that purpose. This is not something which, at this stage, requires cross-examination. As there is a dispute concerning the ownership of property on the premises, this may have to be resolved by an oral hearing if no agreement can be reached between the Official Assignee and other claimants to the property.
11. It is a matter for the court to decide whether its officers should be cross-examined in the interests of the administration of justice (see in Re K. (Infants) [1962] 3 WLR 752). O. 76, r. 76(1) of the Rules of the Superior Courts provides that anyone wishing to require the attendance in court of the Official Assignee or any other officer serving in the Office of the Official Assignee must apply to the court for liberty to do so. There are good public policy reasons for such a filtering process. It protects a court official from frivolous or vexatious applications which could have a significant impact on how he conducts the business of the court. The court should be sparing in the exercise of its discretion to order the attendance of the Official Assignee or one of his officers for cross-examination on affidavits sworn in bankruptcy proceedings. In Irish Bank Resolution Corporation & Ors v. Quinn & Ors [2012] IEHC 510, Kelly J. referred to the decision of O’Donovan J. in Director of Corporate Enforcement v. Seymour [2006] 1 IEHC 369, at p. 5 where the learned judge said:
“At the end of the day, it is within the discretion of the Court as to whether or not such a cross-examination should be directed and that discretion should only be exercised in favour of such a cross-examination if the Court considers that it is necessary for the purpose of disposing of the issues which the Court has to determine. That appears to me to be the import of a statement of Keane C.J. in the course of an unreported judgment of the Supreme Court delivered on 15th December, 2003, in a case of Holland v. The Information Commissioner and represents the current jurisprudence in that behalf in this country.”
12. The notices of motion issued on behalf of John Dunne, Gayle Dunne and Traviata Ltd., seek reliefs in relation to the return of goods that are on the premises. The applicants do not seek cross-examination of the Official Assignee in respect of the ownership of any of the property or goods at the premises. Just as there is a dispute as to the beneficial ownership of the premises, it appears that the ownership of property and goods thereon is also in dispute. These issues may be resolved by discussion between the Official Assignee and the other interested parties, and if it is not possible to resolve the issue in this way, then an inquiry may have to take place within the bankruptcy proceedings to determine whether or not the bankrupt is the owner of any goods or property found on the premises. While the bankrupt has brought a notice of motion for cross-examination of the Official Assignee on three affidavits, it is neither necessary nor desirable in the interests of justice to make such an order. It is clear from the affidavits which have been furnished by the bankrupt that he is principally interested in obtaining the source of information relied on by the Official Assignee in applying for a warrant to search the premises. In Irish Bank Resolution Corporation & Ors. v. Quinn & Ors. [2012] IEHC 510, Kelly J. said at para. 65:
“The order which is sought is specifically focused on the defendants’ relevant affidavits. It is not and will not be permitted to become a trawl through material which will fall to be determined at trial. Neither will it amount to what counsel for the defendants called a deposition before trial. Depositions before trial are not part of the trial process in this jurisdiction such as they are in the United States of America.”
In that case the court stated that it would not permit a fishing expedition or a roving commission.
13. While the bankrupt wishes to establish the source of the Official Assignee’s information grounding the application for the s. 28 warrant, there are good public policy reasons why he should be entitled to maintain informer privilege. Such a privilege was allowed by the court in Director of Consumer Affairs v. Sugar Distributors [1991] 1 I.R. 225. Marks v. Beyfus [1890] 25 Q.B.D. 494 had established that, in criminal matters, police informers need not be disclosed as otherwise the information to enable the police to deter and detect crime might not be forthcoming. In D. v. N.S.P.C.C. [1978] AC 171, Lord Diplock, at 218, said:
“The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which, by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a Rule of Law, the balance has fallen upon the side of non-disclosure except where, upon the trial of a defendant for a criminal offence, disclosure of the identity of the informer that helped to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.”
In the UK, the principle was extended to persons from whom the Gaming Board received information for the purpose of the exercise of their statutory functions and to persons who give information to the NSPCC about alleged ill-treatment of children. It seems to me that in a case such as this, the Official Assignee is entitled to rely on information without disclosing its source when he makes an application for a s. 28 warrant. That is not to say that in due course, if the question of ownership of the contents at the premises remains in issue, that evidence will have to be tendered in the usual way to establish, on the balance of probabilities, whether or not the bankrupt is the owner of such property.
14. No useful purpose can be served by directing the cross-examination of the Official Assignee on this issue. The warrant has been executed, and insofar as there is a dispute concerning the fruits of that warrant, these issues can be resolved in due course by whatever hearings may be necessary for that purpose.
15. I will now deal with the other issues that arise on foot of the notices of motion issued by the bankrupt and other parties. The bankrupt seeks an order for the delivery of confidential papers associated with Family Law litigation in which he is involved. The Official Assignee has been joined as a notice party in the Family Law proceedings. Whether the Official Assignee is entitled to retain and examine the papers which he has seized at the premises is a matter for legal argument if the issue cannot be resolved by agreement. It does not require cross-examination. Insofar as an order is sought directing the Official Assignee to deliver an inventory in respect of items removed from the premises, this has already been done.
16. The application by the bankrupt for an order staying any further applications by the Official Assignee pending the determination of his application to show cause against the bankruptcy is now moot as the application was determined in my judgment of 6th December, 2013, when the application was refused. The bankrupt’s application for an order restraining the Official Assignee from exercising any of his functions or powers pursuant to s. 61 of the Bankruptcy Act 1988, must also fail on the same ground.
17. This leaves the issue of the declaration sought by the bankrupt that by virtue of his prior US bankruptcy, all the bankrupt’s property, wherever situated, is vested in the US bankruptcy estate. This is a question of law in respect of which cross-examination does not arise. It has to be considered against the background of a dual bankruptcy in both the United States and in this State, having regard to the fact that by order of the US bankruptcy judge, dated 12th June, 2013, the automatic worldwide stay on proceedings against the bankrupt pursuant to US law was varied so as to allow for the adjudication hearing in this jurisdiction.
18. I refuse the reliefs sought by the bankrupt in the notices of motion dated 3rd December, 2013, 28th February, 2014, and 13th March, 2014. I also refuse the relief sought in the notice of motion of 4th December, 2013, by Gayle Dunne, John Dunne, Traviata Ltd. and Lucy Rainey.
19. As the Official Assignee has informed the court that he does not wish to cross-examine the bankrupt or Mr. John Dunne, Ms. Gayle Dunne or Ms. Martine Fleming if no order is made directing his cross-examination, I will make no order on the Official Assignee’s application for cross-examination of those parties.
Cook v. Carroll.
Gavan Duffy J. [1945] IR 515
The parish priest of Ballybunion, the Rev. W. J. Behan, called as a witness in the course of a seduction action at Tralee, claimed privilege.
The evidence is that the defendant, on learning that a girl was attributing the paternity of her still unborn child to him, went straight to their parish priest, who thereupon sent his car to bring the expectant mother to his house and then confronted the parties, but without success. The parish priest, of course, intervened in the hope of averting a public scandal in the interest of his flock, by either inducing the girl to withdraw a false charge, or persuading the man to make amends for the wrong done to her. Legal proceedings with their unsavoury publicity have often been prevented in this way.
Three persons were present, the parish priest, the girl and the man, and as a matter of law the meeting must have been held “without prejudice,” by necessary implication from the natural understanding of the participants under the circumstances, so that nothing said could afterwards be used in Court against either the girl or the man. But at the trial the girl and afterwards the man waived privilege by giving evidence of the conversation and their stories did not tally; the plaintiff called the priest as a witness, apparently to corroborate an allegation of some admission by the man, but Father Behan refused to testify and the learned Judge of the Circuit Court imposed a fine on him for contempt of Court. Father Behan did not appeal against that fine.
The action came before me on appeal at Tralee. The parish priest, called as a witness by the plaintiff on the appeal, took the oath expressly subject to his claim of privilege; he then said:
“I respectfully decline to give evidence. I cannot conscientiously do so, because any information I have, was given to me as parish priest. When parishioners come to consult the parish priest, what they tell the priest is given on the understanding of secrecy and should not be revealed under any circumstances.”
This claim raises a grave issue of far-reaching importance in Ireland and I deferred my decision until I could consult authoritative sources on the juristic position of the sacerdotal privilege; I shall use that term throughout to describe a legal right for a priest to refuse in a court of law to divulge any confidential communication whatever made to him as a priest; but my decision must be confined to the admissibility of the more limited privilege necessary to justify Father Behan’s refusal to give evidence of the conversation. No canon law was cited to me and I shall determine the issue without reference to the law of the Church.
The issue here is governed by common law, not by any Act of Parliament, and, while common law in Ireland and England may generally coincide, it is now recognised that they are not necessarily the same; in particular, the customs and public opinion of the two countries diverge on matters touching I religion, and the common law in force must harmonise with our Constitution.
I have no doubt that the seal of the confessional was respected in the courts of England before the Reformation see Best on Evidence (1922), par. 584and its recognition before the Norman Conquest seems to be proved; see Mr. Finlason’s note to Reg. v. Hay (1). The attitude of pre-Reformation courts towards any wider claim by a priest is probably unascertainable to-day, for law-reporting was then in its infancy and the law itself was often unsettled.
Later English Judges interpreting the common law have disagreed; rare decisions upholding the sacerdotal privilege to the full extent may be found up to eighty years ago, but they are not now regarded as law, because the preponderance of judicial opinion in England has denied any privilege whatever to the priest for confidences made either inside or outside the confessional. The fact is that the old common law has been overlooked or.brushed aside.
In 1881, Sir George Jessel M.R. in Wheeler v. Le Marchant (2)(an action on a building contract), declared that:”communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune are not protected”; and the authority of that learned Judge stands so high that thisobiter dictum is constantly quoted as embodying the present law in England. Other confidential communications to a priest are equally unprotected.
Nevertheless, priests have seldom been penalised in England for refusing to speak. In modern England a powerful volume of opinion is opposed to the enforcement of the law typified by Sir George Jessel’s pronouncement and there has long been a feeling that the community is better served by passing over awkward clerical incidents than by advertising a discreditable rule of law. Best on Evidence (1922), par. 583, has a careful study on the subject.
I have dwelt on the confusion prevailing in England because the English law of evidence is generally assumed to be, as generally it is, the foundation of the law in force here, before and since the Treaty. Authority from the former Courts in Ireland is very scanty; but, just as the judiciary in Ireland, under the steady pressure of public opinion, discovered, eventually, and long before the House of Lords in England, that money might lawfully be bequeathed for masses, so there are clear indications that the Courts in Ireland, where the utter futility of trying to invade the secrecy of the confessional must have been patent, did recognise that a priest in the witness box could not be asked to break the seal. (See In re Keller (1), where a similar claim of right, though somewhat wider than that now asserted, is ascribed to the Very Rev. Canon Keller, P.P., and see Tannian v. Synnott (2).)
No reason whatever was vouchsafed for the implied repudiation of the Jessel doctrine, proclaimed by virtue of the supposedly identical common law, and this anomaly is notable because several great jurists adorned the Irish Bench. Apart from the sacrament of penance, no sacerdotal privilege was recognised in an Ireland dominated by English legal precedent for its common law.
I turn to other countries following the same basic system of legal evidence. Catholics and their sympathisers have been strong enough to get laws passed in most of the Legislatures of the United States declaring the privilege of silence for the secrets of the confessional; in Louisiana the privilege extends to all communications made to any clergyman by anyone seeking spiritual advice or consolation, but the privilege belongs to the layman who may waive it. In Newfoundland since 1916 a “clergyman or priest” is not compellable to give evidence of any confession made to him in his professional character.
But the most apposite legislation is, as one would expect, that of Quebec, where I find a statute, passed sixty years ago, ordaining that a witness “cannot be compelled to declare what has been revealed to him confidentially in his professional character as religious or legal adviser.” The limits of the legal advisers’s privilege at common law are clear and settled; and French Canada, by assimilating the sacerdotal privilege for every religion to the legal privilege, has instituted a very interesting precedent, of which I think the practical results would repay investigation.
If a similar enactment were reproduced in our own legislation, the task of the Courts would be greatly simplified, for Judges who reject the English law as inapplicable may differ, and differ considerably, in the absence of a statute of the Oireachtas, as to the precise point at which the line is to be drawn, if the full sacerdotal privilege is not clearly law.
Though there are some reasons common to the cases for the sacerdotal and for the legal privileges, one marked distinction merits notice. As between himself and his attorney, the client is master of the situation, so that, if he thinks fit to waive his privilege, the privilege disappears and the lawyer, his paid servant, cannot set it up. But the priest is not hired, and a parishioner’s waiver of privilege should not, as a matter of course, destroy the priest’s right to keep his secret, where the sacerdotal privilege is regulated by law; I am speaking here of confidences outside the confessional, for, as Catholics know, the inviolable secrecy of the sacrament of penance stands alone and unique. (See also the corollary at the end of this opinion.) Different considerations again apply to the claim, denied here and in England, for medical privilege; this claim has recently been examined by a committee of the influential American Bar Association and its almost unanimous recommendation favours a law of North Carolina, giving a Judge authority to require disclosure by a doctor, when he thinks it necessary for justice.
I have to determine the issue raised in this case on principle and in conformity with the Constitution of Ireland. That Constitution in express terms recognises the special position among us of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens; and that special recognition is solemn and deliberate. The same Constitution affirms the indefeasible right of the Irish people to develop its life in accordance with its own genius and traditions.
In a State where mine out of every ten citizens to-day are Catholics and on a matter closely touching the religious outlook of the people, it would be intolerable that the common law, as expounded after the Reformation in a Protestant land, should be taken to bind a nation which persistently repudiated the Reformation as heresy. When, as a measure of necessary convenience, we allowed the common law generally to continue in force, we meant to include all the common law in harmony with the national spirit; we never contemplated the maintenance of any construction of the common law affected by the sectarian background. The Oireachtas is free to-day to determine how far our Courts are to recognise the sacerdotal privilege, but I am not concerned with that aspect of the matter. I am concerned with a juristic system of evidence surviving to us from an alien polity, and it is unthinkable that we should have imposed on ourselves in this matter the regrettable preconceptions of English Judges as having here the binding force of law, when merely re-echoed by pre-Treaty Judges in Ireland.
In order to ascertain the true juristic principle, on which our own Law Reports are silent, I shall resort to Wigmore’s monumental work on the Anglo-American System of Evidence and to the third edition, volume viii, published at Boston in the year 1940. No comparable study exists in the English law library, but, as the work is hardly known in Ireland, where English textbooks on evidence hold the field, I may recall that John Henry Wigmore was Dean of the Law Faculty at North-western University, Chicago, and that on his death in 1943, the late Sir William Holdsworth stated that Wigmore’s book was at once accepted as a classic (59 L. Q. R 289).
The development of the sacerdotal privilege in many jurisdictions is examined by Wigmore from a rather adverse standpoint in pars. 2494 to 2496, whence I have taken my references to American and Canadian law, and the medical privileges in pars. 2380 to 2391. But the “General Principle of Privileged Communications,” formulated in par. 2285, arrests my attention.
The principle is elaborated in four leading canons in the terms following:
“Looking back upon the principle of privilege, as an exception to the general liability of every person to give testimony upon all facts inquired of in a court of justice . . . four fundamental conditions may be predicated as necessary to the establishment of a privilege against the disclosure of communications between persons standing in a given relation:
(1) The communications must originate in a confidencethat they will not be disclosed;
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation;
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered; and
(4) The injury which would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
These four conditions being present, a privilege should be recognised; and not otherwise.”
(The italics are not mine.)
I gratefully accept the learned jurist’s penetrating analysis. (I might suggest one or two very slight variations, but there is no need here.) Let me see how his canons fit this case.
The relation that concerns me directly is that of the Irish parish priest towards two of his parishioners and theirs towards him at a crisis, in a moment of gravest anxiety, which he will often be in a much better position to relieve than anyone else. As a rule, he is regarded as being truly the spiritual father of his people and his traditional devotion to the people through generations has won for him in Ireland the prerogative of an extraordinary moral authority; he is, therefore, more likely than others to get the truth in a matter of extreme delicacy and so was more likely to induce the delinquent here (seducer or calumniatrix) to make proper amends. It cannot be taken as a matter of course that Wigmore’s conditions, if they apply here, will apply to every confidential communication made by anyone to any priest or any clergyman as such, but I must not travel outside the relation constituted by the consultation in strict confidence of a parish priest as such by a parishioner.
In my opinion, the four conditions apply to that relation; indeed they seem to apply as neatly as if they had been made to Father Behan’s order. Take the first: nobody can dispute Father Behan’s assertion that any communications made at his house on that occasion were made on the understanding of secrecy; and that is true of the relation generally.
Take the second: the subject-matter of the conference was of a character to make secrecy essential to any prospect of a satisfactory outcome, and without a conviction of strict secrecy the persons involved in any like case would not let the priest bring them together and would not talk; confidentiality is essential to the proper maintenance of the relation.
As to the third condition, wherever intimate confidence exists between parish priest and people, it wears a sacred character of immense potential benefit to the community, both to resolve the most delicate problems of life and to shield the flock from public scandal in things of shame, and, unless I am much mistaken, the community thoroughly appreciates the value of the relation and wishes it to be preserved and fostered for the common weal.
Wigmore attributes the refusal of any sacerdotal privilege in England to a tacit denial of this third condition, that is (much more bluntly) to antipathy for the Church; I think the rule was first adopted in England at a period when religious bias was inevitable and when public opinion would have resented the privilege as being mainly a concession to Popish priests. It is sometimes forgotten that the Catholic Emancipation Act, with its provisions for suppression and banishment, proclaimed the dislike of the Jesuits and members of other religious orders as late actually as the year 1829; a spirit of that sort is very powerful and dies hard.
As to the fourth condition, I am of opinion that, though a clerical autocrat here or there may be found to exceed his proper functions, the Irish people to-day, if asked to express their views, would by a decisive majority declare its conviction that we should lose far more in the parish by vainly insisting, where the relation exists, upon disclosure as the legal obligation of the priest called to give evidence than we could hope to gain in litigation by informing our parish priests that an Irish Court cannot recognise the sanctity of the hallowed confidences exchanged in such a colloquy as that arranged by Father Behan or other private consultations with parishioners.
Accordingly, I hold that the privilege requisite to secure testimonial immunity to the parish priest in this case is one in which the four conditions predicated by Wigmore are all present. It follows that Father Behan was within his legal right in refusing to divulge the conversation as a witness, unless I am to be precluded by very questionable adverse pre-Treaty precedent and the absence of any precedent in our own Courts. But a Court so confined would not be a High Court of Justice and the Constitution has taken care to invest this Court with wide and comprehensive jurisdiction.
Let me examine the juristic setting of my immediate problem. The common law is an integral portion of our jurisprudence; its misconstruction is not. I must be guided by authoritative precedent, where it exists; here there is none. Quite apart from the Constitution, a Judge, when ascertaining the law, must reject interpretations of the common law plainly unreasonable and inconvenient ( Mirehousev. Rennell (1)) or otherwise erroneous, just as he must discard a decision overlooking the real point at issue ( In re Lechmere and Lloyd (2)), or based on insufficient and incorrect information (In re Caus(3)). Setting pseudodox aside, I must treat the law here at the date of the Constitution astabula rasa.
The Judges of the old regime in Ireland were the guardians of the British Constitution in Ireland. They knew no Irish citizens with distinct rights of their own under an Irish Constitution. They ordinarily borrowed their construction of the common law from English judgments, as of course, and most of their common law judgments might as well have been delivered from the English Bench.
The exception allowed in Ireland for the secrets of the confessional was adopted tacitly and from sheer necessity. It was never avowed as the exposition of the true common law, due as of right to a people who simply would not have that law as deflected after the Reformation in England. Probably that right and that deflection did not occur to lawyers bred in another tradition. The true common law in this matter and the position on principle of the sacerdotal privilege generally were never, so far as I know, investigated by the Judges in Ireland. But any extension of that privilege beyond the sacrament of penance seems to have been refused automatically, because, and only because, English Judges denied the privilege.
I have found no reasoned attempt to justify the position neither Irish nor English, taken up in the Four Courts. And the patent fact that English law on this topic was warped seems to have escaped the zealous magistrates who were trying to administer in Ireland, though in a spirit foreign to that of a Catholic people, the same common law that prevailed in England, while unobtrusively conceding a special exception for Ireland, not to juristic argument, but for the thoroughly practical reason that the Catholic Church was too strong in this country.
Incidentally, I am dealing here with a procedural matter, important in the cursus curiae of our newly established Courts and therefore peculiarly fit to be moulded to the needs of the Irish people, unrepresented in the Courts of Ireland before 1924. Perhaps the old Judges would have said that these were mere matters of procedure, to be regulated in their discretion.
But, treating the question as one of substantive law, I hold that the emergence of the national Constitution is a complete and conclusive answer to the objection that I have no judicial precedent in favour of the parish priest. I hold that I am free to give judgment, in the light of the Constitution, on principle, and that I am bound to do so. I have already set out and discussed the most authoritative exposition of the principle.
Finally, an important corollary is, in my opinion, to be deduced from the proposition that the privilege required to protect Father Behan passes the test of the four canons; that corollary is that the parish priest, like each of his two parishioners, had a lawful interest of his own in the maintenance of the secret and, having no counsel, was entitled to have that interest and that secret protected by the Court. The reason is that, where three persons are concerned, the privilege, once admitted, must, I think, be a tripartite privilege; otherwise there would be much danger of the concession failing in its essential purpose of serving the community.
First, I think the risk, in examination and cross-examination of one witness or the other, of having the whole of an intimate conversation repeated in open Court would tend to hamper the priest and prevent him from speaking his mind freely and would accordingly diminish the value of his intervention in any such case as this.
A second and more decisive consideration is that on no account should such a confrontation by a parish priest be allowed to become a snare. Take a quite probable example, if the priest cannot stop publication:the girl, waiving privilege for her part to prove some alleged admission by the man, gives evidence of the private conversation; counsel for the man might object successfully that the conversation was held without prejudice, but he dares not, because, if he did, it would at once be thought and said that the man was afraid to let the truth come out; then the man, having been put in this false position, has to give his account of the conversation, waiving his privilege. (If, as in this case, the man is married, his counsel may be extremely embarrassed in selecting his best course.) And the argument applies vice versa, if the man first tries to break the secret;
Thirdly, to protect the priest against having to testify is only a half-measure of justice, if others may blurt out the conversation; the essential foundation of the relation established is the acceptance from the outset by all concerned of the inviolable secrecy of the meeting under the aegis of the parish priest; that is the capital consideration, and we must protect confidences which would never have been exchanged at all but for the absolute and implicit faith of his two parishioners in him. If in a crisis his extraordinary prestige as parish priest is utilised, we cannot afterwards, having got his aid in closest secrecy, treat him as a cipher, a mere onlooker, whose determination to have the secret guarded may be ignored as soon as one of the contestants seeks to get the better of the other by broadcasting it.
This is not at all the ordinary case of negotiations without prejudice between two adverse parties, who may agree to waive a privilege which belongs to them alone. In a case of this kind I think no publication whatever of the secret conversation is allowable, without the express permission of the parish priest, though we know that he will almost invariably refuse it. If, in an instance of this kind, we deny the tripartite character of this privilege, we do an injustice to the priest, who has a real and distinct interest as the parish priest in maintaining the compact of secrecy. As I understand the tacit, but clear, understanding of the three persons meeting under his roof, simple good faith should be held to prevent two of them from publishing anything there said, without the express prior consent of the parish priest.
I regret that this view did not occur to me at the hearing for discussion by counsel and I state it now, without having heard any argument, not as a conclusion of law, but as a strong impression, formed after reflection on the whole episode, upon one interesting aspect of a very interesting problem. My main decision stands independent of this corollary and, for the reasons already given, I hold that the parish priest of Ballybunion committed no contempt of the High Court on Circuit.
John J. Forristal v Forristal and O’Connor
Circuit Court
11 July 1966
[1966] 100 I.L.T.R 182
Judge Deale
Wexford. 11 July, 1966
Evidence—Privilege—Letter to Priest—Whether confidential—Whether letter to Priest privileged.
The defendant wrote a letter to a Priest containing defamatory statements in relation to the plaintiff. The defendant claimed privilege for this letter and the Priest in evidence stated that he regarded the letter as confidential and privileged.
Held There was no sacerdotal privilege covering the letter and its production was ordered Cook v. Carroll 79 I.L.T.R. 116 distinguished.
Civil Bill.
The letter to Father Power the Priest concerned was as follows:—
“Dear Father Power,
“As you are aware of the dispute in Tinnock between my mother and Jack I am writing to you for advice as to what to do in this matter. Jack reported mother Christmas week and got her pension stopped. Her book was taken up early in Jan. and she has got no pension since A letter came from Pension Officer for her last week stating her pension has been cut down to almost half. I could not give her the letter as we do not want her to know she is not in good health and when she get any trouble she neither sleeps or eats She has no income whatsoever, she is to get £100 per year out of Tinnock but she has already given Mr. O’Connor the Solicitor £30 trying to get it but still Jack will not pay, he also will not give Martin his £300 out of the place and he will not fix up with Bridie (Mrs. O’Connor) with the implements which he agreed to do in Mr O’Connor’s office He is also telling the people that Jim and myself are try to get money out of Tinnock which is a he, we want nothing we are only working on account of my mother being 78 years and Martin and Bridie to get a fair deal Mother is here with us at present as she got the ‘flu and the house in Killesk was so damp we could not leave her there.
“Fr., could please let me know what would be the best steps to take to try and get her pension back for her as she must get something to live on and I thought you may know the best thing to do. Hoping to hear from you soon, and thanking you.
I remain,
Yours truly,
David Forristal.”
Further facts appear from the judgment.
Representation
David Sheehy for the plaintiff.
Murray McGrath for the defendant.
Judge Deale:
I interrupted and adjourned the hearing of this action so that I might consider and decide the question whether a letter dated the 9/2/65, written to Rev. Fr. Power, P.P., of Horesbridge, by the second named defendant on behalf of the first named defendant, her husband, was privileged from production by Fr. Power in this action.
I need not set out the contents of the letter—they are pleaded—but their substance is that the writer sought the advice of Fr. Power in a dispute concerning the plaintiff’s alleged failure to carry out certain financial obligations to Mrs. Forristal, his and the first named defendant’s mother, and to their sister, Mrs. O’Connor, and to their brother, Mr. Martin Forristal. The obligations arose under a family settlement whereby the plaintiff received certain benefits in consideration of undertaking these obligations. The letter contained criticisms, alleged to be of a defamatory nature, as to alleged conduct of the plaintiff in regard to these obligations When Fr. Power received the letter he sent for the plaintiff and asked him to explain these allegations, which the plaintiff did to the priest’s satisfaction Later Fr. Power gave the custody of this letter to the plaintiff upon the production by the plaintiff to him of a letter of authority from his, the plaintiff’s solicitor, Mr. Colfer, and in due course the letter was returned to Fr. Power.
The plaintiff narrated these facts in evidence but could not produce the letter as it was in Fr. Power’s custody and of course was his property, nor could the plaintiff prove the letter, but I allowed him to give proof of the fact that he saw the letter and of its contents, and of the writer’s handwriting, subject to the production and putting in evidence of the original letter by Fr. Power This was a convenient course to follow then—it was during the first day of the hearing—because Fr. Power, who was in Court under a subpoena duces tecum from the plaintiff to appear and bring the letter with him had not brought the letter, and had to go to his home to get it Much useful time would have been lost had I adjourned the action until Fr. Power reappeared in Court.
When I allowed the proof mentioned I did not know that defendant was claiming that the letter was privileged from production in Court I had understood from Mr. McGrath, defendant’s Counsel, that the privilege he claimed was that which commonly arises in libel actions, namely, that the publication to Fr. Power was made on an occasion of qualified privilege. But on the following day when Fr. Power re-entered the Box I learned for the first time, and I gather so did Mr. Sheehy, plaintiff’s Counsel, that the privilege claimed was the sacerdotal privilege arising from the alleged confidential communication to Fr. Power of the matters in the letter, and I learnt this when Fr. Power claimed this privilege. Had I known of this claim I would not have allowed plaintiff to give evidence as to the letter but would have first adjudicated on the claim There was a misunderstanding of the kind of privilege which was being claimed.
Fr. Power’s evidence on the claim of sacerdotal privilege was to the effect that he knew the plaintiff for many years as his parishioner, but did not know David Forristal, the first named defendant, who is not his parishioner, until the year 1965; that he had been consulted in 1964 about the family dispute; that he regarded that consultation and the letter as confidential; that he had been consulted in his capacity as priest and that he would not disclose the matters mentioned to him to any party outside the dispute, and that the production of the letter would be a violation of that confidence reposed in him He said that he was frequently consulted in his position as priest about lay or mundane matters as well as about matters involving morals—which he said, and I agree with him, were involved in the matter he was consulted about—and that whether the subject was lay or moral or both he considered such consultations and the facts disclosed to him thereat to be confidential.
Mr. McGrath relies upon Cook v. Carroll, 79 I.L.T.R. 116, a decision of Gavan Duffy P., which decides that a confidence made to a parish priest by two parishioners, in circumstances clearly showing that the com munication was made with the intention of secrecy behind it, is privileged, i.e. has a sacerdotal privilege which absolves the priest from the duty to disclose the communication in a Court of Law In that case the communications were from a man and a woman who were disputing about the man’s alleged paternity of the woman’s child. This privilege exists whether the parties, or one of them, abandons or waives the alleged confidentiality by himself giving evidence of the communication, the sacerdotal privilege is absolute regardless of what the parties may wish—their consent cannot vitiate the privilege Mr. McGrath argues that the letter in this case, following on or connected with the consultation in 1964, bears this sacerdotal privilege, and if he is right then the plaintiff cannot have the letter produced and so cannot prove the alleged libel.
Mr. Sheehy distinguishes the present case from Cook v. Carroll pointing out that one of the parties—the first named defendant—is not a parishioner and drawing attention to these words in the Judgment of Gavan Duffy, P.
“it cannot be taken as a matter of course that Wigmore’s Conditions” (the basis of the President’s Judgment) “will apply to every communication made by anyone to any priest or clergyman as such, but I must not travel outside the relation constituted by the consultation in strict confidence of a parish priest as such by a parishioner.”
These are important words and express a strict limit to the principle of the Judgment.
It seems to me that in several material respects the facts in the present case differ from Cook v. Carroll.
First, one of the parties, the first named defendant, is not a parishioner of Fr. Power and the decision in Cook v. Carroll is clearly confined to cases where that relationship exists Second, in my opinion, the communication which is being litigated is of dubious confidentiality The subject-matter of the letter lacks the character which would call for secrecy or strict privacy. Its nature in this respect cannot be compared with the weighty matter which brought the parties in Cook’s Case to the house of their parish priest. Thirdly, the manner of the communication bears this out The defendant chose to write to Fr. Power and send the letter by post, thereby taking the risks that the letter might miscarry or, through accident, after reaching Fr. Power, fall into strange hands, or be read by someone other than Fr. Power. I cannot think that if the communication was intended to have the full degree of confidentiality implicit in the decision in Cook’s Case the defendant would have chosen to write it and entrust it to the post. There is yet a further reason which distinguishes this case from Cook v. Carroll, namely the fact that Fr. Power parted with the letter to the plaintiff for use by him in consulting or instructing his solicitor, Mr. Colfer, and which incident, Mr. Sheehy submits, has destroyed the privilege This acquisition of the letter enabled Mr. Colfer to have it copied for use in this action and for the purpose of pleading its contents I recognize that Fr. Power took the precaution of only handing over the letter to the plaintiff on receipt of a letter from Mr. Colfer showing the authenticity of the plaintiff’s request for the letter, but once the letter left Fr. Power’s possession and was seen by at least two other persons, Mr. Colfer and his typist, the confidential nature of the communication was gone for ever This was another of the risks taken on by the first named defendant when he chose to commit his communication to Fr. Power to the transportable medium of paper.
I am of the opinion that for the reasons I have stated which distinguish this case from Cook v. Carroll there is no sacerdotal privilege attaching to the letter and it must be produced by Fr. Power.
ER v JR
1980/6M
High Court
5 February 1981
[1981] I.L.R.M. 125
5 February 1981
CARROLL J
delivered her judgment on 5 February 1981 saying: … On the first day of this action submissions were made on behalf of Fr Brendan McDonnell that he is entitled to claim privilege in respect of communications made to him as marriage counsellor in relation to Mr and Mrs R.
Two cases were cited, Cook v Carroll [1945] IR 515 and Pais v Pais [1970] 3 WLR 830.
The Irish case of Cook v Carroll is a judgment of Mr Justice Gavan-Duffy in which he held that where the relationship of parish priest and parishioner exists on a matter of confidentiality, the communications are privileged.
In deciding the issue he expressly mentioned Article 44.1.2 of the Constitution which recognised the special place of the Catholic Church — and which has now been repealed.
The principles on which his judgment are based are taken from the writings of John Henry Wigmore on Evidence and concern four fundamental conditions, the presence of which are essential to the establishment of privilege. These are:
(1) The communications must originate in a confidence that they will not be disclosed;
(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation;
(3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and
(4) the injury which would enure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. These four conditions being present a privilege should be recognised and not otherwise.
The relationship of parish priest and parishioner is a relationship different to that of priest as marriage counsellor to spouses and this latter relationship must be examined to see if the four conditions apply.
The nature of the relationship is such that a priest acting as marriage counsellor will be consulted by a spouse or spouses in order to get advice in connection with difficulties in their marriage. I consider that confidentiality is an essential element in that relationship. I can imagine nothing less conducive to frank and open discussion between priest and the spouses, possibly leading to admissions of faults and failings on both sides, than the possibility that total confidentiality will not be observed.
Therefore the first two conditions are fulfilled.
The Constitution guarantees that the State will protect the family (Article 41). The provision of confidential marriage counselling which may help a married couple over a difficulty in their marriage is protection of the most practical kind for the family and should be fostered. The Article (now repealed) concerning the special position of the Catholic Church, while it may have influenced the decision of Gavan Duffy J in Cook v Carroll, is neither relevant nor essential to deciding whether the relationship in question here should be fostered, even though it is a priest who is claiming privilege. The fact that the marriage counsellor is also a minister of religion adds weight to the proposition that a confidential relationship between such marriage counsellor and the married couple should be fostered. When I refer to a priest, I am including ministers of religion in general. Advice given by a minister of religion has an added dimension which is not present between lay people. The third condition is fulfilled to my satisfaction.
The last condition is one which presents the most difficulty. The court should be slow to admit new categories of privilege. The one here has not yet been recognised in this country, though it has been recognised in England. In the English case of Pais v Pais (1970) 3 WLR 830 it was held that the privilege attached to communications made by spouses to a marriage counsellor was not the privilege of the counsellor but of the spouses and accordingly the evidence could only be given by the counsellor if both spouses had in unmistakable and unequivocal terms waived the privilege attaching to their communications.
The question to be answered is whether the injury to the relationship which would result from disclosure is greater than the benefit gained by not allowing a claim of privilege.
Mr Danaher states that the interests of the children must come before the rights of the spouses, presumably on the basis that in any matter relating to children, privilege could not be claimed and, conversely, if there were no children, there would always be privilege. However, it seems to me that it would be impossible to separate in marriage counselling, matters relating to children and matter unconnected with them. Where there are children, they are an integral part of marriage. To my mind either the privilege exists in respect of all communications or it does not exist at all.
It seems to me that a guarantee of confidentiality which will not be breached by giving evidence in court is an important element in building up confidence between the counsellor and the spouse or spouses. The family as such, i.e. both parents and children, benefit by successful counselling. Therefore, I am of the opinion that any benefit which could be gained in litigation by having the evidence available does not outweigh the possible injury to the relationship if disclosure can be compelled.
However, I do subscribe to the proposition that the privilege is that of the people consulting and not the priest. If both of them have taken part in the consultations, the privilege must be waived clearly and unequivocally by both. This has not happened in this case.
Since Fr McDonnell is both family friend and counsellor, the only matter to be determined is whether the occasion in respect of which the privilege is claimed was an occasion on which the relationship existed and I will hear evidence to determine that issue. I reserve the question of whether privilege can arise where the counsellor is not a minister of religion. Since it does not arise in this case I am not deciding that issue here.
Representation
In re Kevin O’Kelly
Court of Criminal Appeal
30 July 1974
[1974] 108 I.L.T.R 97
(Walsh, Murnaghan and Gannon JJ.)
The appellant applied to the Court of Criminal Appeal (O’Daly, C.J., Kenny and Finlay JJ.) pursuant to section 44 (1) of the Offences Against the State Act, 1939, for leave to appeal against the severity of sentence. Leave to appeal was granted and the appellant was admitted to bail pending the determination of that appeal.
The relevant extracts from the transcript are as follows: —
3. MR. BUCHANAN: On the night of the 18th and early in the morning of the 19th of November, did you have an interview with someone? — My lord, I beg the indulgence of the Court. I want to consider my answer carefully in the light of my responsibilities as a journalist. Yes, I had an interview with somebody.
4. Did you record that interview? — My lord, I beg leave to answer that question by saying that I am satisfied that the document before the Court, this tape recording which I see here, is an accurate, an authentic document in as much as J am satisfied that the remarks on it by Mr. Sean MacStiofain are authentic …
And later
12. MB. JUSTICE GRIFFIN: First of all, the question is: Did you interfere with it in any way?—There is an implication in the question, my lord, that I recorded the interview in the presence of the individual whose statement appears on the tape … I beg the indulgence of the Court. I have a problem here of conscience. I recognise my duty to the Court as a citizen to co-operate with it in furthering justice. I also appear here as a journalist, and as a journalist, I do, in conscience, feel bound to respect confidences given to me in that capacity, so to answer the question put to me properly, all I feel that I can say, in conscience, as a journalist …
MR. JUSTICE GRIFFIN: Perhaps if you stop there. We better rule on your problems as a journalist first. WITNESS: Yes, my lord.
MR. JUSTICE GRIFFIN: Before you answer in any way. Do we interpret your difficulty, as being, as a journalist, you feel you received certain information in confidence and you do not feel free to disclose that information.
WITNESS: My lords, with respect, this is my feeling in conscience.
And later
WITNESS: A man, but there is the implication in Mr. Buchanan’s question. It seems to me as if … Mr. Buchanan seems to me to be asking me to say that I was present physically when the statements were being made by the man on the tape were in fact made, and my position is, to disclose the circumstances in which the statements on the tape were made available to me would be a breach of confidence between me and a client which I feel, were I to breach that confidence, I would be not only putting my own exercise as a journalist into jeopardy, I would make it very difficult adequately to promote the public good by making it very difficult for any journalist all over Ireland to promote the public good by fostering the free exchange of public opinion.
And later
13. MR. BUCHANAN: (TO WITNESS) Did you in any way interfere with that tape?
WITNESS: No.
And later
15. MR. BUCHANAN: Now, who was that interview that is recorded on the tape with?
WITNESS: Well, my lord, I feel all I can say—and I respect your lordships: I am grateful to your lordships for having made the legal position clear, but my position about that tape is that I am satisfied that it is an authentic record of statements of Sean MacStiofain.
16. MR. JUSTICE GRIFFIN: Mr. O’Kelly, we are having a problem that would not necessarily arise if you answered the question asked because the question at the moment which you are asked is “With whom was the interview?” You have not told us that but you have gone on to explain something else. If you propose to take a stand this would seem to be the appropriate time in which to make a stand. WITNESS: Well, I feel …
MR. JUSTICE GRIFFIN: But I may say that necessarily must have certiin consequences.
WITNESS: I appreciate what your lordship has to say. I am very grateful for the generous manner in which …
MR. JUSTICE GRIFFIN: Do not misunderstand me. I am not in any way saying this in terrorem . I am merely stating the law so as to enable you to take a particular stand. You can take it advisedly.
WITNESS: Quite. I f eel that were I to answer that question my lord, I would be putting myself as a journalist into a position of betraying a trust and although I see my duties as a citizen I can only repeat that I feel that I have, as a member of the journalistic profession, got a duty also to the community, as all my other colleagues have, to foster the free exchange of ideas and if confidence between journalists and their clients were even to be seen to be breached then it would put the exercise of journalism in jeopardy; maybe, perhaps, in such a state as to make it impossible to foster the free exchange of ideas again. The State cannot thrive, no more than it can thrive without proper legal justice. I regret, most profoundly, my lord, taking this line and I have done it only after the deepest consideration. But I cannot in conscience take any other attitude.
MR. BUCHANAN: Mr. O’Kelly, I think you have already answered my question.
MR. JUSTICE GRIFFIN: Perhaps inadvertently.
MR. BUCHANAN: No, with respect, on three occasions the witness has answered my question.
MR. JUSTICE GRIFFIN: He didn’t. He answered another question each time. Mr. Buchanan, hadn’t we better determine this matter here and now. If Mr. O’Kelly takes a certain stand it seems to me you are going to have extreme difficulty in your proofs.
MR. BUCHANAN: I would submit, no, my lord. I would submit the witness has already answered the question that I am concerned with. If I might refer your lordship to what he said. I am satisfied it is an authentic record of statements made by Mr. MacStiofain.
ME. JUSTICE GRIFFIN: Where does that get you?
MR. BUCHANAN: I would submit, my lord, that is an identification of the statements made by Mr. MacStiofain and that appear on the tape recording which I can identify as being in his voice.
The Court then adjourned for the day and on the following day the examination of the witness continued after legal submissions on behalf of the prosecution were heard.
1. PROSECUTION: You gave evidence of an interview on the early hours of the morning of the 19th November, or the evening of the 18th November with a man. Who was that man?
WITNESS: My lord, for the reasons that I have already outlined I feel that, with the deepest regret, that the only answer I can give to that question is that I am satisfied that what I received …
JUDGE: Mr. O’Kelly, sorry, at the moment I am afraid you must answer or refuse to answer.
WITNESS: Well, I must in conscience refuse to answer that question for the reasons I have already given, with the greatest regret,
2. JUDGE: Mr. O’Kelly, so that there is no doubt about this, you understand the consequence that almost inevitably must follow from that position?
WITNESS: I do, my lord, but I feel I have, for the reasons I have tried to outline, I have no choice. As I say, I have given this matter very deep thought over many days and I feel I am … in so far as I have a public service to do or perform, this is my best way of doing that public service.
3. JUDGE: You have told us earlier that the tape produced was an authentic recording of the interview with the particular person you interviewed?
WITNESS: I have. With the greatest respect, my position about the document is that the statements are authentic statements of Sean MacStiofain. I am sorry, my lord, I am just, I believe that that was what, in fact, I said. I may be wrong. I accept your correction.
JUDGE: I am not correcting anybody, Mr. O’Kelly, I can assure you. But you are refusing to answer the question put by Mr. Buchanan in the form in which he asks it. He is entitled in law to ask it, with whom you had the interview?
WITNESS: Yes, my lord, yes.
JUDGE: Mr. O’Kelly, the court at this stage has to rule, and is so ruling, that you are obliged to answer the question and we are directing you to answer the question. The question you have been asked about who was the man. Are you still …
WITNESS: Taking the same position with the tapes recorded, my lord. I must maintain that position in conscience.
JUDGE: You understand, Mr. O’Kelly, that in so doing you are now in contempt of court?
WITNESS: I understand this and do regret it.
From the decision of the Special Criminal Court Kevin O’Kelly appealed to the Court of Criminal Appeal.
The considered judgment of the Court was read by Walsh J.
Walsh J.:—
On November 25th, 1972, the Special Criminal Court convicted the applicant for contempt of court in the face of the court and sentenced him to imprisonment for a period of three months from the date. Having been refused a certificate for appeal by the Special Criminal Court, the appellant applied to this Court pursuant to the provisions of section 41(1) of the Offences Against the State Act, 1939, for leave to appeal against the sentence and on the 27th November, 1972, this Court granted the application for leave to appeal and admitted the appellant to bail pending the determination of his appeal to this Court. On that occasion this Court also ordered that in the event of the appeal being dismissed the appellant should serve the remainder of the sentence imposed by the Special Criminal Court without any remission in respect of the period of bail allowed. The appellant’s appeal has now been heard by this Court.
The contempt arose during the course of the trial at the Special Criminal Court on the date in question of Mr. Sean MacStiofain in which he stood indicted of being a member of an illegal organisation contrary to the Offences Against the State Act, 1939. One of the witnesses called on behalf of the prosecution was the present appellant and in the course of his evidence he refused to answer a question put to him by the Court. This refusal was adjudged contempt of court in the face of the court.
The appellant is a well-known journalist employed by Radio Telefís Éireann. He had been called to give evidence about an interview he had had with the accused and upon which the State was apparently relying as evidence of an admission by the accused of membership of an illegal organisation or of an admission of facts from which that conclusion might be legitimately inferred. In the course of his evidence Mr. O’Kelly stated that he had had an interview with somebody, who was a man, on the night of the 18th or the morning of the 19th of November, 1972, and that he had made a tape-recording of the interview and had given it to Mr. Desmond Fisher, the Deputy Head of News of Radio Telefís Éireann. He stated that he had not interfered in any way with the tape before it was handed to Mr. Fisher. The tape-recording in question was identified in court partly on the evidence of Mr. Desmond Fisher and partly on the evidence of Mr. O’Kelly who also stated in his evidence that the tape-recording before the Court was an accurate and authentic one and “that he was satisfied the remarks on it by Mr. Sean MacStiofain were authentic.” When asked the direct question who was the man he interviewed, he refused to answer. He indicated that this was a problem of conscience for him and that while recognising his duty to the Court as a citizen to co-operate with it in the furthering of justice he stated “I also appear here as a journalist and, as a journalist, I do in conscience feel bound to respect confidences given to me in that capacity, so as to answer the question put to me properly” he did not feel free to disclose the information. The witness also at a later stage said that it appeared to him that the question being put to him amounted to asking him to say that he was “present physically when the statements were being made by the man on the tape were in fact made and my position is to disclose the circumstances under which the statements on the tape were made available to me would be a breach of confidence between me and a client which I feel, were I to breach that confidence, I would be not only putting my own exercise as a journalist into jeopardy, I would make it very difficult adequately to promote the public good by making it difficult for any journalist all over Ireland to promote the public good by fostering the free exchange of public opinion.”
The Court is quite satisfied that Mr. O’Kelly genuinely believed that he would be acting in breach of his journalistic ethics if he were to answer the question but the Court is not satisfied that he was entitled to refuse to answer it. Furthermore, it appears to the Court that there was a considerable amount of confusion in Mr. O’Kelly’s mind on this matter, though this may be explicable by the fact that Mr. O’Kelly found himself in an environment and a position quite unusual for him. It appears to the Court that what Mr. O’Kelly had already said in evidence amounted to evidence to the effect that the man he had interviewed was Mr. Sean Mac Stiofain and that the voice on the tape-recording was that of Mr. MacStiofain and that the interview on it was the interview in question and that the tape had not been tampered with.
During the hearing in the Special Criminal Court and during the hearing of the appeal here it was never made clear what was the confidence which Mr. O’Kelly felt tht he was being asked to break. The interview in question was one made for public broadcast and one of the essential features of the publication was the fact that the identity of the person interviewed was Mr. Sean Mac-Stiofain. 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 MaeStiofain. MR. O’Kelly’s references to the difficulty which might be placed in the way of promoting the public good by fostering the free exchange of public opinion appears to add further confusion to the matter because the object of the interview was the publication of it. The Court is aware that in general journalists claim the right to refuse to reveal confidences or disclose sources of confidential information. The Constitution, in Article 40 section 6, states that the State shall endeavour to ensure that the organs of public opinion, such as the radio and the press, while preserving their right of liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. Subject to these restrictions, a journalist has the right to publish news and that right carries with it, of course, as a corollary the right to gather news. No official or governmental approval or consent is required for the gathering of news or the publishing of news. It is also understandable that newsmen may require informants to gather news. It is also obvious that not every newsgathering relationship from the journalist’s point of view requires confidentiality. But even where it does journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. The fact that a communication was made under terms of expressed confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public has a right to every man’s evidence except for those persons protected by a constitutional or other established and recognised privilege. As was pointed out by the Supreme Court in Murphy v. The Dublin Corporation and the Minister for Local Government, 103 I.L.T.R. 65, it would be impossible for the judicial power under the Constitution in the proper exercise of its functions to permit any other body or power to decide for it whether or not certain evidence would be disclosed or produced. In the last resort the decision lies with the courts so long as they have seisin of the case. The exercise of the judicial power carries with it the power to compel the attendance of witnesses and the production of evidence and, a fortiori, the answering of questions by witnesses. This is the ultimate safeguard of justice in the State, whether it be in pursuit of the guilty or the vindication of the innocent. As was pointed out in that case, 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 resides in the courts. The judgment or the wishes of the witness shall not prevail. This is the law which governs claims for privilege made by the executive organs of State or by their officials or servants and journalists cannot claim any greater privilege. The obligation of all citizens, including journalists, to give relevant testimony with respect to criminal conduct does not constitute a harassment of journalists or other newsmen. If a journalist were to be invited to witness the commission of a crime in his capacity as a journalist and received the invitation only because of that capacity, the courts could not for a moment entertain a claim that he should be privileged from giving evidence of what he had witnessed simply because of the fact that he was there as a journalist. In the present state of the criminal law, in such a case a journalist concealing such knowledge, like any other person in a similar position, might well find himself guilty of misprision of felony where a felony was concerned. In the present case Mr. O’Kelly was in effect being asked to identify the speaker of words which were claimed to constitute an admission of membership of an illegal organisation and therefore the commission of an offence, namely, the offence of being such a member. Even if the question of confidence arose here, which it clearly did not because, for the reasons already stated, the identity of the person being interviewed was an essential part of the publication, the claim of privilege to refuse to answer the question was unsustainable in law although made in good faith. However, Mr. O’Kelly persisted in his attitude when the Court had very patiently explained the position to him. He was, in the opinion of this Court, rightly convicted of contempt of court and in fact has not appealed against that conviction.
While this appeal is simply against the sentence imposed, the Court has thought it necessary to go into the position in some detail as it appears that Mr. O’Kelly was somewhat confused about the legal situation generally and the views expressed by the Court may be of assistance to journalists and courts dealing with this matter in the future. In reviewing the sentence the Court has regard, of course, to the fact that Mr. O’Kelly sought to be as helpful as he could, subject to the privilege which he claimed, but must also bear in mind the fact that he persisted in maintaining this attitude when the position had been fully explained to him and he had been given every opportunity to reconsider his position. The Court also takes into account the fact that Mr. O’Kelly’s refusal to answer the question in issue, while perhaps adding some little extra difficulty to the case, did not effectively impede the presentation of the prosecution’s case. In all the circumstances the Court thinks that the sentence of imprisonment should be quashed and in lieu thereof a fine should be imposed. The order of the Court, therefore, will be that Mr. O’Kelly will pay a fine of £250 and in default of payment of this fine by Mr. O’Kelly into the office of this Court on or before the 30th day of September he will serve a sentence of three months imprisonment, but in such event the time already spent by Mr. O’Kelly in serving the sentence imposed on him by the Special Criminal Court will be taken into account.
The order of the Court will therefore be that the appeal is allowed in the terms already stated.
Mahon v Keena and Kennedy
[2007] I.E.H.C. 348
JUDGMENT of the Court delivered on the 23rd day of October, 2007.
The plaintiffs are the Members of the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter referred to as “the Tribunal”) established pursuant to Resolution of Dáil Éireann passed on 7th October, 1997 and by Instruments of the Minister for the Environment and Local Government of 4th November, 1997, 15th of July, 1998, 24th October, 2002, 7th July, 2003 and 3rd December, 2004.
The first defendant is a journalist employed by the Irish Times and the second
defendant is the editor of that paper.
On 29th June, 2006, as part of its private investigations the Tribunal wrote to Mr. David McKenna seeking information in relation to certain payments made to An Taoiseach, Mr. Ahern, T.D. The envelope which contained this letter was marked “strictly private and confidential – to be opened by addressee only”.
The final paragraph of the letter read as follows:
“This inquiry is being made of you as part of the Tribunal’s confidential inquiry in private. The fact of this letter or its content should not be disclosed to any third party save your legal adviser, if you should choose to seek legal advice in respect of this request.”
On 19th September, 2006 the first defendant received, unsolicited and anonymously, a communication concerning payments to An Taoiseach in 1993 when he was Minister for Finance. This communication took the form of a copy of the letter of 29th June, 2006 from the Tribunal to Mr. McKenna and at least one other document, being a copy of the reply to this letter from a solicitor for Mr. McKenna.
Thereafter the first defendant during 19th and 20th September, 2006 sought to verify the accuracy of the information received. During this time the first defendant discussed the matter with the second defendant on a number of occasions. As a result of all this the first defendant wrote and the Irish Times published on 21st September, 2006, a report under the headline “Tribunal examines payments to Taoiseach”, on the front page. This report read as follows:
“A wealthy businessman, David McKenna, has been contacted by the Mahon Tribunal about payments to the Taoiseach, Bertie Ahern.
The Tribunal is investigating a number of payments to Mr. Ahern in or around December, 1993 including cash payments, the Irish Times has learned.
Mr. McKenna is one of three or four persons contacted by the Tribunal concerning payments to Mr. Ahern totalling between €50,000 and €100,000. The Tribunal has been told that the money was used to pay legal bills incurred by Mr. Ahern around this time. In a letter to Mr. McKenna in June of this year and seen by the Irish Times he was told the ‘tribunal has been informed that you made payment of money to Mr Bertie Ahern, TD, or for his benefit, in or about December 1993.
‘The tribunal seeks your assistance in reconciling certain receipts of funds by Mr Ahern during this period.’
The tribunal requested a detailed statement from Mr McKenna. He was asked to name the person who requested the payment and his understanding as to why it was required. He was also asked who the payment was given to and whether it was in cash or another form.
It is understood a solicitor who was an associate and personal friend of Mr Ahern’s, the late Gerry Brennan, may have played a role in the matters being inquired into. Mr Brennan, a former director of Telecom Éireann, died in 1997.
Mr McKenna, a friend of Mr Ahern’s and a known supporter of both him and his party, was estimated to be worth more than €60 million a number of years ago. However, his publicly-listed recruitment firm, Marlborough Recruitment, collapsed in 2002.
Mr McKenna is also a friend and business associate of Des Richardson, the businessman appointed by Mr Ahern in 1993 as full-time fundraiser for Fianna Fáil and who also fundraises for Mr Ahern’s constituency operation. The tribunal was told in private that Mr McKenna was one of the people who made a payment to Mr Ahern.
Special adviser to the Taoiseach Gerry Howlin was not available for comment as he was on leave.
When contacted by The Irish Times the Government press secretary, Mandy Johnston, passed the query on to the Fianna Fáil press officer Olivia Buckley, who said Mr Ahern did not comment on tribunal matters.
Mr McKenna, when asked about the matter, said: ‘Contact my solicitor.’ His solicitor said he had no comment.
The Mahon tribunal and Mr Ahern are scheduled to make representations about the matter before the President of the High Court, Mr Justice Joseph Finnegan, next month.
In December 1993, Mr Ahern was Minister for Finance and Fianna Fáil treasurer.
The inquiries into Mr Ahern’s finances are understood to have begun after allegations were made about supposed payments to him by property developer Owen O’Callaghan in relation to the Quarryvale development in west Dublin.
Both Mr Ahern and Mr O’Callaghan have stated publicly that no such payments were made.
…”
As is apparent, this report quoted from the contents of the letter of 29th June, 2006 from the Tribunal to Mr. McKenna.
A disclosure of the contents of this letter was unauthorised by the Tribunal.
On the evening of 21st September, 2006, the Tribunal wrote to the second defendant expressing concern that the report appeared to be based on a letter from the Tribunal that was strictly private and confidential and it was claimed that the publication of this material was in breach of an injunction granted by the Supreme Court on 7th October, 2005.
By a letter of 29th September, 2006 the second defendant replied, inter alia, as follows:
“… the circumstances of this matter are straightforward. The Irish Times received an unsolicited and anonymous communication that I considered an important matter in the public interest for this newspaper to verify and publish. The vital issue of public interest which I considered I had a duty to publish was that the Taoiseach, Mr. Ahern, whilst a serving minister was in receipt of certain payments of money. The fact of these payments is a matter that this newspaper has a proper interest in publishing.
This is not a situation where an allegation of a payment has been made that is denied or is false. The fact of these payments is admitted. …
I have explained above how the matter came to be published. The Irish Times does respect the important public function of the Tribunal. This does not, however, mean that this newspaper will desist from discharging its separate duty to publish matters in the public interest. I think you might agree that no single person or entity in this State (including this newspaper) has a monopoly on supporting constitutional democracy. …”
On 25th September, 2006 the Tribunal ordered both defendants to produce to the Tribunal at its offices all documents which comprised the communication received by the Irish Times which led to the publication of the article in that paper on 21st September, 2006.
By a letter of the same date the second defendant informed the Tribunal that the Irish Times was not in a position to comply with this order as the material sought had been destroyed and furthermore the newspaper disputed the right of the Tribunal to make an order requiring the production of these documents on the grounds that the production of this material would run the risk of identifying journalistic sources, thereby putting in jeopardy the primary obligation of every editor and journalist to protect their sources of information, and that it was in the public interest that this obligation and right was protected, in the production of a story, which in itself was published in the public interest.
The material the subject matter of the anonymous communication to the defendants was destroyed after the defendants were made aware of the Tribunal’s order of 25th September, 2006 and after the defendants had taken legal advice.
On 26th September, 2006 the Tribunal issued two witness summonses under the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 – 2004 commanding both defendants to attend before the Tribunal at a public sitting on Friday, 29th September, 2006 at 10.30 and then and there to produce and hand over to the Tribunal copies of all documents which comprised the communication between the Tribunal and Mr. David McKenna received by the Irish Times which led to the publication of the article in question, to answer all questions to which the Tribunal would require answers in relation to the source and present whereabouts of the documents referred to; to answer all further or other questions to which the Tribunal would require answers relating to or arising from the articles written by the first defendant and published in the Irish Times on 21st September, 2006 and the recent correspondence to and from the Tribunal relating thereto, and to answer any further or other questions to which the Tribunal would require answers.
On 29th September, 2006 both defendants furnished written statements of their evidence to the Tribunal. On the same day both defendants appeared before the Tribunal. Because the documents sought by the Tribunal had been destroyed the defendants could not produce these as required by the summons. Both defendants declined to answer any questions which in their view would give any assistance in identifying the source of the anonymous communication. In her evidence the second defendant did acknowledge that the communication was unsolicited and anonymous.
On 5th October, 2006 the Chairman of the Tribunal delivered the ruling of the Tribunal in which having recited the foregoing facts he said, inter alia:
“On 29th September, 2006 both witnesses attended the Tribunal in answer to summonses and were apprised by me of the provisions of the Tribunals of Inquiry (Evidence) Acts and of the obligations imposed upon them by such Acts. They were also apprised of the potential consequences for them in the event that they failed to comply with the obligations imposed on them.
Upon being questioned by counsel on behalf of the Tribunal and in direct response to me both witnesses refused to answer any questions which they believed might be of assistance to the Tribunal in determining the source of the unauthorised disclosure of Tribunal material. In their evidence they confirmed that they had destroyed their copies of the documentation after they had been made aware of the existence of the orders which required their production to the Tribunal. …
It is not in dispute that both Ms. Kennedy and Mr. Keena have refused to answer questions put to them by the Tribunal and that they have failed to produce the documents which they were ordered to produce. By their own admission they have destroyed documents which were the subject of a Tribunal order of which they were aware.
The Tribunal considered that such acts and omissions amount to breaches of the Tribunal’s orders and the Tribunals of Inquiry (Evidence) Acts, 1921 to 2004. This Tribunal is not a court of law, it has no power to adjudicate upon acts which may amount to criminal wrongdoing nor has it the power to impose civil sanction upon a party who is in breach of its orders. The powers of the Tribunal are limited to conducting its inquiry, reporting upon its findings and making its recommendation to the Oireachtas.
However, the Tribunal does have the power to seek the assistance of the High Court where a person has failed or refused to comply with an order of the Tribunal or where that person has disobeyed an order of the Tribunal. The Tribunal has decided that it will exercise these powers conferred upon it by section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 to seek orders from the High Court to compel Ms. Kennedy and Mr. Keena to comply with the Tribunal’s orders which they have breached to date.
The primary concern of the Tribunal at present is to protect the integrity of its inquiries and it is of the view that this objective is best served by taking all necessary steps to establish the identity of the party or parties who furnished the documentation to the Irish Times which led to the publication of the article of 21st September, 2006.
In the event that the High Court grants such orders, the Tribunal intends to reconvene the sessions of the Tribunal to endeavour to elicit the information sought from Mr. Keena and Ms. Kennedy, failure to comply fully with an order of the High Court can amount to a contempt of court. …
The publication of the Irish Times article has given rise to considerable speculation as to the source of the unauthorised disclosures which have led to this publication. The Tribunal is concerned to note that in the press coverage of this matter it has frequently been referred to as ‘a leak from the Tribunal’, thereby carrying the inference that the Tribunal itself was instrumental in breaching the confidence of those parties with whom it had dealings. Any such conduct would be a gross dereliction of duty on the part of the Tribunal or any of its personnel.
The Tribunal was appointed under the following resolution of both Houses of the Oireachtas in order to inquire into and report upon the current allegations of corruption. A serving High Court Judge, Mr. Justice Feargus Flood was appointed as sole Member of the Tribunal thereby signalling to the public that the matter would be inquired into in a totally independent, fair and impartial way. The current Tribunal Members are all serving members of the judiciary, the standards of probity which we have applied to our task as members of this tribunal are no less than those which we apply in our judicial office.
The Tribunal rejects the inference made that the Tribunal has leaked material to the media or elsewhere. The Tribunal is mindful of the fact that public confidence in the integrity of the Tribunal is essential if the Tribunal is to serve the purpose for which it was established. Any suggestion that the Tribunal was acting to single out or damage the interests of any particular individual or group is without foundation. Any person who maintains the contrary, in the absence of any evidence whatsoever to support their belief, does considerable harm to the good standing of the Tribunal, which has been set up to allay public disquiet arising from allegations of corruption in the planning process. …”
Pursuant to the ruling of the Tribunal these proceedings were commenced by special summons issued on the 13th day of February, 2007 in which the reliefs now claimed in these proceedings were sought. As a result of the destruction of the documents as aforesaid, the reliefs now claimed are limited to the following:
“(a) Pursuant to section 4 of the Tribunal of Inquiries (Evidence) (Amendment) Act, 1997 (as amended):-
(i) An order compelling the first and second named defendants herein to comply with the order of the Tribunal dated 25th September, 2006.
(ii) If necessary, an order specifying a new date by which the first and second named defendants must comply with the order of the Tribunal dated 25th September, 2006.
…
(iv) An order compelling the first and second named defendants to attend before the Tribunal on such date and at such time as this honourable court may direct and then to answer all questions to which the Tribunal may require answers in relation to the source and present whereabouts of the documents mentioned in the witness summons dated 26th September, 2006.
…
(vi) An order compelling the first and second named defendants to attend before the Tribunal on such date and at such time as this honourable court may direct and then to answer all further questions to which the Tribunal may require answers.
(vii) Such further relief as shall seem appropriate to this honourable court so as to enable the order of the Tribunal dated 25th September, 2006 and the two witness summonses dated 26th September, 2006 to have full effect.”
ISSUES
The evidence on affidavit, the written submissions, and the oral submissions by Mr. McDonald S.C. for the Tribunal and Mr. McGonigal S.C. for the defendants require this Court to consider and determine the following issues:
1. Does the Tribunal have the necessary legal power to conduct an inquiry to ascertain the source of the unsolicited and anonymous communication to the Irish Times and did the Tribunal have power to summons the defendants to appear before it to produce and hand over the documents which were the basis of the communication to the Irish Times and to answer the questions of the Tribunal in respect of which the Tribunal seeks the relief in these proceedings?
2. Is the Tribunal entitled to conduct investigations in private and does the Tribunal have a right to impose an obligation of confidentiality in respect of communications from it to persons with whom it wishes to make inquiries as part of its private investigation and in respect of communications received and documents furnished from persons to the Tribunal, and is the Tribunal entitled to enforce such an obligation of confidentiality against third parties who come into possession of materials in respect of which aforesaid the Tribunal asserts an obligation of confidentiality?
3. If the Tribunal has the necessary legal powers to conduct the aforesaid inquiry and to summons the defendants as aforesaid and if the Tribunal is entitled to enforce an obligation of confidentiality against third parties, including the defendants in this case in respect of communications of the sort at issue in these proceedings, how is that right of the Tribunal to be balanced against the defendants’ right to freedom of expression as guaranteed in Article 40.6.1.i of the Constitution, and article 10 of the European Convention on Human Rights and in particular the public interest in the preservation from disclosure of journalistic sources, as an essential prerequisite of a free press in a democratic society?
THE ULTRA VIRES ISSUE
The defendants submitted that the Tribunal lacked a legal power to conduct an inquiry to ascertain the source of the leak of the documents that were furnished to the Irish Times. They submitted that neither the terms of reference of the Tribunal nor the statutory powers conferred upon the Tribunal in the Tribunals of Inquiry (Evidence) Acts, 1921 to 2004, conferred such a power on the Tribunal.
It was further submitted that even if the Tribunal had such a power a prerequisite to the exercise of it, would have been to have summoned Mr. McKenna and his solicitor before the Tribunal to answer its inquiries in regard to the leak, before requiring the defendants to disclose the source of the leak or assist in ascertaining the source of the leak in circumstances where the defendants under article 10(1) of the European Convention on Human Rights enjoyed a right to refuse such disclosure or assistance.
For the Tribunal it was submitted that article J(5) of the Resolution of Dáil Éireann passed on 17th November, 2004, which is in the following terms expressly gave the Tribunal the power to conduct an enquiry to ascertain the source of the leak:
“Nothing in these amended terms of reference shall preclude the Tribunal from conducting hearings or investigations into any compliance or non-compliance by any person with the orders or directions of the Tribunal.”
It was submitted that the letter to Mr. McKenna which came into the possession of the defendants contained a specific direction that the existence of the letter and its content should be kept confidential. It was submitted that the defendants who came into possession of this communication were bound pursuant to the judgment of Keane J. in the case of Oblique Financial Services Limited v. The Promise Production Company [1994] to comply with the direction as to confidentiality. Hence the Tribunal was, under the express provision of Clause J(5) of the aforesaid terms of reference, empowered to investigate a breach of that direction.
It is further submitted that apart from this express provision in the terms of reference, s. 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 amply supplied the legal power to the Tribunal to conduct its inquiry into the source of the leak. This section reads as follows:
“4. – A tribunal may make such orders as it considers necessary for the purpose of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that court in respect of the making of orders.”
Reliance was placed in this regard upon the case of Kiberd v. Hamilton [1992] 2 I.R. 257, in which Blayney J. held that an order by the then Chairman and Sole Member of the Beef Tribunal directing the applicant in that case to appear before that tribunal and to produce material upon which articles were based and answer questions as to the source of the material, was a valid exercise of the power contained in s. 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979. It was further submitted that the tribunal as a body exercising statutory powers was entitled to exercise not only those express powers but also such other powers as were reasonably incidental or consequential to those express powers. In this regard it was submitted that the power to conduct an inquiry into the source of these leaks was necessary and consequential to the statutory powers given to carry out investigations in private into certain matters of public interest. It was further submitted that the defendants, when they appeared before the Tribunal on foot of the aforesaid summonses, had not at that stage challenged the power of the Tribunal to conduct an inquiry into the sources of the leak or to summons them to appear before it for that purpose. Nor had they invoked the judicial review jurisdiction of the High Court to challenge the power of the Tribunal in that regard. Whilst it was conceded that the failure of the defendants to have made these challenges did not give rise to an estoppel which prevented them at this stage raising a challenge to the legal powers of the Tribunal to conduct such an inquiry, the failure to have so done when opportunity presented itself in the past, was a factor which this Court should consider in assessing the merits of the challenge now made in these proceedings.
It is apparent that the letter which was sent to Mr. McKenna and which ended up in the possession of the defendants was emblazoned with the most explicit direction to observe confidentiality both as to the existence of the letter and its content. We are satisfied that this direction not only bound the recipient of the letter, Mr. McKenna, but also third parties who came into possession of it, to observe the obligation of confidentiality which attached to this communication, a topic which is dealt with later in this judgment.
Accordingly, the manifest breach of the direction in respect of confidentiality was one which we are satisfied came within the express terms of Clause J (5) of the Terms of Reference of the Tribunal. On that basis alone the Tribunal had ample power to conduct an inquiry into the source of the leak and to summons both defendants to appear before it and to produce the documents which were the subject matter of the communication to them.
In addition, we are also satisfied that s. 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 also provides an ample legal basis for the power that was exercised.
In the case of Kiberd v. Hamilton [1992] 2 I.R. 257 Blayney J. was confronted with the same ultra vires issue, in regard to s. 4 of the 1979 Act as we must now consider. In that case, the Sole Member of the Beef Tribunal, Mr. Justice Hamilton, had made an order against the applicant in the case, Mr. Kiberd, in similar terms to that addressed to the defendants in this case. Mr. Kiberd had then brought judicial review proceedings to challenge the power of the Beef Tribunal to make that order. Section 4 of the 1979 Act was relied upon as the legal basis for the power exercised. Blayney J. concluded that for a valid exercise of the power contained in s. 4. What was required was that the Tribunal, form the opinion that the order made was necessary for the purposes of the functions of the Tribunal, was made bona fide and that the opinion of the Tribunal was supported by facts and was not unreasonable. In the course of his judgment he went on to say:
“As to whether the Tribunal’s opinion is supported by the facts and is not unreasonable the position would appear to be this. The two articles which appeared in the Sunday Business Post were based upon material which had been given to the Tribunal in confidence. It was to be made available solely to parties to the inquiry. Mr. Justice Hamilton believes that if the authorship of the articles is not inquired into there is a real danger that witnesses who might otherwise have come forward will not do so and that documents which might be made available to the Tribunal will be withheld. That belief is stated at paragraph 7 of his affidavit which I referred to earlier and it was also stated by Mr. Justice Hamilton in the course of the hearing before him on 14th February, 1992 where he said:-
‘… the Tribunal is to carry out extensive inquiries into extensive allegations. It has to seek the assistance of people who can be of assistance to the Tribunal and there is a real danger that it won’t get that assistance if the material, there is any fear that the material that they would make available to the Tribunal would be disclosed to the public press before it is presented before the Tribunal and that would have an inhibiting effect on people who otherwise might be willing to assist this Tribunal. To that extent and in that context there is a possible prejudice of the proceedings before the Tribunal.’
It seems to me that there were grounds to support this view and that it was not unreasonable to entertain it. It is perfectly understandable that some people would be reluctant to make material available to the Tribunal if they thought there was a risk that it could appear in the public press before being put in evidence at the hearing of the Tribunal. And if witnesses were dissuaded from coming forward with material relevant to the inquiry, then clearly the Tribunal would be hampered in carrying out its functions in that it would be deprived of the opportunity of hearing witnesses and considering material which was of assistance to it. Apart from this, it seems to me that the Tribunal had to take steps to ensure that no further articles would be published based upon material submitted in confidence to the Tribunal. If it did nothing about the articles which had appeared in the Sunday Business Post there would be a risk of a recurrence and the step which it took by making the relevant order was for these reasons necessary in the circumstances.”
In our opinion the reasoning of Blayney J. applies with, if anything, greater force to the circumstances of this case where, in addition to the factors mentioned by Blayney J. in the foregoing passage from his judgment, additionally in this case the Tribunal has to contend with widespread media attribution of the leaks to the Tribunal itself with the additional damage this does to the Tribunal.
We are satisfied, therefore, that the Tribunal did have the necessary legal power to conduct an inquiry into the sources of this leak and to have summonsed the defendants to appear before it and produce documents.
We do not accept that it was necessary for the Tribunal before exercising its legal powers in this regard to have first examined Mr. McKenna on oath. The plain language of Clause J(5) of the Terms of Reference (part of a Resolution of Dáil Éireann) and of s. 4 of the Act of 1979 does not support any such construction. Indeed, to interpret the power conferred in either of these two instruments as requiring such a prerequisite would be to add in additional language to that used by the Oireachtas in circumstances where there is no ambiguity or lack of clarity as to the meaning of the language used in either instrument, and would be contrary to the ordinary canons of interpretation.
THE CONFIDENTIALITY ISSUE
For the Tribunal it was submitted that the Tribunal has a right to conduct its inquiry by way of a private investigative phase. In this regard reliance is placed upon the cases of Haughey v. Moriarty [1999] 3 IR 1, O’Callaghan v. Mahon [2006] 2 IR 32, and O’Callaghan v. Mahon (No. 2) (Unreported, Supreme Court, 30th March, 2007).
The defendants do not dispute the right of the Tribunal to conduct its inquiry initially through a private investigative phase.
The Tribunal submits that a necessary corollary of its right to conduct its inquiry in private is the right to impose and enforce an obligation of confidentiality on those persons with whom it deals in that phase of the inquiry and also on third parties who come into possession of material given to the Tribunal to which an obligation of confidentiality attaches. Insofar as third parties are concerned, the Tribunal places reliance upon the judgment of Keane J. in the case of Oblique Finance Services Limited v. The Promise Production Company [1994] I.L.R.M. 74.
The Tribunal further submits that the letter to Mr. McKenna which came into the possession of the defendants was a communication in respect of which an obligation of confidentiality attached to the recipient of it and also to third parties such as the defendants. The Tribunal submits that this communication satisfies the test to be met to establish an obligation of confidentiality as discussed in the judgment of Kelly J. in the case of Mahon v. Post Publications Limited (Unreported, High Court, 4th October, 2005). The Tribunal submits that this case is to be distinguished from the case of Mahon v. Post Publications Limited, (Unreported, Supreme Court, 29th March, 2007) where the Supreme Court upheld the judgment and order of Kelly J. in the High Court refusing injunctive relief to the Tribunal to enforce confidentiality of documents circulated in briefs to persons affected by a matter to be inquired into in public by the Tribunal. It submits that communications such as the ones at issue in this case which occur during the private investigative phase before a decision is taken by the Tribunal to proceed to a public inquiry are wholly different and that distinction itself was expressly referred to by Fennelly J. at paragraph 69 of his judgment where he says:
“…Clearly a matter which I wish to make perfectly clear, none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in JR324. Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or organisation. Problems arise only when information has been released or, as often happens, ‘leaked’.”
It was further submitted by the Tribunal that there is a public interest in upholding the confidentiality of the private investigative phase of the inquiry because unauthorised disclosures of information from this phase of the inquiry damages the reputation of the Tribunal itself because of the attribution of these leaks to the Tribunal itself, impairs the capacity of the Tribunal to discharge its function because of the injury to public confidence in it, with the consequence of diminution in the co-operation of the public with the Tribunal, resulting inevitably in persons being reluctant to volunteer information or documents which would be of assistance to the Tribunal in its inquiry and also risks breaching the rights of persons with whom the Tribunal is making inquiries in circumstances where these persons may be either unwilling or unable to take the necessary steps to protect their rights. It was submitted that the position of the Tribunal in its private investigative phase is totally different from that of other public bodies. Insofar as the latter is concerned, the public have both an interest and a right in scrutinising, reviewing and criticising the conduct by them of their affairs, whereas the public interest so far as the private investigative phase of the work of a tribunal is concerned is precisely the opposite, namely the public interest is in the maintenance of confidentiality of the inquiries being conducted at that stage. Thus it was submitted that the line of authority emanating from the judgment of Mason J. in the High Court of Australia in the Commonwealth of Australia v. Fairfax [1980] 147 C.L.R. 39, cannot apply, as mere disclosure of itself damages the public interest in the maintenance of confidentiality of the Tribunal’s private investigative phase, whereas mere disclosure in respect of the affairs of public bodies is, as was said, no vice because the public are entitled to be aware of what public bodies are doing and to have their affairs subject to public discussion, scrutiny and review.
For the defendants it was submitted that the judgment of the Supreme Court in Mahon v. Post Publications Limited did apply and it was submitted this was clearly contemplated to be so by Fennelly J. where he expressly refers – “Problems arise only when information has been released or as often happens ‘leaked’.” It was submitted that the documents which were the basis of the anonymous communication to the defendants were thus not confidential and could not be made so by the Tribunal in the same way that the Tribunal could not impose an obligation of confidentiality in respect of material circulated in briefs as was the case in the Sunday Business Post case. It was submitted that as this material was “leaked” there was no invasion by the defendants of the workings of the Tribunal and although accepting that in principle confidentiality applied to the private investigative phase it was submitted that once this material was leaked the Tribunal could not then restrain its further disclosure, unless that further disclosure interfered with the functions of the Tribunal, but in this regard there was no evidence of any such interference. It was submitted that in principle there was no difference between the disclosure in this case resulting from a leak which did not interfere with the functions of the Tribunal and the material leaked from the circulated briefs in the Sunday Business Post case. Hence it was submitted that material once released or leaked in this way and in the absence of any evidence of interference with the functioning of the Tribunal, the Tribunal could not thereafter assert any confidentiality in respect of that material and could not seek to have its further disclosure restrained. It was further submitted that the Tribunal had no standing to protect the rights of persons affected by disclosure. It was a matter for these parties to take such steps as were appropriate to assert their own rights, and furthermore, there was no evidence in the case to establish that the rights of third parties would be damaged.
We are satisfied that the Tribunal does enjoy a right to impose confidentiality in respect of material assembled in its private investigative phase. This right is a corollary of its right to conduct an inquiry by way of private investigation. We are of opinion that the functioning of a private investigative stage of an inquiry would be grossly impaired without confidentiality which can be enforced. The assurance of confidentiality is essential in gaining the co-operation of the public and in having information and documents volunteered to the Tribunal which are relevant to and of assistance in its inquiries.
Whilst it is the case as was remarked by Fennelly J. in the Sunday Business Post case the Tribunal may enjoy “the ordinary right to confidentiality”, we are of opinion that the express provision in the Dáil resolutions for a private investigative phase, necessarily carries with it an obligation on the part of the Tribunal to impose confidentiality in these inquiries and the materials they yield and with that, the right to enforce that obligation of confidentiality against those who would breach it. It necessarily follows that the obligation to observe confidentiality affects all persons who come into possession of material which has the indicia of Tribunal confidentiality on it.
Material which is to attract this entitlement must as discussed in the judgment of Kelly J. in the Sunday Business Post case have about it the necessary attributes of confidentiality. In essence these are, that the nature of the material must have about it a quality of confidentiality and its release must have been unauthorised by the party who is entitled to assert an obligation of confidentiality over it.
In this case there is no doubt the material was “leaked”. We are satisfied on the evidence that the Tribunal did not in anyway authorise the release or “leaking” of this material.
Thus the mere fact that it was “leaked” in our view distinguishes the disclosure of this material from material which is authorised by the Tribunal to be released and circulated such as where evidence is circulated in the form of briefs in advance of a public hearing.
We are satisfied that the documents as described in evidence i.e. the letter to Mr. McKenna together with the envelope in which it came were clearly marked as being confidential material, both as to the existence of the document and its content. Furthermore the content of the letter would be such as to impress any reasonable reader of it, that the communication contained in it was of a confidential nature.
We are satisfied therefore that these documents had about them the attributes of confidentiality and the Tribunal was entitled to impose an obligation of confidentiality in respect of them on the designated recipient of the document and all others who came into possession of it or them. Having concluded that the leaking of this material was not authorised by the Tribunal, we are satisfied the right to enforce confidentiality in respect of it was not lost by virtue of that leaking.
As already said maintenance of confidentiality limited though it may be is essential to the proper functioning of the Tribunal in a private investigative phase. Hence the leaking of material as occurred here is in itself in our view damaging to the proper functioning of the Tribunal.
Much stress was laid by Mr. McDonald S.C. for the Tribunal on the injury to the reputation of the Tribunal caused by the widespread attribution of the leak to the Tribunal itself. Insofar as there is injury to the personal reputations of a member of the Tribunal or its staff, the view of this court is that it is a matter for these individuals themselves to take such steps to protect their reputations. Insofar as there is by virtue of these leaks and the attribution of them to the Tribunal injury to the reputation of the Tribunal as a statutory body, that injury is to be measured solely by reference to any interference with the capacity of the Tribunal to discharge its function.
We are satisfied that a perception amongst the public that material provided under an assurance of confidentiality to the Tribunal could be leaked to the media would be very damaging to the proper functioning of the Tribunal. Inevitably this would lead to a loss of public confidence in the Tribunal and would deter members of the public from voluntary cooperation with the Tribunal which would hinder the Tribunal in pursuing the inquiries directed by the Oireachtas. Thus we are satisfied that the disclosure or leaking of this material as occurred here of itself inflicts sufficient damage on the capacity of the Tribunal to properly function as to warrant the upholding and enforcement of the confidentiality asserted by the Tribunal.
We are satisfied that a Tribunal in a private investigative stage of an inquiry is not in the same position as some other public body whose functioning could or should ordinarily be subject to public scrutiny and in respect of whom there could be no general restraint on disclosure. The opposite is the case here. Thus the line of authority emanating from the judgment of Mason J. in the High Court of Australia in the Fairfax case to the effect that mere disclosure of the functioning of public bodies is no vice and cannot be restrained in the absence of some other evidence of injury to the public interest, can have no application to this Tribunal when conducting its inquiry in a private investigative phase.
BALANCING THE RIGHTS OF THE PARTIES
Having concluded that the Tribunal did have the legal power to conduct an inquiry to ascertain the source of this leak and to have summoned the defendants to appear before it to answer its inquiries and to produce the documents in question, and having further concluded that the Tribunal is entitled to impose an obligation of confidentiality in respect of the communications given anonymously and unsolicited to the defendants and to seek to have that enforced, we now move to consider how the Tribunals right to enforce confidentiality in respect of this material is to be balanced against the defendants entitlements as journalists, pursuant to Article 10 of the European Convention on Human rights not to have to disclose their sources.
Article 10 of the European Convention on Human Rights is as follows:-
“Freedom of Expression
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, 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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In the written submissions of both parties and the oral argument before us a great many cases decided in the European Court of Human Rights relating to the issue of freedom of expression were opened to the court.
In summary these were as follows:
1. Sunday Times v. The United Kingdom (1979) 2 EHRR 245, in which it was held that an injunction ultimately granted by the House of Lords restraining publication of an article in the Sunday Times written to assist parents of children injured by the thalidomide drug to obtain more favourable settlements of their actions was an interference with the Sunday Times freedom of expression and not justified under Article 10(2) which permits such restrictions “as are prescribed by law and necessary in a democratic society … for maintaining the authority and impartiality of the judiciary”. The court decided that though prescribed by law and for the purposes of maintaining the authority of the judiciary the restriction was not justified by a “pressing social need” and could not therefore be regarded as “necessary” within the meaning of Article 10(2).
2. In Lingens v. Austria (1986) 87 EHRR 329 the European Court of Human Rights held that a conviction of a journalist for criminal defamation for having written two articles alleging that the Austrian chancellor had protected former members of the Nazi SS for political reasons and for facilitating their participation in Austrian politics was a violation of Article 10.
3. In Castells v. Spain (1992) 14 EHRR 445, it was held that the conviction of the applicant for publishing in a weekly magazine an article which insulted the government with the penalty of disqualification from public office, violated the applicants freedom of expression within the meaning of Article 10.
4. In Goodwin v. The United Kingdom (1996) 22 EHRR 123, the applicant journalist had received an anonymous communication containing sensitive information regarding the financial status of a company known as Tetra. Information he was given appeared to come from a corporate plan document that was “strictly confidential”. Tetra obtained a High Court interim injunction restraining the publication of the information and additionally the High Court ordered the applicant to disclose his source. On appeal both to the Court of Appeal and the House of Lords, the disclosure was upheld and in addition the applicant was fined £5,000 for contempt of court in refusing to comply with the order to disclose his source. The European Court of Human Rights held that there had been a violation of the applicants right to freedom of expression as contained in Article 10.
5. In Dehaes and Gijsels v. Belgium (1997) 25 EHRR 1 the court held that, apart from one minor aspect of the case, a judgment given by the Belgian courts for defamation against the applicants, in respect of articles they had published accusing four Belgian judges of bias in the handling of a case, was a violation of the applicants freedom of expression as guaranteed by Article 10.
6. In Fressoz and Roire v. France (1999) 31 EHRR 28 the court held that the applicants convictions for handling photocopies of tax returns obtained through a breach of professional confidence by an unidentified tax official infringed their right to freedom of expression.
7. In Tromsov v. Norway (1999) 29 EHRR 12 the court held that the judgment for defamation against the applicants in respect of an article published by them alleging breaches of seal hunting regulations was an unjustified interference with the applicants right to freedom of expression.
8. In Radio Twist AS v. Slovakia (Unreported, European Court of Human Rights, 19th December, 2006) the court held that the respondent violated Article 10 of the Convention by permitting a civil action against the applicant in respect of the broadcasting of telephone conversations between two politicians which a third party had unlawfully obtained.
9. In Tonsbergs & Blad A/S v. Norway (Unreported, European Court of Human Rights, 1st March, 2007) the court held that an award of damages for defamation given by domestic courts in respect of an article published in a newspaper to the effect that a prominent businessman in Norway appeared on a list drawn up by a Municipality, of persons considered to have breached the permanent residence requirements, violated Article 10 of the Convention.
10. In Kwiecien v. Poland, (Unreported, European Court of Human Rights, 9th April, 2007) the court held that a decision and sanction of a domestic court against the applicant for an open letter calling on the head of a district office to withdraw from an election was a violation of Article 10 of the Convention.
11. In Ustun v. Turkey, (Unreported, European Court of Human Rights, 10th May, 2007) the court held that the conviction and sentencing of the applicant for publishing a book about the life and political views of a left wing revolutionary cinema artist violated Article 10 of the Constitution of the Convention.
The foregoing, as is obviously so, is the briefest of summaries of the outcome of these cases. Throughout all of these cases however great emphasis is laid upon the importance of the right to freedom of expression in a democratic society. Going hand in hand with this, is the critical importance of a free press as an essential organ in a democratic society. An essential feature of the operation of a free press is the availability of sources of information. Without sources of information journalists will be unable to keep society informed on matters which are or should be of public interest. Thus there is a very great public interest in the cultivation of and protection of journalistic sources of information as an essential feature of a free and effective press. As between the parties in this case there was no dispute whatever concerning these fundamental aspects of the right to freedom of expression as set out in Article 10 of the Convention.
These cases also illustrate on the part of the European Court of Human Rights a stalwart defence of freedom of expression, and a trend of strictly construing potential interferences with that right that might claim justification under the variety of justifiable interferences set out in Article 10(2). This approach by the European Court of Human Rights is particularly evident in cases involving publications relating to political matters. There was no reported case opened to us in which the European Court of Human Rights has upheld an order of a domestic court ordering the disclosure of a journalistic source. In only one case, a decision of the United Kingdom Court of Appeal in the case of Ashworth Hospital Authority v. MGN Limited (2001) WLR 2003 is there a judgment of a court directing disclosure of a journalistic source, having considered the balancing under Article 10, of the right to non-disclosure against the competing interest in that case namely the protection of confidential information held by a hospital authority.
It is important to bear in mind that where a journalist asserts the right not to disclose or the privilege against non-disclosure, invariably this is not the only right or interest in issue. As in this case the rights and interests of other persons or institutions have also to be considered.
That is an exercise that in a democratic society based on the rule of law is reserved to courts established by law for that purpose.
As the history of these cases show journalists should have little to fear and certainly no grounds for thinking that their right not to reveal sources does not or would not be given just consideration and vindicated where appropriate.
Against this background the deliberate decision taken by the defendants to destroy the documents at issue in this case after they had received a summons to produce these to the Tribunal and after having taken legal advice, is an astounding and flagrant disregard of the rule of law.
In so doing the defendants cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of all concerned. This is a role reserved by the Constitution and the law exclusively to the courts. The defendants then proceeded to determine the issue summarily in their own favour, without any consideration of the rights of others or any opportunity given to them to make their case known.
It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy.
Journalists must realise that paying lip service to democratic values is not enough. They are bound as are all other members of society including politicians and judges, to name but a few, by the Constitution and the laws, to obedience to the law. Journalists are not above the law nor are they entitled to create for themselves, where their own particular vocational interest is involved, a reserve into which the law may not go. Neither are they entitled to usurp the function of this Court as happened here.
Although this reprehensible conduct is not brought before this court as a contempt issue and hence no sanction can be imposed in respect of it, nevertheless, the destruction of these documents by the defendants is a relevant consideration to which great weight must be given in striking the correct balance between the rights and interests at issue on this application.
The starting point in this balancing exercise is the realisation that in a democratic society the right to freedom of expression is of the highest order of importance. Thus the non-disclosure of journalistic sources enjoys unquestioned acceptance in our jurisprudence and interference in this area can only happen where the requirements of Article 10(2) as set out above are clearly met. The restriction on the exercise of freedom of expression by the disclosure of journalistic sources contended for by the Tribunal must be demonstrated by the Tribunal to be warranted in the context of Article 10(2). First it must be demonstrated that the basis for the interference is one which is “prescribed by law”; secondly, is “necessary in a democratic society” in the interests in this case of “preventing the disclosure of information received in confidence”.
As already discussed in this judgment we have concluded that the Tribunal does have the legal right to impose and seek to enforce confidentiality in respect of the material which was the subject matter of the communication to the defendants and hence, there is a sound legal basis in law, to justify the interference sought. Additionally in our view, the test set out in the Sunday Times case to satisfy the requirement “prescribed by law” namely that the law must be adequately accessible, i.e. the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case and that the norm or rule is formulated with sufficient precision to enable the citizen to regulate his conduct, has been satisfied.
The next question which arises is whether or not it is demonstrated that the relief which is sought in these proceedings, restricted as it is now to simply a direction to answer questions, can be said to be necessary in a democratic society for the prevention of the disclosure of information received in confidence in this case.
It has to be remembered that the communication in respect of which the defendants refused to answer questions in order to protect the identity of the source is in fact an anonymous and unsolicited communication. In the course of submissions the defendants vividly and eloquently described the nature of and importance of cultivating and protecting sources. Inter alia they were described as “delicate blooms” which required exquisite care to ensure their survival and vitality. The defendants further submitted that any risk of disclosure of the identity of sources gave rise to a “chilling” effect so far as the flow of information to newspapers was concerned. Additionally, it was submitted that if either of the defendants was perceived as a journalist who was willing to disclose or assist in the disclosure of sources, their reputations as journalists would be destroyed and their capacity to earn their livelihood in their chosen profession would be grossly impaired or utterly destroyed.
The Tribunal did not take issue with the defendants on any of these contentions but submitted that in this case they were not dealing with a “delicate bloom” which either required cultivation or protection. In their submission, the source of the information in this case being anonymous was entirely outside the class of person requiring protection as a journalistic source.
This Court has to consider whether the relief which is sought in this case, namely that the defendants be directed to answer questions concerning the nature of the documents received by them would or could lead to the identification of the source of this material. In our view this is an essential step in assessing whether or not the restriction on the right to freedom of expression contended for by the Tribunal is “necessary in a democratic society … for preventing the disclosure of information received in confidence”.
In this context the destruction by the defendants of these documents becomes of direct relevance.
In respect of anonymous communications, in principle, either the privilege against non-disclosure should not be invoked at all or, if it is to be invoked, only the slightest of weight should be attached to it for the plain reason that if a journalist cannot identify the source of his information it is nonsense to say that there is a professional obligation to protect that source from disclosure.
If, of course, the questions to be asked could or would lead to the source or give assistance which could result in the identification of the source then we are satisfied that the privilege against disclosure can be invoked.
In this context the court must consider the likelihood, in the circumstances of this case, of the potential answers to the questions to be asked leading to an identification of the source.
Because of the destruction of the documents neither the Tribunal nor this Court has the opportunity of examining these documents. Furthermore, these documents cannot be subject to any form of forensic testing which could assist in leading to the source. Thus, the only means the Tribunal has of learning anything about these documents is through the questions which it proposes to put to the defendants. The content of the letter addressed to Mr. McKenna and his reply are of course well known to the Tribunal, therefore nothing is to be revealed in that regard. The only additional information that can be revealed by the defendants is whether or not the version or copy of the letter seen by them had the Tribunal’s letter heading on it or whether it was signed. All that this information would do is to indicate whether or not the copy of the letter furnished to the defendants came from inside the Tribunal or from elsewhere. Insofar as answers to these queries would tend to indicate that the documents furnished to the defendants came from elsewhere, it is clear from the evidence given that Mr. McKenna and his solicitor vehemently deny any role in furnishing these documents to the defendants. Thus, in all probability, having regard to the fact that the documents are now destroyed, the most that can be achieved by way of answers to questions proposed to be asked by the Tribunal of the defendants is to indicate that as a matter of probability the Tribunal was not the source of the leak. Beyond that the source will remain, as of course the source always intended, shrouded in impenetrable mystery with its anonymity safely beyond the reach of forensic inquiry.
In these circumstances, we are of opinion that because of the destruction of the documents and the consequent deliberate frustration of forensic inquiry thereby brought about, there is little or no risk of the questions proposed to be asked leading to the identification of the source who provided these documents to the defendants. Because of this we are of opinion, therefore, that very slight weight indeed is to be attached to the defendants’ privilege against disclosure of their sources in this case.
On the other hand, there is the potential of a real benefit to the Tribunal if the answers to the questions give rise to an indication that the Tribunal was not the source of the leak.
This is an important matter. In a democratic society inquiries into matters of public interest conducted at the behest of Parliament are an essential tool in the formulation of legislative policy. In our jurisdiction this is done through the Tribunal of Inquiry Acts. A feature of this form of inquiry as set out in the Terms of Reference of the Tribunal is the conducting of an inquiry through a private investigative phase. Essential to the success of this scheme is the maintenance of confidentiality as discussed above. In our view, nothing could be more damaging to the capacity of the Tribunal to carry out its functions than the perception that the Tribunal itself leaked information given to it in confidence. Thus, where a leak occurs as in this case, the Tribunal must inquire to establish the source of that leak as it has sought to do. Establishing that the Tribunal itself was not the source of the leak is in itself a legitimate aim and a pressing social need. At this stage, having regard to the destruction of the documents, the only means remaining to pursue that aim is by way of the proposed questioning of the defendants. If a Tribunal is not enabled to pursue the aim of establishing that it was not the source of the leak, even if it is not able to ultimately identify the source of the leak, the process of public inquiry in private investigative phase will be damaged to such an extent that there would be an inevitable loss of confidence in the integrity of the process and in all probability a significant reduction in the voluntary co-operation of the public in its inquiry.
In the circumstances of this case we conclude that the defendants’ privilege against disclosure of sources, is overwhelmingly outweighed by the pressing social need to preserve public confidence in the Tribunal and as there is no other means, by which this can be done other than the enquiry undertaken by the Tribunal, we are of opinion that the test “necessary in a democratic society” is satisfied.
Accordingly, we will grant the relief sought.
Mahon v Post Publications
[2007] I.E.S.C. 15
JUDGMENT of MR. JUSTICE FENNELLY delivered the 29th day of March, 2007
1. In this appeal, the Planning Tribunal asks the Court to hold that it has power to require that documents which it circulates prior to public hearing of its modules be treated as confidential and to make general orders restraining the defendant and, in effect, all media of communication, from publishing them until they are disclosed at a public hearing.
The Proceedings
2. The plaintiffs are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The Tribunal was established pursuant to an instrument of the Minister for the Environment and Local Government dated 4th November 1997 by virtue of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and a resolution passed by Dáil Eireann on 7th October 1997 and by Seanad Eireann on 8th October 1997. The terms of reference of the Tribunal have been amended by a number of subsequent ministerial instruments. I will refer to the plaintiffs as the Tribunal.
3. The defendant is a limited company. It is a subsidiary of Thomas Crosbie (Holdings) Ltd, which publishes “The Examiner.” It also publishes the “Sunday Business Post.”
4. The present proceedings commenced on 17th December 2004 when Finnegan P., on an ex parte application, granted to the Tribunal injunctions in terms set out in a plenary summons issued on 20th December 2004. By notice of motion served for 17th January 2005 the Tribunal applied for interlocutory injunctions in the same terms. Following adjournments to facilitate an exchange of affidavits, the matter came on before Kelly J. in the High Court. By agreement the hearing of the motion was treated as the trial of the action. There were no pleadings other than the plenary summons. In the absence of a statement of claim or of an order granting leave in judicial review proceedings, the issues must be gleaned from the affidavits filed in respect of the application for an interlocutory injunction. The injunctions sought in the proceedings, and granted by Finnegan P., were:
“An order restraining the Defendant, its servants or agents (and all other persons having knowledge of the granting of the Order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal;
Further or in the alternative an injunction restraining the Defendant its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal
(a) before such information and/or the contents of such document has been disclosed or read at a public hearing of the Tribunal;
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information and/or document.”
5. The Tribunal’s motion was grounded on an affidavit of Ms Marcelle Griffin (hereinafter “Ms Griffin”). Mr Anthony Dinan swore an affidavit on behalf of the defendant and Ms Griffin swore a replying affidavit. A comprehensive summary of the evidence and, to a considerable extent, argument is to be found in the judgment of Kelly J. The entire case depends on the confidentiality of certain documents circulated by the Tribunal.
6. The Tribunal expounded its policy in respect of confidentiality in a protocol of 14th January 1998. The Tribunal appreciated the concern with regard to personal and commercial confidentiality of persons wishing to assist it in its work. To protect these “legitimate concerns,” it outlined a number of measures it proposed to adopt. Principally, these were:
7. The Tribunal would return all original documents to their owners on conclusion of its work. In addition:
· All copies of documents containing confidential, commercially sensitive or personal information would be destroyed on conclusion of its work;
· Confidential information not relevant to the inquiry would not be disclosed to any outside party;
· Documents containing both confidential, commercially sensitive or personal information and other information, which was relevant, would have irrelevant information blanked out (“redacted”).
8. The Tribunal protocols on confidentiality are set out in full in the judgment of Geoghegan J. Nonetheless, the Tribunal has, since its establishment, experienced considerable difficulties in respect of unauthorized disclosure of confidential information. The Tribunal considers that such disclosure causes delay and damage to it in its work. Ms Griffin relates, in her affidavit, a number of instances of serious complaints from individuals, who were in communication with it for the purpose of its work and who claimed that their rights had been infringed by such unauthorized disclosure.
9. Ms Griffin describes the Tribunal’s modus operandi, which is by now very well known from various judgments of this Court. It divides its work into a first, investigative stage and a second hearing stage. The Tribunal conducts the first stage entirely in private. The second consists of public hearings. Ms Griffin explains that, in the first stage, the Tribunal seeks statements from persons who may be called as witnesses at public hearings. The confidentiality of this stage is essential to the work of the Tribunal. All those participating are made aware of this stipulation. Persons assisting the Tribunal expect and may demand confidentiality as a condition of their cooperation and will be dissuaded by the publication of “leaked” information in the news media. In addition, and most materially for the purpose of the present appeal, the Tribunal circulates a set of documents or a “brief” some six weeks in advance of the commencement of public hearings in relation to one of its modules. These briefs are circulated to a carefully selected and limited number of persons. The purpose is to enable those persons to prepare for the public hearing. In every case, such persons are expressly notified in writing that the circulation is on a strictly confidential basis. The terms of the confidentiality requirement, as set out in the letter accompanying the documents circulated in October 2004, which gave rise to the present proceedings, was:
“The enclosed documents remain the property of the Tribunal and the information contained therein is confidential to the Tribunal and may not be disclosed to any person other than your legal advisor, who is likewise restrained from disclosing the contents thereof. You must retain the original documents in your possession. If it is your intention to copy any of the documents enclosed, you must seek the consent of the Tribunal prior to doing so.”
10. Ms Griffin describes specific instances of individual complaints arising from leaks. On 10th December 1998, the then Sole Member wrote to the editors of a number of newspapers, including the Sunday Business Post, expressing concern at “the continuing publication in the print media of confidential material provided by the Tribunal and circularized by the Tribunal on a strictly confidential basis.” It required an undertaking on the part of each addressee that it would not publish any confidential material which the Tribunal had circulated in confidence. No undertakings were given.
11. On 11th December 1998, the Tribunal sat in public to consider whether to make an order pursuant to the provisions of section 4 of the Tribunals of Inquiry (Evidence) Act, 1979, whose terms I will describe later, against a number of newspapers and broadcasters. The then Sole Member delivered a lengthy ruling on 18th December 1998, reiterating the position already taken that all documentation and information relating to its inquiry work was confidential, indication that it was considering the making of an order against one newspaper company and concluding:
“The Tribunal intends instituting proceedings in the High Court in an effort to prevent any further unauthorized disclosure of confidential Tribunal information.”
12. In late 1998, following complaints from the Tribunal to the Commissioner of An Garda Síochána, a garda investigation into leaks took place. It lasted four months. Ninety eight people were interviewed including four journalists. The journalists refused to cooperate or to reveal their sources of information. Further unauthorized publication in 2001 led to a public statement by the Sole Member.
13. On 24th January 2001, the Sole Member made a public statement at a sitting of the Tribunal expressing “concern about the content of some recently published newspaper articles.” The statement did not specify the articles or their publishers but explained that the Tribunal found it appropriate from time to time to seek discovery of bank records of individuals and companies but that this did not mean that such individuals had been guilty of any impropriety. The Sole Member also said that the Tribunal had recently learned that a memorandum from the legal department of a bank had come into the possession of a national newspaper, but that the newspaper in question had undertaken not to publish the information. On 26th January 2001, the Tribunal wrote to the solicitor for the defendant in reference to publication by Mr Frank Connolly in the Sunday Business Post entitled of an article entitled: “Flood Probes TDs’ Bank Accounts.” The letter stated that the article appeared to have been based on documents compiled from a series of letters written to a financial institution by the Tribunal. The letter cited in full the Tribunal’s statement of confidentiality. It complained that the newspaper was undoubtedly aware of that policy and that publication of the article constituted a very serious breach of the confidentiality of the Tribunal.
14. It does not appear from Ms Griffin’s affidavit that any further similar publications occurred between 2001 and October 2004, when the story leading to the present appeal commences. As will become apparent, the injunction sought by the Tribunal does not relate to this material.
15. On 15th October 2004, the Tribunal circulated the brief for its pending “Coolamber” module. It included the confidentiality stipulation quoted above.
16. On 17th October 2004, the Sunday Business Post published two articles, written by Barry O’Kelly, entitled: “Jim Kennedy’s Pipe Dream;” and “Fifty Councillors named in new planning tribunal list.”
17. On 21st October 2004, the Tribunal wrote to Mr O’Kelly at the Sunday Business Post as follows:
“I refer to your article in the Sunday Business Post dated 17th October 2004 entitled “Jim Kennedy’s Pipe Dream.”
I am directed to request that you furnish to the Tribunal:-
1. The identity source or sources of the information contained in your article;
2. Any documentation or other material furnished to you in relation to the article.
Please reply within four working days hereof.”
18. Mr O’Kelly was the author of a further article which appeared in the Sunday Business Post for 24th October 2004, entitled: “Lenihan, Flynn in new payments revelations.” That article included extracts from a confidential statement furnished to the Tribunal by Mr Jude Campion and was accompanied by a photograph of an extract from Mr Campion’s statement. The Tribunal’s date stamp and the word “confidential” also appeared. Ms Griffin has sworn that the statement of Mr Campion, like other Tribunal documents, had been circulated to a limited number of persons, under the usual terms as to confidentiality, on 15th January and 21st October 2004.
19. Ms Griffin draws attention to a particularly disturbing feature of this publication. Mr Campion gave evidence in public at the Tribunal on 14th, 15th and 19th October 2004. During those sittings, the Tribunal directed that the names of three specific persons mentioned in Mr Campion’s statement should not be disclosed but that they be referred to as A, B and C. Mr O’Kelly was clearly aware of this direction. His article said: “The names of the TDs ……were left unsaid at the request of the Tribunal. Quite plainly, Mr O’Kelly was fully aware that the Tribunal regarded as confidential both the statement of Mr Campion and the names of the three TD’s mentioned. The Tribunal had written to the newspaper on 21st October. Mr O’Kelly was blatant in his defiance of the claim of confidentiality.
20. Mr O’Kelly phoned the Tribunal on 26th October 2004 to state that he could not comply with the written request that he name his sources. He was relying on journalist’s confidentiality. The Tribunal received two serious written complaints on behalf of persons who had been circulated with documents over which they claimed to place a requirement of confidentiality. These are cited more fully in the judgment of Geoghegan J. The Tribunal wrote to all recipients of the “Coolamber Brief” seeking to ascertain the source of the leak. All those persons denied that they had been responsible for any disclosure.
21. Correspondence was then exchanged between the Tribunal and solicitors for the defendant. I do not think it is necessary to relate it in detail. The Tribunal unsuccessfully sought disclosure of Mr O’Kelly’s sources. They also asked for an undertaking that the documents in his possession be kept and not destroyed. The defendant’s solicitors took the position that only Mr O’Kelly knew the source of the information and that he relied on journalist’s privilege and that they had conveyed the Tribunal’s request not to destroy the documents to their client. The solicitors informed the Tribunal that the documents had been destroyed by Mr O’Kelly. He asserted that their return to the Tribunal might reveal the source of his information.
22. The Tribunal summoned Mr O’Kelly, Mr Dinan and Mr Richard Martin, solicitor, to appear at a hearing on 1st December 2004. Mr O’Kelly, having confirmed that he had received appropriate legal advice, declined to produce the copy of Mr Campion’s statement, which was in his possession. He said that he had destroyed it. At a subsequent hearing, Mr O’Kelly refused to reveal his sources. Mr Dinan declined to give an undertaking on behalf of the Sunday Business Post, that it would not publish “information or documentation in relation to which it [Sunday Business Post ] is aware that the Tribunal has directed that such information or documentation should remain confidential……”
23. Ms Griffin has sworn, in her grounding affidavit on behalf of the Tribunal that, “if an injunction is not granted against [the defendant] then that newspaper will continue to publish confidential information ……” She continued: “The Tribunal is gravely concerned that, based on its experience to date, some or all of the documents will be deliberately leaked by persons to whom they have been circulated in a deliberate attempt to undermine the Tribunal.” (emphasis added). Thus, the Tribunal makes it clear that it attributes the leaks to the persons to whom it has circulated information. It does not suggest that they come from Tribunal sources.
24. Mr Dinan, in his affidavit on behalf of the defendant contests the jurisdiction of the Tribunal to demand that Mr O’Kelly reveal his sources or to demand that newspapers give undertakings as to future conduct. He disputes that the relevant information is or was confidential or that the Tribunal was entitled to maintain any claim of confidentiality in respect of it. Mr Dinan explains the attitude generally taken by journalists to the revelation of sources. It is that this is a principle which must be maintained in the public interest: “It frequently falls to journalists to reveal matters of which the public ought to be aware, but which journalists have obtained from sources who have provided the same only on the basis of a guarantee that their identity will not be revealed. If that guarantee was broken in any given cases, then the likelihood of other material being provided in future……would become very small indeed.”
25. Mr Dinan went on to swear that the publication of the articles of which the Tribunal complained was in the public interest. He explained that the attitude of the defendant newspaper was that “the decision of the Tribunal to declare a document confidential could not of itself be regarded as determinative of any decision as to whether not to publish. This decision must be made only by the editor of the newspaper in the proper context where all matters are considered.”
26. More generally, Mr Dinan swore:
“I say that the difficulty with the order which the Tribunal is now seeking to have made is that it is attempting to bind the newspaper in future in respect of unspecified documents in circumstances where the newspaper in future might or might not know that any particular ruling on confidentiality has been made by the Tribunal.”
24. Ms Griffin, in her replying affidavit, responds to Mr Dinan’s contention that publication was in the public interest by asserting that the defendant is not motivated by any public interest but rather by the desire to increase circulation.
The High Court Judgment
25. Kelly J, in a comprehensive judgment delivered on 4th October 2005 [2005] IEHC 307, rejected the Tribunal’s application.
26. He was, he said, concerned only with future publications. He noted that there was little factual dispute between the parties. The Tribunal was asserting confidentiality in respect of everything contained in a brief, but made no distinction based on whether information or documents had or had not been obtained on the basis of an assurance of confidentiality. He summarised the Tribunal’s case as follows:
“The Tribunal contends that it has the entitlement to create an obligation of confidentiality in respect of material contained in the brief circulated by it, regardless of the source or nature of the documents or information which it contains. It is that assertion of confidentiality which it seeks to enforce in these proceedings. There can be little doubt of this when one considers the affidavit evidence and in particular paragraph 7 of the replying affidavit of Ms. Gribbin and the form of the orders which I am asked to make. “
27. The defendant, on the other hand contested the power of the Tribunal to direct that documents or information should be confidential, in the manner claimed. Furthermore, it said that the documents do not have the necessary quality of confidentiality. The defendant argued that the reliefs sought were not specific enough, because the documentation or information was not readily identifiable. It submitted, in particular, that an order as sought would fetter its constitutional rights pursuant to Article 40.6.1 of the Constitution.
28. Kelly J commenced his analysis by pointing out that the injunctions were an attempt to restrain an organ of the press from publishing material. Following a review of a number of decisions of the High Court and the Supreme Court with regard to the interpretation of Article 40.6 of the Constitution and of the European Court of Human Rights regarding Article 10 of the Convention, he observed:
“This court recognises the cardinal importance of press freedom. Any restriction on it must be proportionate and no more than is necessary to promote the legitimate object of the restriction. The position can be summarised succinctly by a quotation from the judgment of O’Higgins C.J. in Cullen v. Toibín [1984] I.L.R.M. 577 where he said:-
‘The freedom of the press and of communication which is guaranteed by the Constitution… cannot be lightly curtailed.’
It is against this background of a constitutionally guaranteed entitlement to press freedom coupled with a similar right under Article 10 of the Convention that this application for injunctive relief must be viewed.”
29. Kelly J. then proceeded to consider the entitlement, claimed by the Tribunal, to assert a claim of confidentiality over the material circulated as part of its brief, and to restrain the publication by the Sunday Business Post. He demonstrated by reference to the judgments of this Court in O’Callaghan v Judge Alan Mahon and others, (Supreme Court Unreported 9th March 2005 [2005] IESC 9) (conveniently referred to as JR324 in the submissions in this case), that the Tribunal had failed to maintain a claim of confidentiality in the circumstances of that case.
“In the present case I am of opinion that the claim to confidentiality goes even further than that which was unsuccessfully asserted by the Tribunal in O’Callaghan’s case. Having received statements on a confidential basis the Tribunal then circulates those statements and other material to the relevant parties. All of those documents whether obtained confidentially or not (and some of which are public documents) are sought to be rendered confidential by a policy decision of the Tribunal. Regardless of nature or source every document in a brief is said to be confidential and this court is asked to intervene so as to enjoin publication of all and any of that material by the defendant. I can find no authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality, nor in my view should this court enforce it.”
30. Kelly J also reviewed the history of the law in respect of the equitable doctrine of confidence, with citations from English and Irish cases. He observed that the reliefs sought by the Tribunal covered all material in a brief, whether or not it was truly of confidential character. The only material capable of protection under the doctrine was that which had the necessary quality of confidence about it. He concluded:
“The reliefs which I am asked to grant seek to cover all of the material in a brief which the Tribunal has directed should remain confidential. Some of that material was obtained confidentially, some not. Some are public documents, some not. The mere fact that the Tribunal has directed that information or documents should remain confidential does not, in my view, make such documents confidential.
The only material which could be capable of protection is that which has the necessary quality of confidence about it. Material which is public property and public knowledge cannot have that quality. No order of the Tribunal can make it so. Some of the material in the brief might well be capable of protection but the injunctive reliefs sought make no such distinction or give any clue in that regard.”
31. Finally, he considered the circumstances in which a court might restrict the exercise of the right of freedom of expression. He quoted the analysis by Lord Hope of Craighead in his speech R. v Shayler [2003] 1 AC 247 at 280 of Article 10(2) of the European Convention on Human Rights and Fundamental Freedoms. That was to the effect that any such restriction must satisfy certain basic requirements. In the view of Kelly J, the restriction sought by the Tribunal did not satisfy these requirements. In particular, he did not consider that its imposition would be proportionate. Finally, he declined the invitation of the Tribunal to fashion a more narrow remedy than that sought.
32. I find myself fully in agreement with the approach adopted by Kelly J. In particular, he was right to take as his starting point the proposition that the matter as involving a request to restrict freedom of expression. I will turn then to discuss these issues.
The Appeal
33. The Tribunal’s notice of appeal contains fourteen grounds. Seven grounds take issue with that part of the High Court judgment which held that the order sought was overbroad and that there was insufficient information to enable the court to frame an appropriate order so as to protect only “truly confidential material.”
34. Regarding the substance of the Tribunal’s case, one ground concerned the failure of the High Court:
“to find that an obligation of confidentiality prevented the Defendants from publishing confidential documents and information having as its source the disclosure of such material by the Tribunal in the interest of permitting affected individuals to vindicate their constitutional rights.”
35. A number of other grounds complain of: the failure of the High Court to take sufficient account of the right of privacy under the Constitution and under Article 8 of the Convention; to take sufficient account of the citizen’s right to protection of his or her good name; failing to find that section 4 of the Official Secrets Act, 1963 imported a confidence into material disclosed by the Tribunal. There is specific complaint that the learned High Court judge failed “to have any or any adequate regard to the qualifications and the right to freedom of expression laid out in Article 10.2 of the European Convention on Human Rights.” Finally, it is said that the learned judge failed to hold that, in the event of any conflict between the Convention and the Constitution, the Constitution must prevail.
36. I do not propose to consider the issue of the Official Secrets Act. As was pointed our when the matter was raised at the hearing, that Act provides only for criminal sanctions. I do not see any basis for the allegation that it imports a right for the Tribunal to impose a requirement of confidentiality.
37. The Tribunal’s case is, therefore, expressly based on the claimed confidentiality of documents circulated by the Tribunal “in the interest of permitting affected individuals to vindicate their constitutional rights.” Mr Paul O’Higgins, Senior Counsel, for the Tribunal, argued that what was involved was a species of public-interest confidentiality. The public interest consisted in vindicating the good name of individuals as part of the Tribunal process. The Tribunal should be in a position to assure those who engage with it in its work that the information they provide will be used only in the interests of its inquiries and circulated in such a way that their confidence is respected.
38. Mr O’Higgins accepted the prima facie status of freedom of speech and argued that the issue was where the balance was to be struck.
39. The Tribunal does not dispute that the order it seeks would impinge upon the freedom of expression of the defendants and of others affected by the order. Nor does it dispute that it must rely on one of the permitted qualifications of that right.
Freedom of Expression
40. The Tribunal seeks, in the form of an injunction, a general order restraining future publication by the media. That form of order is called prior restraint. That is axiomatic and must be recognised before proceeding further in the discussion.
41. Freedom of expression is, of course, guaranteed both by the Constitution and by the Convention, but, even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of publication must justify it.
42. It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Griffin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
43. The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television PLC [1994] Fam. 192; [1994] 3 WLR 20:
“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
44. For the purposes of the present appeal, it is the last sentence of that passage which is important. The Tribunal needs to point to an exception clearly defined by law.
45. To be fair to the Tribunal, it has never contested or sought to diminish the importance of the freedom of the press to report and comment on its proceedings. For example, Ms Griffin has exhibited in her grounding affidavit the decision of the then Sole Member of the Tribunal dated 18th December 1998 which contains the following admirable statement:
“The Tribunal readily accepts both the importance and the role of the media in educating public opinion. This role is specifically acknowledged in the language of Article 40.6.1.i of the Constitution. The media enjoys a continuing right to freedom of expression that to be any way meaningful must include a right to report, comment and criticize. This Tribunal in common with any other public entity in this State can legitimately be the subject of adverse media comment. The Tribunal does not make any case that it is immune from the ordinary course of media reporting, comment and criticism.”
46. The Tribunal does not, on this appeal, contest these propositions. It expressly accepts that the right of freedom of expression is constitutionally guaranteed and, furthermore, that the law in this area must now be considered in the light of the European Convention of Human Rights Act, 2003. It submits, however, that the qualifications on the right to freedom of expression are as important as the right itself.
47. It is, therefore, necessary to consider the extent and nature of the right at issue before addressing the question of the restrictions which may be justified.
48. Article 40.6.1(i) of the Constitution guarantees the: “right of citizens to expressly freely their convictions and opinions……” The present case concerns the communication of information rather than opinions. The constitutional origin of the right to communicate information has been considered in two cases:
49. In Attorney General v. Paperlink Limited [1984] ILRM 373 at p. 381, Costello J situated it in Article 40.3.1°. He reasoned as follows:
“[T]he act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1°(i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1°.”
50. In Murphy v. I.R.T.C. [1999] 1 IR 12, Barrington J, delivering the judgment of the Court, appears to have modified this, saying, at page 24 of the judgment:
“It appears to the Court that the right to communicate must be one of the most basic rights of man. Next to the right to nurture it is hard to imagine any right more important to man’s survival. But in this context one is speaking of a right to convey one’s needs and emotions by words or gestures as well as by rational discourse.
Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of expression, the right to free assembly and the right to form associations and unions in the one sub-section. All three rights relate to the practical running of a democratic society. As Barrington J. stated in Irish Times Ltd. v. Ireland [1998] 1 IR 359, the rights of the citizens “to express freely their convictions and opinions” guaranteed by Article 40.6.1° is a right not only to communicate opinions but also to communicate the facts on which those opinions are based. If this means that there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1°, so be it. The overlap may result from the different philosophical systems from which the two rights derive.”
51. Clearly, the Constitution, unequivocally guarantees both the right to express convictions and opinions and the right to communicate facts or information. These rights are inseparable. It matters little, at least for present purposes, which Article of the Constitution expresses the guarantee. The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society.
52. The real issue is the extent to which and the grounds upon which restrictions on that right may be justified. In the constitutional context, Barrington J, at a later point in the judgment of the Court quoted above, added that “both the right of freedom of expression and the right of freedom of communication are personal rights and both can, in certain circumstances, be limited in the interests of the common good.” (page 25). The Court proceeded to judge the case before it (concerning a statutory prohibition on broadcasting of advertisements “directed towards any religious or political end…”).
53. Our courts, therefore, recognise that the right of freedom of expression is not absolute. It may be necessary to reconcile it, in the event of conflict, with other constitutional rights. It may even, as in the case of Murphy v. I.R.T.C., be restricted or controlled by laws passed for the advancement of other legitimate social purposes. In such cases, the courts have found it useful to have resort to the principle of proportionality. The judgment of Barrington J identified the issue at page 26 as follows:
“The real question is whether the limitation imposed upon the various constitutional rights is proportionate to the purpose which the Oireachtas wished to achieve.”
54. As I hope to explain, this approach is, and has been recognised by this Court to be, closely comparable to that adopted by the European Court of Human Rights when interpreting the Convention.
55. Article 10 of the Convention guarantees the exercise of freedom of expression 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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
56. Just as the Court (Barrington J) in Murphy v I.R.T.C., posed for itself the question whether the statutory restriction on broadcasting religious broadcasts was “proportionate to the purpose which the Oireachtas wished to achieve,” a question may be formulated as a test for the present case in accordance with Article 10(2) of the Convention. In De Rossa v Independent Newspapers [1999] 4 IR 432, a libel case, Hamilton C.J., speaking for the majority of the Court recalled, at page 449 of the judgment, the dictum of Henchy J in Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436 at p. 450 that “the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name.” Hamilton C.J. added that there did not “appear to be any conflict between Article 10 and the common law or the Constitution.” That is an issue to which I will return in more detail.
57. I believe, therefore, that the Convention analysis provides a particularly useful mechanism for examination of the justification for imposition of the restriction sought by the Tribunal in the present case. As Geoghegan J said in his concurring judgment in Murphy v I.R.T.C., “[a]lthough the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right.” This dictum was approved by Hamilton C.J, speaking for the majority of the Court, in his judgment in De Rossa v Independent Newspapers, cited above.(page 450).
58. The restriction sought is said to justified by the need of the Tribunal to protect the confidentiality of information communicated to it while it is carrying out its functions in accordance with the Tribunals of Inquiry Acts and the Oireachtas resolutions which established it.
59. Section 2 of the European Convention on Human Rights Act 2003 now requires the Court in interpreting “any statutory provision or rule of law, ……in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a manner compatible with the State’s obligations under the Convention provisions.” That provision applies to the provisions of the Tribunals of Inquiry Acts and to the general or common law regarding the protection of confidential information.
60. A restriction on freedom of expression, if it is to be permitted pursuant to Article 10(2) of the Convention, must, as that provision requires, firstly, be prescribed by law and, secondly, be “necessary in a democratic society…” It must, as the Court of Human Rights has said serve “a pressing social need.” It must also, of course, serve one of the listed interests. One of these is: “preventing the disclosure of information received in confidence.” Kelly J quoted the following passage from the speech of Lord Hope of Craighead in R. v. Shayler [2003] 1 A C 247 at page 280:
“The wording of Article 10(2) …… indicates that any such restriction, if it is to be compatible with the Convention right, must satisfy two basic requirements. First, the restriction must be, ‘prescribed by law’. So it must satisfy the principle of legality. The second is that it must be such as is ‘necessary’ in the interests [in that case] of national security. This raises the question of proportionality. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of this case. As any restriction of the right to freedom of expression must be subjected to very close scrutiny, it is important to identify the requirements of that jurisprudence before undertaking that exercise.
The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it is being resorted to in bad faith or in a way that is not proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday Times v. The United Kingdom, 2 EHRR 245, para.49 and also from Winterwerp v. The Netherlands [1979] 2 EHRR 387, 402 – 403, para.39 and Engel v. The Netherlands (1) 1 E.H.R.R. 647, 669, paras.58 to 59, which were concerned with the principle of legality in the context of Article 5(1); see also A. v. The Scottish Ministers [2001] SLT 1331, 1336 – 1337.”
61. It is important to note the first of these requirements, that of legality. The restriction proposed must be based on a provision of the law of the state. Hoffmann L.J. said as much in the passage already cited. It is not necessary that the exception invoked be prescribed by statute. The law of defamation indubitably restricts freedom of expression, but is almost entirely a creature of the common law. But it must be based on known and accessible legal provisions. It must, as Lord Hope says be: “sufficiently precise to enable [an affected individual] to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.”
62. The principle of proportionality is not expressly mentioned in the Article, but has been developed in the case-law of the Court of Human Rights. It derives from the requirement that the restriction be “necessary in a democratic society.” The Court of Human Rights has consistently held that to satisfy this requirement the restriction sought must serve “a pressing social need.” (see Observer and Guardian v the United Kingdom judgment of 26 November 1991, Series A no. 216 p.30). A further crucially important aspect of that requirement is that the restriction should not be any broader than strictly necessary to serve the interest invoked to justify it. Lord Hope analysed proportionality in a further passage, also quoted by Kelly J, at page 281of the same speech:
“The first is whether the objective which is sought to be achieved – the pressing social need – is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.”
63. Our own courts have consistently approved and applied, for instance in Murphy v I.R.T.C., the following dictum of Costello J (as he then was) regarding the principle of proportionality in Heaney v. Ireland [1994] 3 I.R. 593 at 607:
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights…… and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
1. (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
2. (b) impair the right as little as possible, and
3. (c) be such that their effects on rights are proportional to the objective …”
64. The Tribunal, as I have explained, founds its application for the remedies sought exclusively on the law of confidence. Necessarily, it is driven to show that its reliance on the confidentiality of the documents it has circulated justifies the restriction of the defendant’s right of freedom of expression.
65. Finally, under this heading, it is is important to reiterate that what is sought by the Tribunal amounts to a form of prior restraint. The defendant, in reliance on the jurisprudence of the European Court of Human Rights, submits that any such restriction calls for the most careful scrutiny. In Observer and Guardian v United Kingdom, (cited above), the Court held:
“…Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such………On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
66. That passage referred, of course, to the obligation of the European Court itself. However, it is equally plain, for reasons I have given above, that this Court is under a corresponding obligation. Lord Hope spoke of a “close and penetrating examination of the factual justification for the restriction.” (cited above). It must scrutinise the present application for an injunction seeking prior restraint on publication with particular care.
The Law of Confidence
67. The Tribunal accepts that there is no provision in the Tribunals of Inquiry Acts conferring the quality of confidentiality on the Tribunal or on any of its workings. In its written submissions to this Court, it makes reference to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, which provides:
“A tribunal may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders.”
68. It does not suggest, however, that its claim is based on that provision or that any order was made by the Tribunal pursuant to that power. Indeed, the defendant claims in its written submissions that the Tribunal has made no attempt to identify the juridical nature of its claim to confidentiality.
69. In essence, as already explained, the Tribunal bases its claim on the express written notice it gives to persons to whom it communicates its briefs that their circulation is on a strictly confidential basis. Clearly, a matter which I wish to make perfectly clear, none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in JR324. Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or organisation. Problems arise only when information has been released or, as often happens, “leaked.”
70. The law with regard to confidential information is of comparatively modern origin. It was above all developed to regulate the behaviour of private parties and was based on the doctrine of trust. It is independent of contract. A recipient of a confidence must not breach it by communicating the confidential information to third parties. It is, of course, capable of application both to purely personal and to non-commercial information. The case of Prince Albert v Strange (1849) 1 Mac G 25 concerned drawings and etchings made by Queen Victoria and Prince Albert of subjects of private and domestic interest to themselves. Certain plates had been confided to a printer for the purpose of printing impressions for private royal use. They had found their way by surreptitious means into the hands of persons wishing to publish a catalogue of them. An injunction was granted based on breach of confidence and trust. The case of Duchess of Argyll v Duke of Argyll [1967] Ch. 302 concerned the publication of marital secrets.
71. The law of confidence has, however, developed more generally in a commercial context. Dismissed or defecting employees have not infrequently purloined their former master’s technical or commercial information. While employees can be restrained in contract without resort to the equitable doctrine, the latter becomes relevant when the information is conveyed to third parties who are on notice of the confidential character of the information. A more specific type of application of the equitable principle has arisen where information has been conveyed during negotiations for the establishment of a joint commercial venture. Many of the cases have arisen from cases of failed negotiations. The recipient of the information is deemed to have received the confidential information on trust solely for the purposes of the intended joint venture. If the negotiations fail, that recipient will, if necessary, be restrained from using it or authorizing use of it without permission, for his own purposes. Kelly J cited a passage from the judgment of Megarry J (as he then was) in Coco v A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41 at 47. It neatly encapsulates the requirements for a successful action based on breach of confidence, at least in a commercial setting. He said:
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
72. Megarry J gave further thought to the test for establishing the confidential character of information:
“First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at pg.215, ‘something which is public property and public knowledge’, cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not upon the quality of its constituent parts.”
73. In the first case on this topic in this jurisdiction, House of Spring Gardens Ltd. and others v. Point Blank and others [1984] I.R. 611 Costello J reviewed, in great detail, the English decisions commencing with Prince Albert’s case. He was dealing with a case of the failed-joint-venture type. His analysis of the law was approved by this Court. He cited, in particular two passages from English decisions on the circumstances from which an obligation of confidence may be deduced. In Terrapin Ltd. v. Builders’ Supply Co. (Hayes) Ltd [1960] R.P.C. 128, Roxburgh stated (as reported on page 1317 of the report of Cranleigh Precision Engineering Ltd. v. Bryant [1965] 1 W.L.R. 1317.):
“As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communication, and spring-board it remains even when all the features have been published or can be ascertained by actual inspection by members of the public.”
Costello J cited with approval a very similar dictum of Lord Denning M.R. in Seager v Copydex Ltd.:
“The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole information is private. The difficulty arises when the information is in part public and in part private.”
74. From all of these cases, the contours of the equitable doctrine of confidence can be described sufficiently for the purposes of this appeal, as follows:
1. The information must in fact be confidential or secret: it must, to quote Lord Greene, ‘have the necessary quality of confidence about it’;
2. It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.
75. A fuller discussion and treatment, taking account of issues not relevant to the present case, may be found in R.G. Toulson and C.M. Phipps, Confidentiality (Thomson Sweet & Maxwell London 2006).
76. An important point is, however, made by the defendant, namely that the confidence is vested in those who have created the information or, as may in this case, have provided it to the Tribunal. The defendant relies on a decision of the Court of Appeal in England in Fraser v Evans [1969] 1 Q.B. 349. In that case, a public relations consultant to the Greek Government under a contract expressly imposing on him the duty never to reveal any information about his work made a written report to that government. A version of the report in an English translation was surreptitiously obtained, and came into the hands of journalists from the “Sunday Times,” who proposed to publish an article based on the report. The consultant obtained an interim and an interlocutory injunction. The latter was set aside on appeal. Lord Denning M.R. referred to the cases on the issue of breach of confidence. At page 362, he proceeded as follows:
“Those cases show that the court will in a proper case restrain the publication of confidential information. The jurisdiction is based not so much on property or on contract as on the duty to be of good faith. No person is permitted to divulge to the world information which he has received in confidence, unless he has just cause or excuse for doing so. Even if he comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence. But the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed. It is at this point that I think Mr. Fraser’s claim breaks down. There is no doubt that Mr. Fraser himself was under an obligation of confidence to the Greek Government. The contract says so in terms. But there is nothing in the contract which expressly puts the Greek Government under any obligation of confidence……… It follows that they alone have any standing to complain if anyone obtains the information surreptitiously or proposes to publish it. And they did not complain of the publication now proposed…… On this short point it seems to me that Mr. Fraser himself cannot proceed on breach of confidence so as in his own behalf to prevent “The Sunday Times” publishing the article.” (emphasis added)
77. That decision was referred to in argument, though not in judgment in Broadmoor Special Hospital Authority v Robinson [2000] QB 775, where the plaintiff authority sought an injunction restraining publication by a mental patient of a book giving information about other patients. The injunction was refused. The Court of Appeal stated that that the authority could not bring proceedings to protect other patients’ rights to privacy or confidence or to prevent distress to the victim’s family unless the conduct complained of interfered with the performance of the authority’s own duties. These cases are also discussed in R.G. Toulson and C.M. Phipps on Confidentiality, cited above.
78. This case is not, of course, of the same character as any of those discussed above. It does not concern relations between private parties. In England, the principles of the law of confidence were extended to the workings of government in Attorney General v Jonathan Cape Ltd [1976] 1 Q.B., which concerned an application to prevent the publication of Richard Crossman’s Diaries of a Cabinet Minister. The injunction was refused, due to lapse of time, but the principle was established. Lord Widgery C.J. said at page 769:
“……these defendants argue that an extension of the principle of the Argyll [cited above] case to the present dispute involves another large and unjustified leap forward, because in the present case the Attorney-General is seeking to apply the principle to public secrets made confidential in the interests of good government. I cannot see why the courts should be powerless to restrain the publication of public secrets, while enjoying the Argyll powers in regard to domestic secrets. Indeed, as already pointed out, the court must have power to deal with publication which threatens national security, and the difference between such a case and the present case is one of degree rather than kind. I conclude, therefore, that when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained by the court, and his obligation is not merely to observe a gentleman’s agreement to refrain from publication.”
79. The “Spycatcher” case was, of course, the setting for the most extensive and strenuous reliance on these principles. The attempts of the government of the United Kingdom to restrain publication of the memoirs of Mr Peter Wright extended almost worldwide. The key principle established in all that litigation was that the government was not in a position to complain of breach of its secrets and publication of confidential information on the same basis as private individuals.
80. The House of Lords had occasion to consider all aspects of the application of the doctrine to the publication of Mr Wright’s memoirs in Attorney General v Guardian Newspapers [1990] 1 AC 109. I propose to cite the dicta regarding the need to show detriment to the public interest. Lord Keith of Kinkel said at page 256:
“The position of the Crown, as representing the continuing government of the country may, however, be regarded as being special. In some instances disclosure of confidential information entrusted to a servant of the Crown may result in a financial loss to the public. In other instances such disclosure may tend to harm the public interest by impeding the efficient attainment of proper governmental ends, and the revelation of defence or intelligence secrets certainly falls into that category. The Crown, however, as representing the nation as a whole, has no private life or personal feelings capable of being hurt by the disclosure of confidential information. In so far as the Crown acts to prevent such disclosure or to seek redress for it on confidentiality grounds, it must necessarily, in my opinion, be in a position to show that the disclosure is likely to damage or has damaged the public interest.”
81. To similar effect, Lord Griffiths at page 270 held:
“But whatever may be the position between private litigants, we have in this litigation to consider the position when it is the Government that seeks the remedy. In my view, for reasons so cogently stated by Mason J. in Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 147 C.L.R. 39, which I will not repeat because they are fully cited in the speech of Lord Keith of Kinkel, a government that wishes to enforce silence through an action for breach of confidence must establish that it is in the public interest to do so. This is but another way of saying that the Government must establish, as an essential element of the right to the remedy, that the public interest will suffer detriment if an injunction is not granted.”
82. Lord Goff of Chieveley expressed the matter in somewhat different terms at page 283:
“In cases concerned with Government secrets,……… it is incumbent upon the Crown, in order to restrain disclosure of Government secrets, not only to show that the information is confidential, but also to show that it is in the public interest that it should not be published……… The reason for this additional requirement in cases concerned with Government secrets appears to be that, although in the case of private citizens there is a public interest that confidential information should as such be protected, in the case of Government secrets the mere fact of confidentiality does not alone support such a conclusion, because in a free society there is a continuing public interest that the workings of government should be open to scrutiny and criticism. From this it follows that, in such cases, there must be demonstrated some other public interest which requires that publication should be restrained.”
83. In reaching these conclusions, several of the Law Lords referred with approval to the following dictum, quoted in extenso in the speech of Lord Keith, of Mason J in his judgment in the High Court of Australia in Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 147 C.L.R. 39:
“The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”
84. It is of interest to note that the identical passage from the judgment of Mason J was cited with approval by Carroll J in her judgment in Attorney General for England and Wales v Brandon Book Publishers Ltd. [1986] I.R. 597 at 601. That passage was, no doubt, obiter to the decision of the learned judge. She held, quite correctly, that the plaintiff was not in a position to rely upon the public interest of a foreign government before an Irish court. On the other hand, I believe that the dictum of Mason J is deserving of the respect accorded to it by Carroll J, quite independently of the views of the House of Lords. I also believe that, since the Tribunal clearly does not fit within the scope of the traditional type of case concerning breach of confidence between private individuals, it must prove detriment to the public interest if it is to obtain the injunction sought.
Application of Legal Principles to the Facts of this Case
85. As I have already stated, this case concerns an attempt to impose a restriction on the exercise of the right guaranteed by both the Constitution and the Convention to the free expression of convictions and opinions including the free communication of information. Hence, the Tribunal must justify the order it seeks on the basis of an exception recognised by law. That is necessary in the purely constitutional context. It is also necessary for the Tribunal to show that it can justify the order it seeks by reference to one of the interests listed in Article 10(2) of the Convention.
86. In particular, since it seeks an order by way of prior restraint on publication, its application must be subjected to particularly strict scrutiny.
Legal Justification; Prescribed by Law
87. I do not believe that the Tribunal has established any legal justification for its claim of confidentiality. It was expressly accepted at the hearing of the appeal that there is no provision of the Tribunals of Inquiries Acts imposing confidentiality on the documentation circulated by the Tribunal in the form of “briefs.” I have already mentioned that the Tribunal, while referring to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 does not claim that an order has been made pursuant to that provision or even that the section authorises such an order. It is not unknown for the Oireachtas to enact specific rules ordaining the confidentiality of categories of documents or information under pain of criminal penalty: see for example section 37 of the Commissions of Investigation Act, 2004. Similarly, the media are prohibited on pain of prosecution from publishing the proceedings of the family courts.
88. The Tribunal relies, for this purpose on the statement accompanying the briefs, which says:
“The enclosed documents remain the property of the Tribunal and the information contained therein is confidential to the Tribunal and may not be disclosed to any person other than your legal advisor, who is likewise restrained from disclosing the contents thereof. You must retain the original documents in your possession. If it is your intention to copy any of the documents enclosed, you must seek the consent of the Tribunal prior to doing so.”
89. Unlike the cases concerning communication of confidences, there is no question of trust here. That type of trust or confidence arises from mutual arrangements of some sort, as in the joint venture cases. A person becomes the repository of confidences on an implied basis of trust, firstly in the colloquial sense that the communicator trusts that person and, secondly, in the equitable sense of trust. No such relationship is alleged here. The terms of confidentiality are imposed unilaterally by the Tribunal. They are extremely restrictive. They extend to a person’s spouse or other close intimates or associates whether personal or business. I cannot accept, as appeared to be suggested at the hearing that these are trivial or unimportant matters, which should not be taken seriously, because the Tribunal would never enforce the terms so rigorously. I find myself in agreement with Kelly J, who said that he could “find no authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality, nor in my view should this court enforce it.
90. Furthermore, I do not accept that the Tribunal has power to enforce the confidentiality of documents or information which are, or as may well be the case, may be, confidential to persons who have assisted the Tribunal by making statements or giving information or documents. I would not wish to pronounce definitively on whether the decision of the Court of Appeal in England in Fraser v Evans, cited above, should be followed, without qualification, in this jurisdiction. I would merely make the following observations. The Tribunal, especially in its notice of appeal, claims the right to seek the orders by way of injunction in the interests of protection of the privacy or good name of persons who may be affected by publication. It would represent a substantial departure from the existing law if courts were to make general orders of prior restraint in protection of the good name of individuals, even in applications at the suit of those individuals themselves. In the exceptional cases where that is done, the person moving the court must place before it cogent material to demonstrate that his or her name will be irreparably and seriously damage if an impending publication takes place. The orders sought at present would be made on the presumptive and entirely speculative basis that publication of material circulated by the Tribunal would damage the good name of unnamed and unspecified individuals without any showing whatever on the question of damage. Furthermore, it would be done at the behest, not of the individuals, who would not be required to play any part, but of the Tribunal.
91. I do not, in the preceding passage, intend to disparage the possibility that an individual, aware of impending media publication of information communicated by him or her to the Tribunal, could succeed in obtaining an injunction. The law of defamation has established principles in this area. An individual complaint grounded on the right to privacy might succeed by virtue of the mere fact that the information (for example, an individual’s personal financial information) was private and personal. Unlike other jurisdictions, we have not yet had cases of this sort. There is room for development of the law.
92. At the beginning of the paragraph before the preceding one, I mentioned documents or information which are confidential to persons who have assisted the Tribunal by making statements or giving information or documents. Of course, the orders sought are so broad as to affect potentially information which is not confidential at all and in respect of which the related individuals have sought no undertaking as to its being kept confidential. As was stated at the hearing of the appeal, briefs are circulated to proposed witnesses who are not themselves impugned by any allegation. Most particularly, I regard as strange, not to say bizarre, the notion that the press may be restrained from publishing the fact that the Tribunal has circulated a document, even an entirely innocuous one, which is already in the public domain. If it is already a public document, what is confidential about the fact of its having been circulated by the Tribunal?
93. Finally, the question of whether the doctrine of confidence extends to the information of the government or of public authorities has not yet been the subject of judicial determination in this jurisdiction. For what it is worth, I do not see any reason not to follow the line of case-law which has been adopted in England. This point is more relevant to the question of whether the ground for the restriction is prescribed by law for the purposes of Article 10(2) of the Convention, to which I now turn.
94. All of the reasons I have given amount to compelling reasons demonstrating that the restriction relied upon is not prescribed by law. Clearly, steps taken for “preventing the disclosure of information received in confidence” is one of the exceptions recognised by Article 10(2). However, the Tribunal has, for reasons already mentioned, not demonstrated any legal power to prevent those to whom it communicates its briefs from communicating their contents. In this context, I would add that, in the present state of Irish law, and acknowledging that it may develop, it is not established that governmental or other public or statutory bodies have the right to apply for injunctions preventing the disclosure of confidential information. The Tribunal’s claim depends crucially on whether it has power to impose a requirement of confidentiality on all recipients of its briefs. Since there is no express power, it asks the Court to rule that it exists. In my opinion, the Court does not itself have such power. It cannot confer a power which the law has not conferred.
95. That is sufficient to dispose of the appeal. Nonetheless, I will consider the question of proportionality.
Proportionality
96. I have quoted in full at the beginning of this judgment the form of order sought in these proceedings. That is the form order obtained by the Tribunal on 17th December 2004. Kelly J, in the High Court considered that this form of order could not be said to impair the rights of the defendant as little as possible. He thought it was “entirely disproportionate to the aim being pursued and in excess of any legitimate need.” He added:
“On the contrary, the order sought would prevent the defendants from publishing material that is already in the public domain, that was not given to the Tribunal in confidence, that did not come into existence for the Tribunal’s purposes and whose owners may have no objection to the defendant publishing it. An injunction of the type sought goes much further than one which could ever be required to address the Tribunal’s alleged difficulties. Such an order would fetter and impede the defendant to a much greater extent than could ever be regarded as necessary.”
96. In response to an invitation from counsel for the Tribunal that he frame a form of order which was less wide, he stated that it was not the function of the court to do this. He also stated:
“I would have to have sufficient information to enable me to draft an order that is “sufficiently precise to enable (the defendants) to understand its scope and foresee the consequences of (their) actions so that (they) can regulate (their) conduct without breaking the law” (per Lord Hope). The order would also have to be drafted so as to protect only that deserving of protection (truly confidential material) and impede the defendants in their entitlements to the minimal extent reasonably possible. It would be difficult to draft such an order.”
97. Counsel for the Tribunal, at the hearing of the appeal, proposed the following modified form of order:
“An injunction restraining the Defendant (or any person having knowledge of the order herein) from publishing, using or exploiting any information or document or any part thereof, forming part of or arising from the documentation circulated by the Plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the Plaintiff of documents for the purpose of the Tribunal’s public hearings:
(a) before such information and/or the contents of such document has been disclosed at a public hearing of the Plaintiff; or
(b) until the Plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the Defendant (or any person having knowledge of the order herein) is restrained from publicizing the fact that they are part of the documents so circulated.
98. It must be noted, at the outset, that this order does not relate in any way to the documents already published in 2004 or indeed to any specified document. It relates generally to all documentation which will be circulated by the Tribunal in the future. It applies and is intended to apply to everybody and, in particular, to the entire of the media, not merely to the defendant and its newspapers but to all other newspapers and other news media. It neither specifies nor identifies any particular documents. The expression, “any information or document or any part thereof, forming part of or arising from the documentation circulated,” is both vague and ambiguous. The original formulation depended only on whether the Tribunal had purported to impose the requirement of confidentiality; to that extent, it had the merit of clarity. The new formulation introduces the notion that the documents shall have been: “circulated by the Plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal.” The Court has been informed that “briefs” are circulated to persons who are not at all impugned. The amended formulation would appear not to affect such recipients. If so, the order would be pointless. Furthermore, it applies to “information……arising from the documentation circulated,” which could mean anything. Who is to decide what documents are “in the public domain”?
99. The defendant has referred to the dictum of Lord Nicholls in Attorney-General v Punch Ltd [2003] 1 AC 1046 at 1055:
“An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. An order expressed to restrain publication of “confidential information” or “information whose disclosure risks damaging national security” would be undesirable for this reason.”
100. I do not regard either the original or the amended formulation of the proposed order as satisfactory. I do not believe that any satisfactory formulation is capable of being devised.
Conclusion
101. The Tribunal seeks an order which will restrict freedom of expression. It claims that the press should be restrained from publishing information which it has designated as confidential. It has not been able to identify any legal power which it possesses to designate information released by it in that way. It seeks an order in very wide terms in respect of unspecified information, which would affect the entire media.
102. In my view, the learned trial judge correctly dismissed the Tribunal’s application. I would dismiss the appeal.
JUDGMENT of Mr. Justice Geoghegan delivered the 29th day of March 2007
This is an appeal by the above-named appellants (hereinafter referred to as “the Tribunal”) against an order of the High Court (Kelly J.) refusing certain alternative injunctions against the above-named respondent (hereinafter referred to as “Post Publications”) prohibiting the publication of what the Tribunal considers to be certain confidential documentation and information emanating from it.
The proceedings had been commenced with a plenary summons and contemporaneously an application was made to the High Court for interim injunctions in the form of the alternative injunctions to which I have referred. In fact Finnegan P. who heard the application granted both interim injunctions. The consequential motion seeking interlocutory injunctions in the same form was ultimately adjourned from time to time with the interim injunctions remaining in place. In the meantime, various affidavits were exchanged and ultimately by agreement the hearing of the interlocutory motion was treated as the trial of the action. Kelly J., therefore, determined the issues on foot of affidavits and exhibits and without oral evidence. I will return later to the reasons why the reliefs were refused.
So that there can be a proper understanding of the nature of the issues on this appeal and how they arise, I think it essential that I review in some detail the various affidavits filed.
The first and most important is the affidavit of Marcelle Gribbin, solicitor attached to the Tribunal grounding the original application for the interim injunctions and sworn on the 17th December, 2004. In the introductory part, she explains the general nature of the Tribunal which was established pursuant to respective resolutions passed by Dáil Éireann and Seanad Éireann in 1997 and which had the powers conferred on it by the Tribunals of Inquiry (Evidence) Act, 1921, as amended. The Tribunal was set up to investigate alleged corruption in the planning process. She goes on to give details of the ownership of the Sunday Business Post which is owned by Post Publications and which in turn is a subsidiary of Thomas Crosbie (Holdings) Limited the publisher of the Examiner Newspaper in Cork.
Ms. Gribbin goes on to explain that at a public hearing of the Tribunal on the 14th January, 1998 a protocol in the following terms was announced by the then Sole Member.
“I fully appreciate concerns which persons wishing to assist the Tribunal may have in relation to the issues of personal and commercial confidentiality. In order to protect these legitimate concerns I propose to adopt the following protocol in regard to documents:-
(i) All original documents will be returned to their owners after the Tribunal has concluded its work.
(ii) All copies of documents with confidential, commercially sensitive or personal information will be destroyed after the conclusion of the inquiry.
(iii) All documents will be stored in a secure location.
(iv) Confidential information not relevant to the inquiry will not be disclosed to any outside party. The only parties who will have access to such documents will be the Chairman and the legal team to the Tribunal.
(v) Documents, which contain both confidential, personal or commercially sensitive information not relevant to the inquiry, or other information, which is relevant, will have the irrelevant information blanked out.
(vi) Counsel for the Tribunal will be willing at all times to discuss any concerns any person may have concerning confidential, personal or commercially sensitive information.”
In paragraph 7 of the affidavit the deponent explains that since it was established the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information which according to her has significantly delayed the Tribunal’s work.
I need to pause here because one of the problems in this case and indeed it is a problem to which the learned High Court judge attached considerable significance is what exactly the Tribunal rightly or wrongly regards as “confidential information”. As I understand the case being made, it is not confined to documents furnished by persons at its investigative stage with an express stipulation as to confidentiality in the event of their not being considered relevant to be produced at the oral hearing. In order to explain what the Tribunal means by the expression for the purposes of this appeal it is necessary to explain the context in which it arises. The Tribunal at its investigative stage gathers in all kinds of documentation and information which it may or may not find necessary to use for the purposes of the oral hearing and, therefore, for the purposes of the findings of the Tribunal. Ideally from the point of view of persons who give the Tribunal such documentation or information it would not be furnished to any outsiders by the Tribunal unless and until it was produced at the oral hearing. Having regard however to re Haughey [1971] IR 217 the Tribunal is under a constitutional obligation to give reasonable advance notice to a third party whose reputation may be put in question by evidence given by a witness at the Tribunal. Accordingly, the Tribunal has devised a system of sending out a brief to each person who might potentially be damaged by evidence at a forthcoming public hearing. The brief contains documentation including for instance another witness’s statement which would, effectively, put that person under notice as to what is going to be said in relation to him or her at the Tribunal. When carrying out this practice the Tribunal makes it clear that the “brief” is confidential. The learned trial judge correctly points out that the “brief” may contain documents with information which is in the public domain at any rate as for instance a Companies Act search. Therefore, he concludes that the injunctions sought (the terms of which I will be setting out later) are much too wide and essentially that is the basis on which the reliefs were refused. While I do not know exactly what was said in the High Court, I am satisfied from the submissions made in this court and also as a matter of inference from the affidavits which I will be fully reviewing that although, undoubtedly, the Tribunal is not confining its confidentiality policy to documents in respect of which it has already promised confidentiality to some person it nevertheless is not intending to extend it to documents that are in the public domain or contain information in the public domain. What it does require however is that it not be disclosed that such public document or document containing such public information is in fact included in the “brief” because of course that is quite a different matter. It may produce context which implicates adversely some person and which if published in advance of an oral hearing could be very damaging. After that diversion, I now intend to return to Ms. Gribbin’s affidavit.
Paragraph 7 reads as follows:
“Since it was established, the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information, which has significantly delayed the Tribunal’s work. The Tribunal believes that such unauthorised disclosures are deliberate, are made by or on behalf of persons who have been or who are likely to be called to give evidence to the Tribunal and are intended to undermine and delay the Tribunal in its work. As a result of one such disclosure the then Sole Member wrote to the editors of a number of newspapers, including the Sunday Business Post, on the 10th December, 1998, expressing his concerns ‘following the continuing publication in the print media of confidential material provided to the Tribunal and circularised by the Tribunal on a strictly confidential basis. It is apparent that past publication of material has taken place, notwithstanding that the publishers were or ought to have been aware of the strictly confidential nature of the documentation which has been published without the authority of the Tribunal.’ The Sole Member also noted in that letter that he had received a number of complaints from individuals whose rights they claimed had been infringed by the unauthorised publication of the Tribunal’s documentation and information. Some of the complainants had indicated that their desire to assist the Tribunal was limited by their fear that confidential information disclosed by them would end up in the newspapers. A letter in similar terms to that sent to the Sunday Business Post was written to the editor of the Examiner.”
Both letters as referred to in that paragraph were exhibited. In each letter, the respective editors were required not later than twelve noon on Friday, 11th December, 1998 to undertake in writing to the Tribunal that they would not publish in any form any confidential material which had been provided to the Tribunal or which had been circularised to others in confidence by the Tribunal. Ms. Gribbin then refers to a series of leaks to different organs of the media and to consequent distressed complaints from persons the subject matter of the stories connected with the leaks. In general, despite the very extensive garda investigation at one stage at least four journalists interviewed declined to answer relevant questions or reveal their sources of information. The deponent then describes how in January, 2001, the Sunday Business Post and other newspapers again published confidential tribunal material. This gave rise to a public statement made by the then Sole Member. That particular statement mainly related to documents which had been furnished confidentially by the Tribunal to financial institutions seeking information but had come into the hands of media outlets. Only one of the newspapers gave an undertaking not to publish in future. The Sole Member in the public statement made it clear that he believed that such unauthorised publication of confidential material may hinder or obstruct the Tribunal in its work and may prove to be a disincentive to persons who had otherwise readily cooperated with the Tribunal’s investigation. It also went on to state that the unauthorised publication of the confidential information had “understandably, caused significant distress to persons named in the article”. The second last paragraph in the public statement reads as follows:
“I earnestly ask the media not to publish or disseminate information which is confidential to the Tribunal and I want to make it clear to all concerned that I will not hesitate to use such options as are available to me, whether by way of application to the High Court by way of complaint to the DPP or otherwise to restrain any improper disclosure of information confidential to the Tribunal.”
That public statement was delivered as far back as 24th January, 2001.
Three years before that on the 18th December 1998, the Sole Member had issued a statement to all the principal media outlets. That statement is exhibited in the affidavit. The following is a quotation from paragraph 5 of that document.
“The preparation of a report and the making of recommendations based on the facts established at such public hearing.
This Tribunal is currently carrying out a preliminary investigation in private in relation to certain aspects of its work. The Supreme Court in the recent Haughey case, at page 122 of the transcript, has made clear that if the inquiry worked during the preliminary investigation stage … were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby.”
After going on to explain the function of the Tribunal in the same paragraph there is then a heading “Confidential Information” and that paragraph reads as follows:
“It is essential to the proper functioning of this phase of the work of this inquiry that, where appropriate, the confidential nature of inquiries being made and the confidential nature of information and documentation coming into possession of the Tribunal be respected. This Tribunal, in common with past tribunals of inquiry, took the step of publishing at a public sitting a protocol detailing the manner in which the Tribunal would treat confidential information and documentation. The Tribunal considers all documentation and information concerning its inquiry work, whether emanating from or received by the Tribunal as confidential information. The Tribunal also considers that any such documentation or information is generally confidential in nature, as well as the fact of having been communicated in circumstances importing an obligation of confidence.”
In paragraph 12 of the affidavit the deponent refers in detail to a specific complaint by the Tribunal against the Sunday Business Post. The solicitor for the newspaper and the author of the article, Mr. Frank Connolly, were written to. Part of the letter read as follows:
“… your clients’ article appears to have been based on the document or documents compiled from a series of letters written to a financial institution by the Tribunal. These letters were written by the Tribunal as part of its preliminary investigations in private (which are not yet completed) and were expressed to be so in the body of the letter. Each of the letters was headed ‘strictly private and confidential – to be opened by addressee only’. The information contained in the letters remains confidential to the Tribunal whether contained in the letters themselves or in a document compiled from the letters. This would undoubtedly have been readily apparent to your client. Your clients are undoubtedly aware of the importance of the Tribunal’s preliminary investigations in private. Your clients’ publication constitutes a very serious infringement of the confidentiality of the Tribunal. It could seriously damage the work of the Tribunal. It could cause damage to the reputations of persons whose interest may be affected by the work of the Tribunal. The Sole Member would expect that persons who came into possession of confidential information of the Tribunal would seek to uphold the confidentiality thereof rather than to expand the breach of confidence. The Sole Member requires that in future your clients maintain the confidentiality of the Tribunal. Meanwhile, the Sole Member will take such steps as he considers appropriate to protect the work of the Tribunal.”
Ms. Gribbin goes on to refer to another incident of unauthorised publication by the Sunday Business Post. This was on the 17th October, 2004 when the paper published an article written by one Barry O’Kelly entitled “Jim Kennedy’s pipedream”. She describes how a further article appeared on that day entitled “Fifty Councillors named in new Tribunal list”. She then deposes to her belief that confidential tribunal documents form the basis of those articles. She explains how a number of documents in connection with a module known as the “Coolamber” module had been circulated to a limited number of parties on the 6th October, 2004. Some further documents in connection with the same module were circulated later in the same month. Public hearings in that module did not commence until the 7th December, 2004. The Tribunal’s letter accompanying the documentation included a specific direction of confidentiality. The document was not to be disclosed to any person other than the legal advisor who is to be likewise restrained from disclosing the contents. A further article headed “Lenihan, Flynn in new payments revelations” written by the same Barry O’Kelly was published in the Sunday Business Post on the 24th October, 2004. This article, according to the deponent, included extracts from a confidential statement furnished to the Tribunal by a Mr. Jude Campion. Accompanying that article was a photograph of an extract from the statement which clearly displayed the Tribunal’s date stamp and the words “confidential” printed thereon. Mr. O’Kelly was asked to furnish the source or sources of his information and materials be refused.
Ms. Gribbin then goes on to explain that as on previous occasions a number of complaints were received by the Tribunal about these disclosures. Two passages from one such complaint are set out in the affidavit and are worth quoting. The first read as follows:
“It is very clear that Mr. O’Kelly, the journalist, had access to considerable amount of information which, it would appear can only have emanated originally from the Tribunal.”
The letter continued:
“We appreciate that the leaking of information such as this is extremely difficult for any tribunal to control and we trust that appropriate measures will be taken to investigate its provenance and steps taken to reprimand the perpetrators.”
Yet another complaint was couched in these terms:
“It is a matter of serious concern to my client as it is to members of the Tribunal that confidential information should be made public in this most public of ways. We have had correspondence in relation to issues such as this before and the views expressed at that time apply equally to this situation.”
Nor was the Tribunal able to obtain the return of the copy of the Jude Campion statement that fell into the hands of the Sunday Business Post. In a letter form the paper’s solicitors, it was made clear that the source of the information would not be disclosed nor would any documentation or other material that came into possession of the paper. The Tribunal was informed indeed that even the return of documentation could identify the source and in those circumstances that they would undertake to destroy the documentation. The Tribunal sent an urgent fax directing that the documentation was not to be destroyed. No response was received from the paper or the solicitors. The Tribunal wrote again seeking the return of the copy of Mr. Campion’s statement and requiring an undertaking that no confidential tribunal documents or their contents would be published until after such document or its contents had been disclosed at a public sitting of the Tribunal. The Tribunal informed the solicitors that it was not at that time insisting that the source of the documentation be disclosed but reserved its right to do so if the document was not returned and the undertaking not given. That elicited a letter from the solicitors for the paper stating that the documentation concerned had been destroyed and making it clear that it was to protect the identity of the source that the document was destroyed. The Tribunal wrote an indignant letter in reply and also sought undertakings for the future which were refused. The solicitors made it clear that they were not involved in the destruction of the documents but were informed that it had happened. Mr. O’Kelly, the journalist, formally confirmed to the Tribunal that he had destroyed the documents. Mr. Anthony Dinan, on behalf of Post Publications Limited was asked to give an undertaking “that any documents or any contents thereof issued or circulated in confidence by the Tribunal will not henceforth be published by your clients or either of them unless such documents or its contents have been disclosed at a public sitting of the Tribunal”. Ms. Gribbin explained that Mr. Dinan refused to give such undertaking which refusal was confirmed in a formal letter to the Tribunal. After that Mr. O’Kelly when recalled to give evidence again refused to disclose his sources. An alternative undertaking to be given by Mr. Dinan was then suggested by the Tribunal, this was to take the form “that the Sunday Business Post will not publish information or reproduce documentation in relation to which it is aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at the public hearing or as otherwise directed.” That undertaking was also formally refused.
Essentially, these are the background circumstances in which the Tribunal in its original affidavit looked for injunctions. The two interim injunctions read as follows:
1. An injunction restraining the defendant, its servants or agents (and all other persons having knowledge of the granting of the order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal.
2. An injunction restraining the defendant, its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal.
(a) Before such information and/or the contents of such documents has been disclosed or read at a public hearing of the Tribunal or
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information.
As I will be explaining in more detail later on in this judgment, the learned High Court judge was, at all material times, concerned about the scope of each of these injunctions which in the end he held to be too wide having regard to the generally accepted principles of freedom of the press referred to both in the Constitution and the European Convention of Human Rights. The judge did indicate that he might re-list the matter before giving judgment with a view to receiving submissions as to the wording of a possible narrower injunction. In the event, he did not adopt this latter course but refused the relief mainly on the ground that what was sought was too wide. At the hearing of this appeal, counsel for the Tribunal, Mr. Paul O’Higgins, S.C. proposed to this court a third alternative form of injunction with the following wording:
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof, forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing:-
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
Such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the documents so circulated.”
It is sufficient at this stage to state the options being put forward to the court by the Tribunal. I will return to them later on in the judgment for the purpose of considering whether the appeal should be allowed or not and, if so, what form of injunction would be appropriate.
I think it helpful at this stage to return to the affidavits. In reply to the affidavit of Marcelle Gribbin which I have already summarised an affidavit on behalf of Post Publications was sworn by Anthony Dinan, mentioned above, on the 21st January, 2004. The substance of the affidavit effectively commences in paragraph 4. In that paragraph, Mr. Dinan refers to the procedures of the Tribunal in relation to sending out briefs to interested parties in advance of a public hearing and he asserts that on many occasions, newspapers and other media organisations have published such alleged confidential information and he exhibits some examples. The last sentence in the paragraph, however, summarises the position taken by Post Publications. It reads:
“I say that it is not accepted that these matters are confidential or that any particular claim of confidentiality may be made in that regard by the Tribunal.”
The next paragraph is essentially a complaint that the Sunday Business Post has been picked out for proceedings after six years when no such proceedings had been brought against any other publication. I will skip over the next parts of the affidavit which are submissions of law. The next set of paragraphs are also argumentative in that they are attempting to justify an alleged principle that a journalist cannot be expected to reveal his sources. The affidavit then particularises some of the articles that were published which reveal names against whom allegations were made Mr. Dinan asserts a public interest in the disclosure of these documents but he also denies that they are confidential. As there is law as well as fact in these submissions, I will deal with this assertion at a later stage. Mr. Dinan’s affidavit can be legitimately criticised for containing more submissions of law than assertions of fact. Nevertheless, I intend to cite in full paragraph 13 as it does encapsulate the case made by Post Publications.
“13. I do not accept that documents can be described as or regarded as confidential simply because they are circulated by the Tribunal. This is the assumption underlying the application as it is set out that there is a fear that documents will be published which are in the process of being circulated to parties for the next module. I am not aware of the contents of any of these documents but I do not accept that the Tribunal can by a determination decree that these documents must all be regarded as confidential irrespective of their nature or content. I say that it is clear from a perusal of the evidence given in previous modules, which is reported widely by this and other newspapers, that various documents are circulated by the Tribunal in advance of a public hearing which cannot in any circumstances be regarded as confidential notwithstanding that they are contained in a tribunal brief. Documents are on a daily basis referred to during the course of the Tribunal and then exhibited on the screens and may or may not be read into the evidence entirely. Many of these documents are matters concerning companies or title documents particularly in respect of the Planning Tribunal, and these are documents which are widely available to the public through various public bodies such as the Land Registry. Various documents concerning the constitution of companies have been referred to during the course of the evidence which were contained in the circulated brief. These are also documents which cannot be deemed to be confidential or to ever have been confidential. Yet these documents were contained in the circulated brief and it is the contention of the Tribunal that these matters are confidential merely because the Tribunal so regard them. For example, in paragraph 38 of the grounding affidavit of Marcelle Gribbin it is set out that the Tribunal is in the process of circulating a large number of confidential documents including statements to witnesses in advance of the public hearing on evidence relating to a new module. It is set out that the circulation of such documents in confidence is accepted by a written warning to all concerned that the documents and the contents thereof shall not be disclosed to any person. If this warning is in fact given with all documents which are circulated, which appears to be the case, then this of itself makes a nonsense of the basis for the allege confidentiality.”
The next few paragraphs of the affidavit are also taken up with argument mostly to the effect that the injunctions sought are too wide and too uncertain.
Ms. Gribbin replied to Mr. Dinan’s affidavit by a further affidavit of her own sworn on the 2nd February, 2005. The opening paragraphs mainly deal with refuting the suggestion that there was delay on the part of the Tribunal in asserting its complaints and pointing out the actions which the Tribunal had taken to prevent leaks including contact with the gardaí etc. Paragraphs 6 and 7 of this affidavit are important and are worth citing in full. They read as follows:
“6. I beg to refer to paragraphs 4, 7 and 13 of the affidavit of Mr. Anthony Dinan where he deals with the issue of confidentiality material. I say that the material forming the basis of the articles exhibited at exhibit A of the affidavit of Anthony Dinan was clearly confidential and had been circulated on a strictly confidential basis. I say that the Tribunal in the course of its private investigative work, which is mandated by statute, seeks statements from persons it is envisaged may be called as witnesses at the public hearing. I say that these statements and the contents of the brief circulated are confidential and remain so until they are opened at the public hearing.
7. It is accepted that documents such as copies of folios, company office searches and the like are not of themselves confidential documents. However, when such documents are circulated with and in the context of other documents including, in many cases, statements made by witnesses who will be called to give evidence to the Tribunal, all of the material in the folder circulated by the Tribunal are designated by the Tribunal to be confidential and are so named. Such documents are opened at a public sitting of the Tribunal. It is noteworthy that at no time that I am aware of has the defendant published details of a company office search without attempting to put the results of that search in context whether in relation to the names of the directors of the company, properties owned by the company, profits earned by the company or otherwise for commercial reasons.”
The next few paragraphs of the affidavit explain how the Tribunal’s policy is carried out in practice. When seeking narrative statements the Tribunal directs that they are confidential documents. A sample letter is exhibited. In the sample letter exhibited, the Tribunal requested a narrative statement and set out why such a statement was necessary namely, “…they will provide the Tribunal with a document which will be circulated in advance of your client’s evidence to those persons likely to be affected by his evidence so that they may have the opportunity, if they wish, to attend for the hearing of your client’s evidence and to cross-examine him or furnish rebuttal evidence.” The person is further informed “that the matters referred to above are the subject of the Tribunal’s confidential preliminary investigation. In due course some or all of these matters will come into the public domain at a hearing of the Tribunal. Until that time, you and your client are obliged to ensure the confidentiality of your dealings with the Tribunal.”
In paragraph 10 of her second affidavit, Ms. Gribbin, refers back to paragraph 36 of her previous affidavit and reiterates the point that “where documents are leaked in advance the Tribunal is not in a position to protect the constitutional rights of parties affected. In that regard the Tribunal is unable to effectively conduct its inquiries and effectively fulfil its statutory mandate.” She goes on to make the further point that “the leaking of such material acts as a disincentive to parties coming forward with information essential for the work of the Tribunal.” I think it important to quote in full also paragraph 12 of this second affidavit of Ms. Gribbin. The paragraph reads as follows:
“12. I say that the Tribunal has an obligation to conduct the hearings in which allegations are made against numerous parties in a fair and proper manner. In particular I say that the Tribunal is mindful at all times of the constitutional rights of the parties against whom allegations are being made and in particular their right to a good name. I say that the effect of the policy of confidentiality, when properly operated, is that allegations made against certain parties are made within the proper forum of public hearings, that the full context and circumstances surrounding those allegations are made known at one and the same time as those allegations and that the party against whom the allegation is being made is given the proper opportunity to respond to those allegations as soon as practicable. Further I say that the party against whom the allegations are being made is given the opportunity to test these allegations by means of cross-examination within a reasonable time of those allegations being aired in a public forum.”
I would particularly draw attention to the use of the expression “the policy of confidentiality”. What this case is all about, in my view, is whether that policy as such is legal or not. It obviously impedes to some extent freedom of the press but the question is, having regard to the right to protection of the good names of persons involved and in particular the constitutional protection of those rights is such limitation not just reasonable but appropriate? In relation to some of the specific articles referred to in Mr. Dinan’s affidavit, Ms. Gribbin explains that in the case of the “Jim Kennedy” and “fifty councillors” stories, these form part of the “Coolamber” module and that the Tribunal had determined that these matters were to be inquired into in public and the brief or pack in respect of it had been circulated to limited parties. This circulation was in October, 2004 whereas the public hearings did not commence until the 7th December, 2004. The “Lenihan Flynn” and “Former Tanáiste” articles were written in circumstances where the Tribunal had directed that the parties were not to be named as those individuals were not yet on notice of the contents of the relevant statements. Ms. Gribbin asserts that the identification of the parties by Post Publications was a decision taken by the newspaper “in clear contempt and in breach of the directions of the Tribunal”. Mr. Dinan, of course, had alleged that the publication was in the public interest for the very reason that the parties had not been identified. Ms. Gribbin, for the reasons underlying all the Tribunal’s decisions, asserts quite the opposite. She says that the Tribunal is unable to agree that publication was in the public interest at that time. The non-disclosure of the names was itself in the public interest as those individuals were unaware of the contents of the statement “and were not able to exercise their constitutional rights and in particular their right to a good name.” In paragraph 21, Ms. Gribbin makes it clear that the order sought by the Tribunal “only extends to circumstances where the defendant is aware that the Tribunal has directed that documents are confidential. The Tribunal is not seeking to prohibit the publication of all information about the Tribunal nor in circumstances where the paper is unaware of a direction of the Tribunal.”
I turn now to the judgment of Kelly J., the trial judge. Having outlined the relevant evidence, he set out his “conclusions on the evidence”.
“1. In carrying out its functions the Tribunal has obtained information from third parties relevant to its inquiries.
2. Such information may consist of documents or statements.
3. When seeking narrative statements the Tribunal expressly represents that they will remain confidential until they come into the public domain at a hearing of the Tribunal. Until that time they will remain confidential.
4. In so far as documentary material is concerned it is subject to the protocol of the 14th January, 1998, which I have already set forth in this judgment.
5. On receipt of all of this information the Tribunal then collates and circulates all relevant documents (including the narrative statements of evidence of persons whom it proposes to call as witnesses at the public hearing at which such evidence will be tendered). This forms what has been referred to as a ‘brief’.
6. The circulation of such a brief is made to a limited number of persons in advance of the public hearing. In general these persons consist of those whose good name or reputation might be adversely affected if evidence of the type outlined in the narrative statements were to be given in public. This procedure is embarked upon with a view to giving such persons notice of the allegations so as to enable them to take whatever steps they believe appropriate in order to vindicate their reputations.
7. At the time when the brief material is circulated to this limited number of persons all of the material contained in it is directed by the Tribunal to be confidential. That is so regardless of the source or nature of the material which is contained in the brief. Thus, the Tribunal asserts that even public documents when contained in such brief are to be treated as confidential. Such confidentiality is to be maintained until the matters in the brief are opened at a public session of the Tribunal.
8. In circulating such a brief the Tribunal has made it clear that it purports to restrain disclosure of the entire contents of the brief.
9. This elaborate procedure is embarked on so as to ensure that the Tribunal conducts itself with constitutional propriety particularly with regard to the rights of third parties.
10. The Tribunal accepts the importance of the work carried out by the defendants in reporting on its hearings and the matters before it. The Tribunal does not accept that the defendants may report on matters arising out of documents which it has determined to be confidential.
11. The Tribunal rulings concerning confidentiality have not been honoured in the past. Many of the failures of the past in this regard have been deliberate and the Tribunal believes done to impede and frustrate its efforts. Nonetheless it has continued to work for the last eight years and this is the first time that an action of this sort has been taken by it.”
I find it necessary to comment on only three of these conclusions i.e. 7, 9 and 10. With regard to No. 7, as I understand it, the Tribunal is not asserting that a document which is in the public domain is in any circumstances a confidential document as such. This was expressly made clear in relation, for instance, to documents such as company searches and Land Registry Folios. The Tribunal, however, is asserting confidentiality pursuant to its own direction as to the fact that such a document has been included in the a particular brief. The Tribunal’s policy in this regard would seem to me to be reasonable, provided that it is legal, a question to be considered later in this judgment. A public document may be perfectly neutral per se as far as any question of injury to a person’s good name is concerned but if transmitted by the Tribunal to some person or persons in a particular context the effect may be quite different.
The learned trial judge has described in conclusion No. 9 the procedure adopted by the Tribunal as an “an elaborate procedure”. I have inferred, I hope correctly, that the word “elaborate” is used here in a somewhat pejorative sense. If so, for the reasons which I have already indicated, I would respectfully disagree with the learned trial judge. I think that provided it does not breach the Constitution or the Convention of Human Rights and provided it can be enforced, the procedure, even if it could be described as “elaborate” is quite sensible and probably necessary for the reasons that the Tribunal asserts to protect the constitutional rights of third parties.
The learned High Court judge is quite correct in conclusion No. 10 in his assertion that the Tribunal takes the view that it can impose confidentiality. But again for the same reasons and subject to the law to be considered later on in this judgment, I can see no objection to this approach.
The learned trial judge, in his judgment, then goes on to criticise (impliedly at least) the Tribunal in making no distinction between information obtained by it from a third party in circumstances where an assurance of confidentiality was given to such a party and material which is not covered by such an assurance. I think that there is a danger of confusion arising here. As I see it, there are two quite distinct aspects of confidentiality which have arisen in the functions of the Tribunal. One is that the Tribunal has been prepared to give undertakings as to confidentiality to persons who furnish it with statements or documents subject of course to the right of the Tribunal to make use of such statements and/or documents at public hearings. The question of what remedy or remedies a person who furnishes such statement or document would have against the Tribunal in the event of the Tribunal breaching such an undertaking does not arise for consideration in this case and indeed in my view, it has almost nothing to do with the case. It is the second aspect of confidentiality in the functioning of the Tribunal that does arise. That is the imposition by the Tribunal itself of an obligation of confidentiality in respect of the brief sent out. The learned trial judge is quite correct, of course, in noting that that purported imposition of confidentiality by the Tribunal extends well beyond documents or statements in respect of which express undertakings have been given by the Tribunal to the original person or persons who furnished them. The object for which the Tribunal purports to impose confidentiality would not be achieved if it confined its imposition to those documents or statements. There would indeed be a further practical problem. If the Tribunal in sending out its brief to interested persons had to sift through the contents and select for confidentiality only those in respect of which an express undertaking had been given, a letter accompanying the documents precisely specifying which document was to be confidential would have to be sent out. This might well prove time consuming and administratively impractical. Ideally, the letter accompanying the brief should expressly state that a document which is of its nature a public document would not of itself be subject to the confidentiality but that confidentiality would be required as to the fact of its conclusion in the brief. I do not think, however, that this omission should be fatal to the Tribunal’s claim in these proceedings as it is quite clear that no issue relating to the simple publishing by the newspaper of a public document arises. Nor indeed has it ever done so.
The learned trial judge, however, appears to take the view that the Tribunal can only impose confidentiality in relation to documents in respect of which the Tribunal itself has given an undertaking as to confidentiality to the provider of them. The judge refers to the background against which the application must be viewed. In this regard he refers to the right to free expression recognised under Article 40.6.1.i of the Constitution and to the later part of the Article which there is specific mention of the liberty of expression of the press. He refers to the Irish Times v. Ireland [1998] 1 IR 359 and in particular to the judgment of Barrington J. who held that the article protected a dissemination of information as well as the expression of convictions and opinions. I find it difficult to see a relevant connection between the noble views of Barrington J. on the one hand and the sleazy leaking of Tribunal documents on the other.
The learned trial judge then goes on to treat of the right of the freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms but he concedes that both the constitutional rights and the Convention rights are subject to limitations. Article 10 expressly permits restrictions “for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”
The learned High Court judge rightly then points out further that even at common law freedom of speech and the press will be protected and he refers in particular to R. v. Central Independent Television plc Fan. 192. But again I would make the comment that the noble sentiment expressed in that case by Hoffmann L.J. (as he then was) had no relevance to the issues in this case. The same is true, in my view, of other important authorities referred to in the judgment.
Among the quotes to which the learned trial judge has attached significance is the following quotation from the judgment of Hardiman J. in O’Callaghan v. The Tribunal Supreme Court (unreported 9th March 2005).
“In my view, the Tribunal cannot by the unilateral adoption of a ‘policy’ on its own part confer the quality of confidentiality, absolute unless the Tribunal itself waives it, on any material. To permit the Tribunal to do this would, in my view, be to allow it in effect to legislate for the deprivation of a party before it of rights to which he is entitled.”
That passage does not support the case being made by Post Publications Limited. It has never been in dispute that any undertaking as to confidentiality given at the investigative stage is subject to appropriate use being made of the document or information at a public hearing. What Hardiman J. was criticising was the decision of the Tribunal not to produce documentation at a public hearing when fair procedures required that it should be produced for the purpose of cross-examination. At p. 48 of his judgment, the learned High Court judge indicates that he is not in principle averse to an injunction being made against a newspaper leaking tribunal documents. The following passage from that page makes this clear.
“Had the Tribunal been less ambitious and sought merely to ensure that documents which it obtained in confidence would have their confidentiality preserved by injunctive relief, there might be something to be said for the courts intervention; but that is not what is sought. Both in the affidavit evidence, the form of order sought and the submissions made, it is quite clear that the Tribunal seeks to go much further and to render confidential everything contained in a brief regardless of nature or source.
Even if one considers the position apart from O’Callaghan’s case could there be any basis to support such a wide claim of confidentiality?”
In the last analysis this is a matter of judgment and I respectfully differ from the view taken by the learned High Court judge for the reasons which I have already indicated.
The next section of the High Court judgment deals with the law of confidentiality as such. What is discussed essentially, and quite correctly, is the equitable rather than the contractual right to confidentiality. The trial judge set out useful principles enunciated by Megarry J. (as he then was) in Coco v. A.N. Clarke (Engineers) Limited [1969] R.P. C. 41. The judge quoted the following passage from the judgment of Megarry J.
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
The learned trial judge with references to the first of these requirements refers to dicta of Lord Greene where he said that “something which is public property and public knowledge” cannot per se provide any foundation for proceedings for breach of confidence. Lord Greene’s reasoning was that there could be “no breach of confidence in revealing to others something which is already common knowledge”.
It is interesting and helpful to apply those principles of Megarry J. and Lord Greene M.R. to the present appeal. I have already made clear that it is not the case of the Tribunal that it can impose confidentiality on a public document per se. The information that the public document is included in the brief should be regarded as confidential in the view of the Tribunal and I think that such information given the context in which the Tribunal asserts that view does “have the necessary quality of confidence about it.” I believe this to be so even if in a few isolated cases it may well be that context is not of great significance. It is reasonable in all the circumstances for the Tribunal to have this policy because normally, the context in which the document is sent out will be relevant and should be kept confidential until the public hearing. The second requirement of Megarry J. is also fulfilled in that the Tribunal itself is imposing confidentiality on the person who is receiving it in advance of the public hearing. That is quite a normal basis for confidentiality and indeed newspapers themselves and media outlets are well accustomed to embargos being placed on information pending their being made public in the right way. The third requirement of Megarry J. is also fulfilled in this case as in my view the leaking of the information with knowledge of its confidentiality was clearly unauthorised. Such leaking was to the detriment of the Tribunal’s orderly conduct of its business.
The learned High Court judge in the view which he has taken has also relied on the following passage from the judgment of Lord Goff of Chieveley in Attorney General v. Guardian Newspaper [1990] 1 AC 109.
“I start with a broad principle (which I do not intend in any way to be definitive) that a duty of confidence arises where confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent of which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious.”
I find nothing in that passage which if applied would disentitle the Tribunal to the relief which it seeks.
The learned trial judge then refers to the case which in this jurisdiction is the most relevant on the law of confidentiality in general. That is House of Spring Gardens v. Point Blank [1994] I.R. 611. The following passage from the judgment of Costello J. in the High Court which was approved by the Supreme Court reads:
“First, I think that the information must be information the release of which the owner believes will be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e. that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous headings must be reasonable. Fourth, I think that the information must be judged in light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information and trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.”
The learned trial judge commenting on that quotation from Costello J. observed as follows:
“Thus, it appears that, whether one is speaking about confidentiality in the context of trade or commerce or of the type dealt with in Attorney General v. Times Newspapers or indeed the present case, confidentiality can only attach to information which is truly confidential. It must have the necessary quality of confidence about it. Thus documents or information in the public domain cannot be regarded as confidential.”
I infer from that passage in his judgment that the learned trial judge takes the view that the information imparted as a matter of fair procedures in order to give advance notice to some person who could be damaged by evidence be given at a public hearing does not have “the necessary quality of confidence about it”. Once again, it would appear to me that his reasoning is based on the fact that the brief sent out may include a document which is in the public domain such as a company search or a folio. However, as I have already pointed out more than once, the response of the Tribunal to this objection is that it never intended nor could anyone have thought that it intended that a document in the public domain, as such, would be covered by an obligation of confidentiality. What the Tribunal was trying to ensure was that the fact of such documents being included in the brief would be kept confidential. At any rate, the brief for the most part would consist of copies of statements or documents that were not yet in the public domain and were intended by the Tribunal to be kept private until a public hearing for the purposes of overall fairness and the overall good order in conducting the Tribunal. In my view, those copy documents and statements have “the necessary quality of confidence about (them)”.
The obligation of confidentiality independently of contract is an equitable obligation as pointed out by Costello J. when he relied on a number of English authorities. It seems to me therefore irrelevant to the question of whether the newspaper was entitled to disseminate such information that it had not itself entered into some contract with the Tribunal as to confidentiality. Once it had notice of the policy of the Tribunal and of the intention that documentation sent out to these persons would be kept confidential pending public hearings it was bound in equity not to flout such confidentiality.
Again on the next page of his unreported judgment the learned trial judge makes clear quite correctly that “the only material which could be capable of protection is that which has the necessary quality of confidence about it.” But as I have already pointed out, his opinion that it did not have that “necessary quality” seems to be based on the fact that the briefs may, from time to time, contain documents which in the ordinary way were in the public domain. As I understand it, the learned High Court judge was not in principle against granting an injunction. What he objected to was the width of the injunction sought. In my opinion, the policy adopted by the Tribunal of sending out a brief and making the contents confidential is a reasonable one. I cannot imagine that the Sunday Business Post would have the slightest interest in publishing a document in the public domain unless it could put it into context. It is that context which the Tribunal quite reasonably wants to be kept private until the public hearing.
When reserving his judgment, the learned trial judge did suggest to the parties that he might want to re-enter the matter for discussion as to a narrower form of injunction than those sought. The course of action which the trial judge took in the event cannot be said to contravene any expressed intention. Nevertheless, I am satisfied that if the learned trial judge had re-entered the matter and indicated to the parties that he was unhappy with the form of injunction suggested, counsel for the Tribunal would have applied their minds to achieving a narrower form of injunction that might have been acceptable to the judge. The judge was in no way obliged to facilitate the parties in that way but I think that there was an element of expectation (I will deliberately not use the word “legitimate”) on the part of counsel for the Tribunal that if the outcome of the action was to be determined on the basis of the form of injunction sought it might seem likely that the judge would have permitted further discussion.
Before reaching my final conclusion, there is one other matter which was aired at the hearing of the appeal and with which I would need to deal. It has been suggested that for the Tribunal to create any element of confidentiality in respect of documents or information would require a special enactment in the Tribunal of Inquiries Acts or elsewhere. The argument then runs that the Tribunal being a creature of statute does not have inherent powers. I cannot accept this argument for a combination of reasons. First of all, the system of delivering an advance brief to somebody who might be adversely affected by evidence likely to emerge at a public hearing arises directly from the Constitution and the constitutional obligations both to adopt fair procedures and to protect the good names of persons. If the Tribunal did not owe that constitutional obligation it would be much simpler and more efficient from its point of view to keep everything secret until the public hearing. A constitutional obligation superimposed in this way and to some extent creating problems for the efficient running of the Tribunal cannot be more than is reasonable in all the circumstances and it, therefore, must necessarily embrace any desirable limitation that does not derogate from that obligation such, as in this case, the imposition of confidentiality. The right to impose such confidentiality is, therefore, merely an element in the carrying out of the constitutional obligation and where it is reasonable it would seem to me that there is an implied right by virtue of the Constitution to impose it. A special section is not therefore necessary. Furthermore and for the same reason the legal basis for the alleged restriction exists for the purposes of Article 10 of the European Convention of Human Rights. The imposed confidentiality is necessary for the “protection of the reputation or the rights of others.”
I am satisfied that the evidence establishes that there has been serious leaking over a number of years by the respondent’s newspaper and other newspapers of documents and information which would have been known to have been intended to be kept confidential pending a public hearing. I am equally satisfied that such leakages undermine the work of the Tribunal and that the Tribunal has a right to seek an injunction to stop it. It is perhaps unfortunate that at the hearing before the High Court the Tribunal did not place before the learned High Court judge alternative more precisely worded and somewhat narrower forms of injunctions but I do not think that on account of this, the court should take the view that no injunction of any kind should be granted. I have carefully considered the alternative slightly more modified form of injunction suggested at the hearing of this appeal by Mr. Paul O’Higgins, S.C.. I have already cited that form of draft injunction but I will cite it again now for clarity.
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing: –
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the document so circulated.”
I would allow the appeal by setting aside the order of the High Court and substituting for that order an injunction in those terms.
Emmett Corcoran and Oncor Ventures Limited T/A The Democrat v The Commissioner of An Garda Síochána
and Director of Public Prosecutions
2021/18
Court of Appeal [Approved]
22 April 2022
unreported
[2022] IECA 98
Ms. Justice Costello
April 22, 2022
JUDGMENT
1. This appeal concerns the balance between the obligations of An Garda Síochána to investigate serious crime on the one hand and the right of a journalist to protect his sources from disclosure on the other. On 4 February 2021, the High Court (Simons J.) crafted a bespoke Order delimiting the information on the mobile phone of the first named applicant, Mr. Corcoran, which the gardaí could access following the seizure of the phone on foot of a warrant issued by a District Court Judge to a member of An Garda Síochána. Both parties claim that the trial judge erred in making this order, and at the heart of this appeal is the balancing of the conflicting rights and duties of the parties: the entitlement or otherwise of An Garda Síochána to access material while investigating serious crime but which will or may identify journalistic sources of the applicants.
Background
2. In 2018, Mr. Corcoran and Mr. Phelim O’Neill, a solicitor, incorporated the second named applicant (“the publisher”) to publish a local weekly newspaper, known as the Democrat, in Longford, Leitrim and Roscommon. By December 2018, sixteen or seventeen editions had been published with a weekly circulation of between 5 and 6,000. Mr. Corcoran is the editor of the Democrat and he is a journalist who has been published in the Irish Times. The Democrat also has an online presence. Mr. Corcoran resides in Strokestown, County Roscommon.
3. On 11 December 2018, a property at Falsk, Stokestown was repossessed pursuant to a court order for possession and security personnel acting on behalf of the charge holder went into occupation of the property. On 16 December 2018, at approximately 5 a.m. a violent and serious incident occurred in which a number of masked and armed people attended at the premises, attacked and injured the security personnel and set a number of vehicles alight. Mr. Corcoran says he attended at the aftermath of the incident and took photos and videos which he uploaded on the website of the publisher and which were viewed and reproduced many times.
4. On 19 December 2018, Mr. Corcoran was interviewed under caution by members of An Garda Síochána investigating the incident of 16 December 2018. He was accompanied by Mr. O’Neill who was solicitor for both of the applicants. Mr. Corcoran offered to make available all copies of videos and photos which he took on the occasion and he did so on the following day. He declined to reveal his sources and in particular the individual who alerted him to the event, asserting “journalistic privilege”.
5. The gardaí continued their investigation into this extremely serious incident. Three and a half months later, on 2 April 2018, Sergeant Siggins applied ex parte in chambers to a District Court judge in Roscommon for two search warrants: one in respect of Mr. Corcoran’s home and one in respect of the publisher’s premises. The application was made pursuant to s. 10 of the Criminal Procedure (Miscellaneous Provisions) Act 1997 (“the 1997 Act”). The provisions of the Act will be considered in greater detail below. At present, it is sufficient to state that if a judge of the District Court is satisfied by information on oath of a member of An Garda Síochána not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and of any persons found at that place.
6. Sergeant Siggins swore an information in the following terms:-
“THE INFORMATION of Sergeant Dermot Siggins of Castlerea Garda
Síochána Station.
Who says on oath:-
I am a member of the Garda Síochána not below the rank of sergeant.
I have reasonable grounds for suspecting that – evidence of, or relating to, the commission of an arrestable offence (within the meaning of section 2(1) of the Criminal Law Act 1997, as amended by section 8 of the Criminal Justice Act 2006), False Imprisonment, unlawful possession of a firearm, assault causing harm, criminal damage, is to be found at a place (within the meaning of section 10(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997), namely [ ], Strokestown, the home of Emmet Corcoran in the said Strokestown, District Court Area No. 4 district.
The basis for such grounds is as follows –
In the early hours of the 16th December 2018 at Falsk, Strokestown, a group of approximately 30 men attacked a group of 8 security men with weapons and a firearm inflicting injuries on three of the security men. The immediate aftermath of the attack was recorded on a device which was handed over voluntarily by Emmet Corcoran to Sergeant Dermot Siggins at Roscommon Garda station on 20th December 2018. [NAME REDACTED] one of the injured parties alleges that when he was on the ground just after the attack a Peugeot vehicle pulled up, a male wearing square shape glasses, heavy set, approx. 5′ 8”, blue jeans, tan/brown dealer boots, was recording on his mobile phone, he was accompanied by a man in a balaclava who was wearing a camouflage jacket with DPM on it. He was in possession of a wood cudgel with a knotted head on. This video was recorded prior to the emergency services arriving. As the emergency services lights were seen the man in the balaclava told the other male that it was time to go. A video of the immediate aftermath of the incident was then posted online on Facebook page Democrat and also on Democrat.ie. These sites are co-owned by Emmet Corcoran and Phelim O’Neill. The description of the male given by the injured party matches the description of Emmet Corcoran who was present with the person with the balaclava at the scene. Furthermore the USB Hardrive (sic) handed over by Mr Corcoran was examined by the Computer Crime Cyber Unit which indicates this footage was downloaded from an iphone 6 between the hours of 5:34hrs – 5:40hrs on the 16th December 2018. The article in both sites contains information that was not in the public domain unless the person who posted it was present at the scene. I believe from investigations carried out there are reasonable grounds to believe Emmet Corcoran was present at the attack and I believe an iphone 6 and further video footage which may identify other suspects sought in the investigation may be found on an iphone 6 or other computer or media device at Democrat.ie Newspaper, [address redacted], Strokestown, Co Roscommon and the home of Emmet Corcoran at [address redacted], Strokestown, Co. Roscommon.
And I hereby apply for the issue of a warrant under section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted by section 6(1)(a) of the Criminal Justice Act 2006) in respect of that place and any persons found at that place.”
7. An information, in virtually identical terms, was sworn in respect of the premises of the publisher in support of the application to search its premises. The information does not state that Mr. Corcoran is a journalist and the Democrat is a local newspaper, though it is evident from the content of the information that both are the case. Sergeant Siggins did not refer to the fact that Mr. Corcoran had refused to identify his sources during an interview under caution and that he had asserted journalistic privilege. While Sergeant Siggins swore two affidavits in these proceedings, there is no evidence that the District Court judge was told that the applicants’ rights under the Constitution and Article 10 of the European Convention on Human Rights were engaged by the application, or that he was given any guidance as to the jurisprudence applicable in such circumstances, or the threshold which must be satisfied before those rights could be interfered with by the issuing of the warrant sought.
8. Sergeant Siggins attended early on the morning of 4 April 2019 at Mr. Corcoran’s home. He indicated to Mr. Corcoran that he intended to seize Mr. Corcoran’s mobile phone on foot of the warrant issued by the District Court judge. When Mr. Corcoran protested, he indicated that it was a criminal offence to obstruct him in executing the warrant. As a result, under protest, Mr. Corcoran handed over his phone. The phone was powered off and Mr. Corcoran refused to inform Sergeant Siggins of the password which would enable the content of the device to be accessed immediately.
9. Before members of An Garda Síochána could access the data on the phone the applicants applied to the High Court that afternoon for leave to seek Judicial Review.
The Proceedings
10. On 4 April 2019, the High Court (Noonan J.) granted the applicants leave to apply for judicial review for the reliefs set forth in the statement of grounds and made an order restraining the first named respondent and any member of An Garda Síochána or any person with knowledge of the order from examining or otherwise attempting to access information on the phone, the subject matter of the proceedings, to the following day at 10:45 a.m.
11. In the statement of grounds, the applicants describe themselves respectively as a newspaper editor and newspaper publisher. The applicant sought an order of certiorari in respect of the warrant and an order of mandamus requiring the respondents to deliver over to the applicants all and any information and data accessed on the phone together with the deletion of any copies retained by the respondents, and an order prohibiting the second named respondent from accessing, processing or relying on any data or information obtained from the phone.
12. On 5 April 2019, counsel for the first named respondent (“the Commissioner”) undertook to the court that neither he nor any member of An Garda Síochána would examine or otherwise attempt to access information on the phone, the subject matter of the proceedings, pending further order. The second named respondent took no part in the proceedings.
13. By letter dated 10 May 2019, the Chief State Solicitor acting on behalf of the Commissioner offered to compromise the proceedings on the basis that Garda Telecoms personnel would download/extract all the information contained on the phone which would be stored on a secure, encrypted external hard drive and that those personnel would copy certain parts of the information into a separate document to wit:-
“4. …
(i) The telephone calls to and from the phone for the period of the 11th-17th December, 2018 inclusive;
(ii) The emails and text message, including other social media messaging services such as Whatsapp, Facebook, Messenger etc. sent from and received to the phone for the period of the 11th -17th December, 2018 inclusive;
(iii) The images contained on the memory of the phone which were either captured, uploaded or placed onto the phone in the period of the 11th – 17th December, 2018 inclusive;
(iv) The videos which were recorded, uploaded or otherwise placed on the phone in the period of the 11th – 17th December, 2018 inclusive;
(v) Other information contained in the phone which was uploaded to it in the period of the 11th – 17th December, 2018 inclusive.
All the foregoing is predicated on the fact that the phone is appropriately date and time stamped so that it is possible to see the information contained on it is from the 11th – 17th December, 2018 and that the data can be acquired and decoded using a standard forensic techniques.
…
The period of the 11th – 17th December 2018 is reasonable and proportionate to the public interest in the investigation and prosecution of criminal offences relating to the events at Falsk, Strokestown, Co. Roscommon on the 16th December, 2018.
5. The contacts (including email addresses) or saved named (sic) for contacts on the telephone for the calls and messaging data (telephone calls, text messages and social media platform messaging) during the period of the 11th – 17th December, 2018 inclusive would also be extracted and placed on the document with the other material referred to above.”
The Commissioner asserted that this was a reasonable and proportionate response to the issues raised in the proceedings. However, the letter went on to state that: –
“… the proposal is made without prejudice to the entitlement of An Garda Siochana to seek to extract further information from the phone for appropriate investigative purposes relating to the on-going investigations being carried out into events in Falsk, Strokestown, Co. Roscommon and other inquiries arising out of that investigation.
If any such further information was to be sought from the phone, appropriate notification would be provided to Mr. Corcoran so that he may make a submission to the Garda Commissioner …”
14. The statement of opposition was filed on 21 June 2019. The Commissioner pleaded, inter alia, that the matters did not give rise to any justiciable issue that the contents of the phone are subject to any privilege known to law. The Commissioner denied that any “journalistic privilege” known to law existed over the phone and without prejudice to this position he said that the procedure proposed in his letter of 10 May 2019 adequately protected the interests of the applicants (if any) in the contents of the phone.
15. The applicants, through their solicitors, replied to the offer of 10 May 2019 by a letter dated 13 August 2019. They said that they never had any difficulty with providing the videos and photographs taken at the scene and agreed to the matters set out in para. 4 (iii) and (iv). They objected to disclosure of a journalist’s sources and thus to the balance of the matter sought in paras. 4 and 5 of the letter of 10 May. They particularly objected to the fact that the proposal was made without prejudice to the entitlement of An Garda Síochána to seek to extract further information from the phone for “appropriate investigative purposes relating to the on-going investigation” and other enquiries arising out of that investigation.
16. There were exchanges of affidavits between the parties and written submissions and supplemental written submissions at the direction of the court. The matter was heard over three days in July 2020 and judgment was delivered on 11 September 2020.
The Decision of the High Court
17. The High Court held that the gravamen of the applicants’ case is that the Oireachtas has failed to enact legislation which prescribes an appropriate procedure whereby court authorisation is required prior to the issuance of a search warrant in respect of premises or property belonging to a journalist. They submit, by reference to case law of the European Court of Human Rights, that a procedure must be prescribed by law whereby a court can determine, prior to issuing a search warrant, whether there exists a public interest which overrides the principle of protection of journalistic sources. They argue that it is impermissible for An Garda Síochána to invoke the conventional search warrant procedure in s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 in any case where there is a prima facie claim of journalistic privilege. This is because the existing statutory procedure does not allow for the possibility of the consideration of a claim of journalistic privilege prior to the issuance of a search warrant.
18. The court identified the issues thus arising as follows:-
“8. … First, the nature and extent of the right engaged under the Constitution must be examined. Whereas the case law recognises that, in certain circumstances, a journalist may be entitled—as a corollary of the right of freedom of expression—to withhold details of his or her confidential sources, the precise range of circumstances are not yet fully defined. Secondly, the meaning and effect of section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as substituted) must be considered. Thirdly, the legality of the search and seizure must then be ruled upon. Fourthly, if the search and seizure is found to be unlawful, the consequences which flow from that finding must be considered. Finally, in the event that the proceedings cannot be resolved by reference to the constitutional law issues, it will then become necessary to consider the implications, if any, of the European Convention on Human Rights Act 2003 .”
19. The High Court considered the guarantee of freedom of expression under the Constitution (at paras. 32 to 59). At para. 60, Simons J. summarised the principles established by the caselaw as follows:-
“(i). The Constitution protects not only the right of the citizens to express freely their convictions and opinions, but also the right of organs of public opinion—such as the radio, the press, the cinema—to liberty of expression.
(ii). These rights are not absolute or inviolable, and may be overridden by a court by reference to some general balancing test based on the public interest.
(iii). It follows as a corollary of these express rights that a journalist may, in certain circumstances, have an implied or derived right to protect the identity of their confidential sources. This right is seen as necessary to allow journalists to investigate and report on matters of public interest. A person might only be prepared to engage with a journalist if their identity as a source is protected. For example, an employee who wishes to report wrongdoing by their employer may be fearful of reprisals if they were to be identified as the source of a story.
(iv). The right to protect a source is not absolute or inviolable. The judgment in Re O’Kelly (1974) 108 I.L.T.R. 97 suggests that this right may well be outweighed by the obligation of all citizens, including journalists, to give relevant testimony with respect to criminal conduct. Whereas the more recent judgments have attached greater importance to the protection of journalistic sources, the special position of criminal proceedings has nevertheless been adverted to in those judgments.
(v). The balancing exercise must be carried out by a court of law. It is not enough that a journalist simply asserts privilege: the claim must be adjudicated upon by a court. A journalist is not entitled to pre-empt such an adjudication, by deciding unilaterally to destroy documents deliberately in response to a request for disclosure.
(vi). In all of the case law discussed above, the question of journalistic privilege had come before the court by way of a specific procedural mechanism, e.g. an application to enforce the orders of a tribunal of inquiry, an application for the discovery of documents in civil proceedings, or an application for letters rogatory. As discussed presently, one of the principal disputes between the parties in the within proceedings concerns the identification of the procedural mechanism by which, and the forum before which, the Applicants’ claim for journalistic privilege is to be determined. Both sides are now agreed that it does not fall for determination by the District Court in the context of an application to issue a search warrant.
(vii). The case law has not addressed the issuing and execution of a search warrant against a journalist. In particular, the courts have not yet had to consider the chilling effect which such actions may have on a journalist (even in instances where no material is discovered). This has, however, been addressed in detail in the case law of the ECtHR.”
20. The trial judge then considered the interpretation of s. 10 of the 1997 Act and held as follows:-
“76. … The District Court is required to be satisfied that there are “reasonable grounds” for suspecting that evidence of, or relating to, the commission of an arrestable offence (as defined) is to be found in the place in respect of which the warrant is sought. The Oireachtas has determined that the potential interference with the property and privacy rights of a person affected by a search warrant is justified by the public interest in the investigation and prosecution of serious criminal offences provided that this “reasonable grounds” criteria is met. The legislation does not expressly address other rights which may be affected by the execution of a search warrant. No provision is made, for example, for the contingency of seized material being protected by legal professional privilege. In practice, An Garda Síochána would, presumably, adopt the pragmatic approach of not examining any material in respect of which legal professional privilege is claimed, pending an adjudication by a court on such a claim.
77. The section does not, in terms, make any reference to a distinction between participants and non-participants in the alleged criminal offence, still less does it make any reference to the position of a journalist. On its face, therefore, there is nothing in the section which requires either the police authorities who are seeking the warrant, or the District Court, to consider the position of a journalist or the need to protect journalistic sources.”
21. He emphasised that both parties agreed that they do not contend for an interpretation of the section which would require the District Court to carry out a balancing of rights for the purpose of Article 40.6.1.i of the Constitution. He noted that the application is to be made ex parte, in camera, and that the section excludes the possibility of an inter partes hearing. He therefore concluded that no balancing exercise of the type contended for by the applicant can be carried out in the context of an application for a search warrant under the section. He held that the District Court did not have jurisdiction on a warrant application to determine any issue in respect of journalistic privilege.
22. The applicants refined their position during the hearing in the High Court. They argued that the procedure under s. 10 did not allow for the possibility of a consideration of a claim of journalistic privilege and, accordingly, that it was impermissible for An Garda Síochána to invoke the procedure in any case where there is a prima facie claim of journalistic privilege. At para. 90, the trial judge held:-
“90. The applicants’ case is predicated on an assumption that, in the circumstances outlined in Mr. Corcoran’s affidavits, they are entitled to rely on journalistic privilege to resist disclosing the content of the mobile telephones. The applicants’ criticisms of the procedures adopted by an Garda Siochana all flow from that assumption. For the reasons which follow, I have concluded that that assumption is not well founded, and that there is no right to rely on a claim of journalistic privilege in this case.
…
92. The height of the applicants’ case is that the identity of the individual who had been the source of the “tip-off”, which led to Mr. Corcoran attending at the aftermath of a criminal incident, should be protected. Perhaps tellingly, Mr. Corcoran has provided no information whatsoever as to the circumstances in which this individual approached him. In particular, there has been no attempt to explain what the motivation of the source may have been or what public interest he or she sought to advance by the publication of the criminal incident.”
23. The trial judge from there carried out a balancing exercise between the public interest in the investigation and prosecution of criminal offences and the public interest in the protection of journalistic sources at paras. 93 to 102 of his judgment. At para. 96, he held that the criminal conduct (which he described as arising out of a serious assault and the destruction of property) is extraneous to and separate from the disclosure or publication. He was satisfied that the public interest in ensuring that all relevant evidence is available in the pending criminal proceedings overrides the claim for journalistic privilege in the case. At para. 98 he held:-
“Thirdly, the nature and extent of the examination of the mobile telephone proposed by An Garda Síochána is proportionate in that it is confined to a very short period of time. The detail of the proposed examination has been set out in the letter from An Garda Síochána summarised at paragraph 26 above.”
The trial judge made no express reference to journalistic contacts as opposed to the seeking out and preservation of evidence, in particular the video footage and digital photographs taken by Mr. Corcoran. On the other hand, at para. 102, he said that he had regard to the fact that the evidence did not establish that the journalist’s source was motivated by the desire to provide information which the public was entitled to know and he cited a decision of the European Court of Human Rights (“ECtHR”) in Stichting Ostade Blade (App. No. 8406/06) where the court held that “source protection” was not in issue where the information was submitted to a journalist by the perpetrator of a criminal offence.
24. The trial judge considered the arguments of the applicants based on the European Convention on Human Rights (“ECHR” or “the Convention”). He noted that the applicants had not sought a declaration of incompatibility pursuant to s. 5 of the European Convention on Human Rights Act 2003 (“the 2003 Act”) in respect of s. 10 of the Act of 1997. Having observed that the Convention is not directly applicable in domestic law, he noted that it was possible to rely on the Convention indirectly pursuant to the 2003 Act. Initially, the applicants had sought to rely on the interpretative obligation under s. 2 of the 2003 Act but this was no longer possible given the consensus between the parties that s. 10 of the 1997 Act could not be interpreted so as to allow for an inter partes hearing. Instead, the applicants sought to rely on s. 3 of the 2003 Act. This provides:-
“3.(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its role in a manner compatible with the State’s obligations under the Convention provisions.”
25. Simons J. concluded at paras. 116 and 129 that:
“… The applicants are not entitled to assert journalistic privilege under the European Convention in respect of the content of the mobile telephone. The same rationale applies to the right under the European Convention as to the Constitutional rights. In the absence of any breach of the European Convention, an Garda Siochána acted lawfully in invoking the procedure under s.10 of the Act of 1997 in the particular circumstances of the case.
…
129. The examination of the content of the mobile telephone is to be limited to the following items.
(i) The telephone calls to and from the phone for the period of the 11th – 17 th December, 2018 inclusive;
(ii) The emails and text messages, including other social media messaging services such as Whatsapp, Facebook Messenger etc., sent from and received to the phone for the period of the 11th – 17th December, 2018 inclusive;
(iii) The images contained on the memory of the phone which were either captured, uploaded or placed onto the phone in the period of the 11th – 17th December, 2018 inclusive;
(iv) The videos which were recorded, uploaded or otherwise placed on the phone in the period of the 11th – 17th December, 2018 inclusive;
(v) Other information contained in the phone which was uploaded to it in the period of the 11th – 17th December, 2018 inclusive.”
He directed the parties to make further submissions as to the form of the order and the costs of the application.
The Second Judgment
26. Having decided that he would make a limited order permitting the Commissioner to access the content of the mobile phone, Simons J. delivered a supplemental judgment on 4 January 2021 dealing with the form of order, the costs of the proceedings and the issue of a stay on the order. At paras. 3 and 4 of the supplemental judgment he held:-
“3. The form of order proposed in the principal judgment had been a declaration to the effect that the examination of the content of the journalist’s mobile telephone is to be limited to specified content created during the period 11th – 17th December 2018 (both dates inclusive). However, it now appears from the written submissions filed on behalf of An Garda Síochána that the actual logistics of accessing the content of a mobile telephone are more complex than I had appreciated. In particular, it seems that it is not technically possible to download part only of the content of a mobile telephone. Instead, it will be necessary to download and decode the full file system. A separate report will then be prepared identifying the relevant content over the period 11th – 17th December 2018.
4. For the avoidance of any doubt, the report is not to include contact details (such as names, telephone numbers, email addresses etc.) saved on the mobile telephone.”(emphasis in original)
He decided to make an order restraining members of an Garda Síochána from accessing and examining the content of the mobile telephone other than in accordance with the procedure he set out, granted both parties liberty to apply and stayed his order pending any appeal.
27. As regards the allocation of costs, he ordered the Garda Síochána to pay the applicants the costs of the proceedings in the following terms:-
“28. … I have concluded that the applicants acted reasonably in continuing to pursue the proceedings notwithstanding the offer of settlement. Had the applicants accepted the terms of settlement, they would have been in a worse-off position than they are now, having pursued the proceedings to full hearing. The terms of the court’s order are more restrictive than the terms of settlement, which had expressly left over the possibility of extracting further information from the mobile telephone. Insofar as costs were concerned, the applicants were, at the very least, entitled to the costs of the leave application given the precipitous manner in which the device was seized. Given that the offer of settlement did not undertake to pay even these costs, the applicants acted reasonably in rejecting same.
29. More generally, it was reasonable for the applicants to pursue the proceedings in circumstances where An Garda Síochána’s position was that any balancing of the competing public interests engaged in the seizure of a journalist’s mobile telephone was a matter for the High Court rather than the District Court.”
Proceedings leading up to the appeal
28. Following the delivery of the judgment of 4 January 2021, the Commissioner understood for the first time that An Garda Síochána were not entitled to access the contacts on the mobile phone. The Commissioner decided to apply to the trial judge pursuant to the order granting the parties liberty to apply, in order to clarify this point. The Commissioner had understood from para. 129 of the principal judgment that he was to have access to the contacts on the mobile phone. He also decided to appeal the order as to costs and he filed a notice of appeal on 2 February 2021 which was confined to the issue of costs.
29. On 12 February 2021, the Commissioner applied to the High Court to re-enter the matter to “ventilate” the “contacts” issue. On 9 March 2021, the matter was listed for mention in the High Court. The applicants indicated that they wished to cross-appeal the substantive decision and they would also be applying for a “leapfrog” appeal to the Supreme Court. The High Court put the matter back for mention to 25 March 2021.
30. At the first Directions hearing in the Court of Appeal on 19 March 2021, the matter was adjourned to 16 April 2021 to allow the applicants to file their respondents’ notice and cross-appeal. On 25 March 2021, the High Court adjourned the matter again for mention to 6 May 2021.
31. On 15 April 2021, the respondents’ notice and cross-appeal was delivered. This greatly expanded the scope of the appeal – as the respondents had indicated would be the case. On 16 April 2021, the matter was adjourned to the following week in the Directions List to allow the Commissioner to consider the respondents’ notice. The Commissioner decided to serve a respondents’ notice to the respondents’ (the applicants’) cross-appeal. Strictly speaking, no such provision exists under the RSC but it was deemed expedient in view of the fact that the cross-appeal had greatly expanded the scope of the appeal.
32. On 6 May 2021, the High Court adjourned the question of the disclosure of the contacts generally with liberty to re-enter to await the outcome of the proceedings before this court. The Supreme Court having then refused the application for a leapfrog appeal, on 10 May 2021, the Commissioner served a respondents’ notice to the appellants’ crossappeal which in turn included a cross-appeal in respect of the exclusion of the contact details from the High Court order. The appeal was listed for hearing on 22 November 2021 for a day and a half.
33. On 30 July 2021, the appeal was mentioned in this court’s case management list, at which point the applicants objected to the Commissioner’s cross-appeal in respect of their cross-appeal. I directed that if the Commissioner wished to pursue an appeal in relation to the exclusion of the contacts from the data the gardaí were authorised to access, the Commissioner must bring an application seeking leave to amend his notice of appeal and any such motion was to be returnable for 8 October 2021. The application was not filed in accordance with this direction. On 15 October 2021, at the callover of the appeal, counsel for the Commissioner asked for an extension of time in which to bring the motion. This was strongly opposed by counsel for the applicants and I held that the issue whether the Commissioner could argue this point was to be determined by the court hearing the appeal.
34. Thus, the applicants appealed the substance of the order of the High Court and the Commissioner appealed the exclusion of all contact details from the data to be disclosed to An Garda Síochána and the award of costs in favour of the applicants. At the hearing of the appeal, the court concluded that it was important that all matters at issue between the parties be fully argued and determined by the court and thus no party was prevented from advancing any argument arising out of the two judgments of the High Court, whatever the precise status of the pleadings in relation to the appeal might be.
Constitutional protection of freedom of expression and journalistic privilege
35. Article 40.6.1.i of the Constitution provides as follows:
“The State guarantees liberty for the exercise of the following rights, subject to public order and morality: –
i The right of the citizens to express freely their convictions and opinions. The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law.”
36. What is described in shorthand terms as “journalistic privilege” is a right of journalists in certain circumstances to refuse to disclose their sources. The precise nature of the “privilege” was explained by Hogan J. in Cornec v. Morrice[2012] IEHC 376, [2012] 1 I.R. 805 at para. 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 “their 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.””
It is in this sense that journalistic privilege should be understood in this judgment.
37. The policy considerations underpinning journalistic privilege as thus understood were addressed in the decision of the High Court in Mahon v. Keena[2007] IEHC 348 at para. 30:-
“Going hand in hand with this, is the critical importance of a free press as an essential organ in a democratic society. An essential feature of the operation of a free press is the availability of sources of information. Without sources of information journalists will be unable to keep society informed on matters which are or should be of public interest. Thus there is a very great public interest in the cultivation of and protection of journalistic sources of information as an essential feature of a free and effective press.”
38. In Mahon v. Keena, the plaintiffs were the members of a tribunal of inquiry which was established to investigate irregularities in the planning process. The first named defendant was a journalist employed by the Irish Times and the second named defendant was the editor of the newspaper. The first named defendant received an anonymous and unsolicited confidential communication which had been sent to a witness by the tribunal seeking information as part of its private investigations. The contents of the letter were published by the Irish Times in an article written by the first named defendant. The members of the tribunal wished to investigate the leak of the confidential information to the Irish Times and served summonses on the defendants ordering them to attend before it and to produce all documents which comprise the communication received by the first named defendant and which had led to the publication of the article, and also to answer all questions to which the tribunal might require answers in relation to the source of the information. The defendants deliberately destroyed the copy of the document and, while they appeared before the tribunal, refused to answer any questions which might provide assistance in identifying the source of the anonymous communications. The plaintiffs instituted proceedings seeking, inter alia, orders compelling the defendants to attend before the tribunal and to answer questions relating to the source of the leaked document. A divisional court of the High Court granted the plaintiffs the relief sought pursuant to s. 4 of the Tribunal of Inquiries (Evidence) (Amendment) Act 1997.
39. The defendants appealed to the Supreme Court and argued that extraordinarily strong countervailing circumstances were required before a journalist could be obliged to disclose his or her sources and the High Court had erred in failing to afford sufficient weight to the journalist’s privilege against disclosure. Fennelly J., giving the judgment of the court, said that the appeal turned entirely on the balance struck by the High Court between the power of the tribunal to investigate and the right of the defendants to refuse to disclose any information about their sources. He considered the European Convention on Human Rights Act 2003. He noted that the long title to the Act states that it was passed in order to give “further effect subject to the Constitution to certain provisions” of the Convention. At paras. 61-65 he held:
“[61] Section 2(1) of the Act of 2003 provides that:-
“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
[62] Section 3(1) provides:-
“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.”
[63] The definition of an “organ of the State” in s. 1 includes “a tribunal… which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised”. The tribunal undoubtedly comes within that definition.
[64] Section 4 provides:-
“Judicial notice shall be taken of the Convention provisions and of-
(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.”
[65] The combined effect of these provisions for the purposes of the present case is that the relevant sections of the tribunals of inquiry legislation must be interpreted in “a manner compatible with the State’s obligations under the Convention provisions”. For that purpose, the court must take judicial notice of the Convention provisions themselves and of the various documents mentioned in s. 4 of the Act of 2003. Foremost among those are the judgments of the European Court of Human Rights. The requirement that the court take judicial notice of the Convention and of the various documents referred to means that they can be relied upon by the court without special proof. The court must, in addition, as the concluding words of the provision make clear, “take due account” of the principles laid down in those judgments. This is not the same as saying that they constitute binding precedents.”
40. He then considered the provisions of Article 10 of the Convention, which are as follows:-
“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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
41. He observed that the judgments of the ECtHR emphasise not merely the fundamental right to freedom of expression but, in the case of the press, its indispensable contribution to the functioning of a democratic society. But, while the ECtHR also acknowledged that the right to freedom of expression is not unlimited, Fennelly J. observed at para. 72 that “nonetheless, the Court constantly emphasises the value of a free press as one of the essential foundations of a democratic society … generally, therefore, restrictions on freedom of expression must be justified by an “over riding requirement in the public interest”.”
42. From para. 79 onwards, Fennelly J. considered the decision of the ECtHR in Goodwin v. United Kingdom(1996) 22 EHRR 123. That case concerned commercial information about a company of a highly confidential and secret character. It was claimed that disclosure would threaten the business and livelihood of its employees. The information was communicated to the journalist in question by a person who, though known to the journalist, wished to remain anonymous. The company secured an interim injunction restraining publication, having been alerted to the disclosure of the information prior to its publication when the journalist contacted the company making enquiries based on the leaked information. The English Courts made orders requiring the journalist to disclose his source and he refused to comply. The House of Lords fined him UK£5,000 for contempt of court. Fennelly J. quoted from the judgment of the ECtHR at p.143:-
“Protection of journalistic sources is one of the basic conditions of 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.”
Fennelly J. endorsed and applied these principles without differentiating between the protections afforded to journalists under the Constitution and under Article 10 of the ECHR.
43. At para. 80, Fennelly J. noted the ECtHR laid emphasis on the need for any restriction on freedom of expression to be “convincingly established”. It said that the ‘“national margin of appreciation is circumscribed by the interest of a democratic society in ensuring and maintaining a free press.” Therefore, “limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court. ”
44. He held that the court must balance the competing right of journalists to protect their sources with the right of the members of the tribunal under s. 4 of the Act to investigate the disclosure of confidential information. He held that the High Court was correct to hold that journalists cannot adjudicate on the proper balance to be struck between the rights and interests concerned and that it is a matter for the courts alone to decide when a journalist is obliged to disclose his or her sources: “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.” (See para. 92)
45. In carrying out this balancing act, the Supreme Court was not concerned with whether the act of the journalists in destroying the documents in question was wrongful and deserving of opprobrium, but rather the narrower question of whether, in the circumstances where the documents no longer existed, there was a logical or causal link between that act and the order made. He held that the order “ now to be made” had to be justified “by the situation as it now exists.” For this reason, he reversed.
46. The Supreme Court held that the High Court had devalued the journalistic privilege so severely that the balance between the plaintiffs and the defendants was not properly struck; insufficient weight was accorded to the rights of the journalists. On the other hand, Fennelly J. found it very difficult to discern any sufficiently clear benefit to the tribunal from any of the answers to the questions they wished to pose to justify the making of the order. He therefore concluded that the plaintiffs had not met the test established in Goodwin and the appeal was allowed.
47. The decision of the Supreme Court in Mahon v. Keena establishes that an order compelling journalists to answer questions for the purpose of identifying their source could only be justified by an overriding requirement in the public interest or a pressing social need for the imposition of a restriction or encroachment upon the right to freedom of expression. Limitations on the confidentiality of journalistic sources called for the most careful scrutiny by the court 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 on the exercise of that freedom.
48. In Mahon v. Keena, the Supreme Court did not consider the case of In Re Kevin O’Kelly[1974] 108 ILTR 97, a decision of the Court of Criminal Appeal. Mr. O’Kelly was a journalist who interviewed an individual who said that he was the chief of staff of the IRA. He intended to broadcast the interview. The interviewee was charged with being a member of a proscribed organisation and Mr. O’Kelly was called as a witness for the prosecution at the trial to identify the interviewee. In the course of his evidence, he refused to answer a question put to him on the basis that to do so would be to breach a confidence and to identify a source. The court found him in contempt and imposed a sentence of three months’ imprisonment. He appealed against the severity of the sentence but not the conviction. Walsh J. delivered the judgment of the court. He considered the provisions of Article 40.6 of the Constitution and observed that it was obvious that not every news gathering relationship from the journalist’s point of view requires confidentiality. He then continued:-
“But even where it does journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. The fact that a communication was made under terms of expressed confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public have a right to every man’s evidence except for those persons protected by constitutional or other established and recognised privilege.”
49. This passage was relied upon by the Commissioner in his submissions, but it is important to note that it was strictly speaking obiter dicta, as the appeal in that case was against sentence only and, accordingly, the question as to whether Mr. O’Kelly was entitled to refuse to answer the questions put to him was not an issue before the Court of Criminal Appeal. Furthermore, as Hogan J. observed in Cornec, a journalist could only possibly assert a right to protect his sources from disclosure where the identity of the person in the broadcast was itself confidential and withheld from listeners or viewers. The open identification of the interviewee as the chief of staff was itself an intrinsic part of the entire broadcast and therefore the argument based on journalistic privilege was misplaced to begin with. I agree with his observation and I find that the observations of Walsh J. are of little assistance in resolving the issues presenting in this appeal.
50. The importance of the constitutional protection afforded to journalistic privilege was emphasised in Cornec at para. 43 where Hogan J. held that:
“… 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…-
if no such protection were available.”
51. He noted that the right was not absolute or inviolable and that where there were competing or conflicting interests and rights it was necessary to balance them. He characterised the public interest in ensuring that journalists can protect their sources as “very high” and that subject to appropriate exceptions, it is “regarded as a core value protected by Article 10 of the European Convention on Human Rights 1950”.
52. Applying the decision in JMcD v. PL[2009] IESC 81, [2010] 2 I.R. 199, he held that Article 10 of the Convention is not, as such, directly effective in Irish law but rather has effect only under the conditions actually specified in the 2003 Act. Additionally, following Carmody v. Minister for Justice[2009] IESC 71, [2010] 1 I.R. 635, he noted that the court is first required to examine the question presented for resolution under the terms of the Constitution before considering any rights under the Convention. However, he said at para. 49:
“… 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 of the European Convention on Human Rights does not actually seek to confer on the media a special or privileged position in terms of public debate or in criticism of public 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 convincing established.”
53. In weighing the various factors arising in the case before him he refused the relief sought on the basis that the case for compelling the journalist to give evidence had not been “convincingly established”.
54. Journalistic privilege was considered again by the High Court in the case of Ryanair Limited v. Channel 4 Television Corporation[2017] IEHC 651, [2018] 1 I.R. 734 (“Ryanair”). The plaintiff sued for defamation in respect of a programme broadcast by the first named defendant and produced by the second named defendant. The plaintiff obtained discovery from the defendants and sought inspection of documents over which privilege had been claimed. The defendants objected and asserted, inter alia, that they were entitled to rely on journalistic privilege as a basis for not revealing their sources for the programme. The court was called upon to weigh the balance between two constitutionally protected rights: the right of a journalist to protect his or her sources and the right of the plaintiff to vindicate its good name. The High Court identified the legal basis for the journalistic privilege as being Article 40.6.1.i of the Constitution and Article 10 of the ECHR. The court noted that the plaintiff was entitled to its good name under Article 40.3.2 of the Constitution which provides that:-
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
55. Meenan J. in the High Court noted that, unlike legal advice/litigation privilege, journalistic privilege is not absolute and that when carrying out the balancing exercise, the Supreme Court in Mahon v. Keena referred to the benefit, if any, that would accrue to the plaintiffs in that case were the court to direct the defendants to reveal their sources. He therefore concluded that in carrying out the balancing exercise the court will examine the necessity of the evidence to the case of the party seeking the disclosure of journalistic sources. He cited with approval the passage at para. 19 of the judgment of the ECtHR in Goodwin as follows:-
“It will not be sufficient, per se, for a party seeking disclosure of a source protected by Section 10 to show merely that he will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases his claim in order to establish the necessity of disclosure. The judge’s task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such a prepondering importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached.”
56. At para. 65, Meenan J. identified three relevant principles as follows:-
“(i) The protection afforded by journalistic privilege protects not only the identity of source(s) but, where necessary, the information provided by such source(s);
(ii) Unlike legal advice/litigation privilege journalistic privilege is not absolute and may be displaced following a balancing exercise carried out by the court between, on the one hand, the right to freedom of expression and, on the other hand, a legal right such as a person’s right to a good name;
(iii) A heavy burden rests on the person who seeks disclosure of journalistic source(s). The court must be satisfied that such disclosure is justified by an overriding requirement in the public interest or is essential for the exercise of a legal right.”
57. At para. 69, Meenan J. held that the scope of journalistic privilege is extensive i.e. it protects not only the identity of sources but also information that may lead to the identification of source. Applying these principles, he refused to permit the plaintiff to inspect the documents.
58. In Mahon v. Keena, the Supreme Court applied the principles in Goodwin to uphold the journalists’ right to protect their sources, while in Cornec the High Court held that there was no real difference in the level of protection afforded by the Constitution and that provided for by Article 10 of the ECHR. Thus, in addition to these Irish authorities on the scope of journalistic privilege, it is necessary to have regard to the terms of the 2003 Act and the jurisprudence from the ECtHR in respect of the protection of journalistic sources in order to address properly the issues raised in this appeal.
The European Convention on Human Rights Act 2003
59. As has already been pointed out, the long title to the Act states that it is to enable further effect to be given “subject to the Constitution” to certain provisions of the Convention. Section 2(1) provides:-
“In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
60. Thus, this court, subject to the provisions of the Constitution, is required to interpret and apply the provisions of s. 10 of the 1997 Act insofar as is possible in a manner which is compatible with the state’s obligations under the Convention, subject always to the rules of law relating to such interpretation.
61. Section 3(1) provides:-
“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.”
62. “Functions” is defined in s. 1 as including powers and duties and references to performance of those functions include references to the exercise of the powers and the performance of the duties.
63. “Organ of the State” includes “ a tribunal or any other body (other than…a court) which is established by law or through which any of the… executive or judicial powers of the state are exercised. ”
64. Section 4 requires that judicial notice be taken of the Convention provisions and, inter alia, the judgments of the ECtHR, and provides that “ a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those.judgments.” Section 5 concerns an application for a declaration of incompatibility, but no such relief was sought by the applicants in these proceedings.
The European Convention on Human Rights
65. I reproduce Article 10 again here for convenience:-
“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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
66. Goodwin v. United Kingdom concerned the application of Article 10 to a journalist who was the subject of a disclosure order requiring him to reveal the identity of his source. He refused to obey the order and he was fined £5,000. The ECtHR addressed the requirement that restrictions on the exercise of freedoms must be “prescribed by law”. At para. 31 it held:-
“The relevant national law must be formulated with sufficient precision to enable the person concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”
67. Having accepted that the impugned measure pursued a legitimate aim, Simons J. then considered whether the interference was “necessary in a democratic society”. He noted that freedom of expression constitutes “ the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.” He said that protection of journalistic sources is one of the basic conditions for press freedom. The court then set out the passage cited by Meenan J. in Ryanair. The court concluded in para. 90 with the passage previously cited at para. 22 above.
68. The necessity for any restriction on freedom of expression must be convincingly established. It is for the national authorities to assess whether there is a “pressing social need” for the restriction. The margin of appreciation in making that assessment is circumscribed by the interests of democratic society in ensuring and maintaining a free press. The restriction must be proportionate to the legitimate aims pursued: “ In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court. ”
69. The court held that there was not a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve the aim. This was because an ex parte interim injunction had already been granted to the company restraining the applicant and the publishers from publishing the relevant information and the injunction had been notified to all national newspapers and relevant journalists. Therefore, the purpose of the disclosure order was, to a very large extent, the same as that which had already been achieved by the injunction. For this reason, the restriction the disclosure order entailed on the journalist’s exercise of his freedom of expression was not necessary in a democratic society within the meaning of Article 10(2) for the protection of the company’s rights.
70. In Nordisk Film & TV AS v. Denmark (App. No. 40485/02) the applicant company produced a programme investigating paedophilia in Denmark which was to be broadcast on national television. A journalist went undercover and posed as a member of an association named “ The Paedophile Association ” and he recorded certain footage. Following the release of some of that footage, the Copenhagen police investigated an individual in relation to alleged breaches of the criminal law. The police sought access to portions of the recordings which were not included in the final film. The company and the journalist were directed by a court to handover a certain portion of the recordings and notes. The company asserted these were protected by journalistic privilege and it challenged the order. At p. 10 the ECtHR held:-
“The protection of journalistic sources is one of the corner stones of freedom of the press. 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 publicwatchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Accordingly, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court and an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”
71. The court noted that the Danish court had balanced the various conflicting interests and the order made was limited to a part of the applicant company’s own research material. The order “concerned the handover of a limited part of the unedited footage as opposed to more drastic measures such as for example a search of the journalist JB’s home and workplace or the applicant company’s registered office ” (emphasis added) and was in the circumstances not disproportionate to the legitimate aim pursued. It therefore declared the application to be inadmissible.
72. Perhaps the case which is most relevant to the issues arising in this appeal is Sanoma Uitgevers B.V. v. The Netherlands (App. No. 38224/03). The organisers of an illegal street race invited journalists to attend. They took photographs which identified the participating cars and persons at the race. The photographs were stored on a CD-ROM which was kept in the editorial office of a different magazine published by the same company. The police were investigating unrelated serious crime concerning ram raids and they believed that the photographs taken of the illegal street race might assist them in their investigation. The police asked the company to hand over the photographs and the company refused, asserting its journalistic rights under Dutch law. The police then obtained a summons ordering the company to surrender the photographs and the editor of the company refused to do so. The police threatened to detain the editor over the weekend and to seal and search the whole of the company’s premises if needs be for the entire weekend and beyond and to remove all of the company’s computers. The police arrested the editor for a short period. The company’s lawyer made representations on its behalf, both to the public prosecutors and to the investigating judge, despite the fact he had no standing under the relevant procedure. Despite these protests and representations, the police insisted in obtaining the photographs and ultimately the company surrendered the CD-ROM under protest.
73. The company complained that it had been compelled to disclose information to the police that would reveal its journalistic sources in violation of its rights under Article 10 of the Convention. At paras. 50 and 51, the ECtHR restated the importance of the right of journalists to protect their sources in the context of the essential foundations of a democratic society, describing it as “ a cornerstone of freedom of the press”. It reaffirmed the fact that interference with the protection of journalistic sources must be subject to “special scrutiny” and is incompatible with Article 10 of the Convention “unless it is justified by an overriding requirement in the public interest.” The court held that the fact that the order concerned was not intended to identify the sources themselves in connection with their participation in the illegal street race was not crucial. Likewise, the extent to which the act of compulsion resulted in the actual disclosure or prosecution of journalistic sources is irrelevant for the purposes of determining whether there had been an interference with the right of journalists to protect them. The court referred to its decision in Roemen and Schmit v. Luxembourg where, despite the fact that the information sought was not obtained as a result of the execution of the order for search and seizure in the journalist’s workplace, the order was considered “a more drastic measure than an order to divulge the source’s identify … because investigators who raid a journalist workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. It thus considers that the searches of the first applicant’s home and work place undermined the protection of sources to an even greater extent than the measures in issue in Goodwin. ” (emphasis added).
74. In Sanoma, the threat to search the company’s premises was not carried out as the editor handed over the CD-ROM under protest. The court considered that:-
“72. … an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources…suffices for the Court to find that this order constitutes, in itself, an interference with the applicant company’s freedom to receive and impart information under Article 10 (1) ”
75. The ECtHR then considered whether the interference was “prescribed by law”. The minimum requirements of such law which suffices to safeguard these rights is set out in paras. 88-92 of the judgment:-
“88. Given the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification any interference with the right to protection of such sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake.
89. The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources (see, mutatis mutandis, Voskuil v. the Netherlands, cited above, § 71).
90. First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources “the full picture should be before the court ” was highlighted in one of the earliest cases of this nature to be considered by the Convention bodies (British Broadcasting Corporation, quoted above (see paragraph 54 above)). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not.
91. The Court is well aware that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent orders or requests. In such situations an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether in the particular circumstances of the case the public interest invoked by the investigating or prosecuting authorities outweighs the general public interest of source protection. It is clear, in the Court’s view, that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality.
92. Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist’s sources (see, for example, Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, cited above). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk (see, mutatis mutandis, Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 62-66, ECHR 2007-XI).” (emphasis added)
76. It follows from this analysis that any interference with the right to protect journalistic sources and of information that could lead to their identification must be attended with legal procedural safeguards commensurate with the importance of the principle at stake. The first of these is the “guarantee” of review by a judge or other independent and impartial decision-making body separate from the executive and other interested parties. The judge or independent decision-maker must have power to determine prior to the handing over of any material whether there is a requirement in the public interest which overrides the principle of protection of journalistic sources. The court or other body must have power to prevent “unnecessary access” to information capable of disclosing the sources identity if it does not. An independent review that only takes place after the handing over of material “capable of revealing such sources” undermines the very essence of the right to confidentiality. The review by a judge or other independent and impartial body is preventative in nature and the judge must be in a position to weigh the potential risk and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. It is important to stress that the court did not require that the review be inter partes.
77. The court held that it should be open to the judge or other authority either to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed whether or not they are specifically named in the withheld material.
78. At para. 99, the ECtHR found that where there is no independent review prior to any disclosure of materials, the failings were not cured by the review ex post factum offered by the Regional Court in the Netherlands as this was “powerless” to prevent the authorities from examining the photographs stored on the CD-ROM the moment it came into their possession. The court concluded that the quality of law was deficient in that: –
“There was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interests of the criminal investigation overrode the public interest in the protection of journalistic sources. There has accordingly been a violation of Article 10 of the Convention in that the interference complained of was not “prescribed by law”.”
79. It is important to observe that the court acknowledged that in situations of urgency there should be a procedure to identify and isolate, prior to the access and use of obtained materials by the authorities, any information which could lead to the identification of sources from information which carries no such risk. This does not arise on the facts in this case, but it is an important recognition of the practicalities which may present themselves from time to time in certain investigations, particularly in relation to criminal activity, while seeking to uphold the rights of journalists wishing to protect the identity of their sources to have the issue of disclosure determined by a judge or other independent and impartial decision-maker prior to the irremediable loss of the confidentiality attaching to their sources which could otherwise occur.
80. The final decision of the ECtHR to which the court was referred was Stichting Ostade Blade v. Netherlands (App. No. 8406/06). In 1995 and 1996, there were three bomb attacks in Arnhem. A group called Earth Liberation Front (ELF) claimed responsibility for the third attack. Stichting published a bi-weekly magazine. The magazine editors issued a press release notifying that its forthcoming edition would include a letter from ELF claiming responsibility for the third bomb attack. The Arnhem Regional Court issued a search warrant for the magazine’s premises and the premises were searched under the supervision of an investigating judge in the context of the criminal investigation into the three bomb attacks. The issue raised in the proceedings was whether ELF could be regarded as a journalistic source entitled to source protection under Article 10 of the Convention. The government argued that a person claiming responsibility for a bomb attack was not entitled to the same protection as a source supplying information on a matter of public interest.
81. The ECtHR found that the order to the company to hand over the letter and the search of the premises when the order was not obeyed constituted an interference with the company’s right to “receive and impart information” as set out in Article 10(1) of the Convention. The court then considered the nature of the interference and observed that it does not follow that every individual who is used by a journalist for information is a “source” in the sense of the case law in Goodwin, Roemen and Schmit and Sanoma and other cases. However, even though the protection of a journalistic source properly so called was not in issue, an order directed to a journalist to hand over original materials may still have a chilling effect on the exercise of journalistic freedom of expression. The court therefore held that the journalist was entitled to protection even if the source was not so entitled, though the weight to be afforded to the journalist’s protection was diminished in that “the degree of protection under Article 10 …does not necessarily reach the same level as that afforded to journalists when it comes to their right to keep their “sources” confidential.”
82. The court held that the magazine’s informant was not entitled to the same protection as the “sources” in cases like Goodwin, Roemen and Schmit and Sanoma because the magazine’s informant was not motivated by the desire to provide information which the public were entitled to know and, on the contrary, it was claiming responsibility for crimes it had committed.
83. In considering whether the interference was “necessary in a democratic society” the court held at para. 70:-
“[The court] cannot but have regard to the inherent dangerousness of the crimes committed, which in its view constitutes sufficient justification for the investigative measures here in issue.”
84. And accordingly, the court declared that the application was inadmissible.
Fine Point Films and Birney
85. A recent decision of the Court of Appeal in Northern Ireland in the case of Fine Point Films and Trevor Birney[2020] NICA 35 is also relevant to the issues engaged in this appeal. It concerned the circumstances in which the police can use an ex parte warrant procedure provided for in the Police and Criminal Evidence (Northern Ireland) Order 1989 (“PACE”). The Police Ombudsman of Northern Ireland (“PONI”) was conducting an investigation into a complaint in respect of the conduct of the police investigation into murders which occurred at Loughinisland in June 1994. The applicants, a company engaged in producing documentaries and two journalists, produced a documentary film about the murders and the police investigation. They obtained copies of two confidential documents from the PONI inquiry and included copies of extracts from the documents in the film. The Director of Current Investigations for the PONI was concerned that the documentary disclosed material relative to the investigation which had been acquired either by theft or unauthorised disclosure. The Durham Constabulary was conducting a criminal investigation into the alleged theft or unauthorised disclosure of the documents and they obtained an ex parte warrant authorising the search of the homes of the two journalists and the business premises of each of the applicants. The applicants sought judicial review to quash the warrant.
86. In Northern Ireland, journalistic sources benefit from statutory protection pursuant to s. 10 of the Contempt of Court Act 1981. Part III of PACE prescribes a detailed regime governing powers of entering, search and seizure of materials for the purposes of a criminal investigation. Provision is made for access to journalistic material as defined in Article 15. Excluded material is defined in Article 13 as including journalistic material which a person holds in confidence and which consists of documents or records other than documents. The application for the warrant in this instance included an application to search and seize excluded material. PACE provides for two procedures, one of which is ex parte and one of which is inter partes. The Durham Constabulary felt that the inter partes procedure was inappropriate in the circumstances and so applied ex parte for the search warrant.
87. The Court of Appeal was highly critical of the procedure adopted to procure the warrant at issue in the appeal. The Lord Chief Justice emphasised the breadth of the warrant. It authorised the seizure of journalistic material consisting of all broadcast material together with unedited and un-broadcast footage relating to the documentary film, the two documents referred to in the film, all discussions, interviews, communications and correspondence held on any media storage device, digital recording or other form of mechanical or electronic data, any material supporting a person’s involvement in obtaining, possessing or disseminating any such document and any computer, electronic device and/or digital media device including mobile phone in which it is believed such material may be stored.
88. The Court of Appeal said it was a fundamental principle that any ex parte hearing is a fair hearing and that the court should impose a heavy onus on those seeking to pursue ex parte proceedings to take all reasonable steps to ensure that the proceedings are fair. There was a transcript of the ex parte application and the court set out exchanges between the judge, Detective Sergeant Henderson, who gave evidence, and counsel representing the respondents who moved the application. The judge was informed that the police sought the “actual stolen document” and counsel emphasised the sensitivity of the documents and the fact that they could threaten the life or safety of an individual by identifying them. Counsel explained they did not consider the inter partes procedure as being appropriate because on a previous occasion one of the journalists had asserted journalistic privilege. He said that it was the view of the police that if they followed that procedure “that essential opportunities within the investigation will be lost because once they get that notice [to preserve the documents pending the application] police do not know what will be done with the information or what steps may be taken to frustrate securing that information.” (para 37)
89. Morgan LCJ stated that part of the obligation to take all reasonable steps to ensure that the ex parte hearing is fair is “to put on a defence hat and ask, what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge. The applicant must, of course, then proceed to tell the judge what those matters are.” The court considered the rights of the applicants to protect their sources. The Lord Chief Justice cited extracts from the decisions of the ECtHR in Goodwin and in Roemen and Schmit discussed above, and at para. 43 of the judgment the court applied the governing jurisprudence set out in those authorities dealing with the right to freedom of expression of journalists under Article 10 of the ECHR and the associated protection for journalistic sources and press freedom in a democratic society. Morgan LCJ then stated:-
“Although there was some acknowledgement of the importance of journalists in a democratic society in the course of the hearing the judge was not advised that Article 10 Convention rights were engaged, nor was he provided with any of the relevant jurisprudence nor was it made clear to him that a warrant such as this sought could only be justified by an overriding requirement in the public interest. This issue was absolutely fundamental to whether or not a warrant should be issued and the failure to address it means that we can have no confidence that the trial judge applied the right test.”
90. The court noted that counsel drew the judge’s attention to the fact that there was an inter partes process for the obtaining of such information under para. 4 of Schedule 1 of PACE but that he did not discuss its terms and conditions in any detail.
91. The Court of Appeal was highly critical of the reasons advanced by the respondents for not availing of the alternative inter partes statutory procedure. The court dismissed the respondents’ argument that the notice procedure was not practicable or would seriously prejudice their case because any relevant material “would be” disposed of by the journalists after serving of the notice on them. The Lord Chief Justice noted at para. 47:-
“This action [asserting journalistic privilege] on the part of [the journalist] was presented to the judge [hearing the ex parte application] in support of the proposition that a journalist adhering to the Code was likely to commit contempt of court by destroying relevant material if notice of an application was served upon him. We reject that submission. If correct it would completely undermine the important role that journalistic sources play in our democratic society.”
92. Morgan LCJ was equally disparaging of the manner in which the applicant for the warrant emphasised the importance of Article 2 of the Convention to the judge. He said the fact that the argument could only relate to the two documents and not to all the other material within the scope of the warrant “should have been made absolutely clear to the trial judge and the failure to do so is inexplicable”. Likewise, he held that there was “ not a shred of evidence” to suggest that the disclosure represented a danger to the PONI and therefore it was difficult to see any basis upon which the disclosure of information came within the terms of the relevant provisions of PACE.
93. At para. 55 of his judgment he concluded:-
“…we conclude that the conduct of this hearing fell woefully short of the standard required to ensure that the hearing was fair. That was sufficient for our decision to quash the warrant. We wish to make it clear, however, that on the basis of the material that has been provided to us we see no overriding requirement in the public interest which could have justified an interference with the protection of journalistic sources in this case.”
94. The judgment presents a useful examination of the obligations on a party applying ex parte for a warrant where the issue of journalistic privilege is engaged. The judgment indicates the type of material which should be placed before the judge by the applicant where the issue of the protection of journalistic sources arises. First, the judge should be informed that Article 10 rights were or potentially were engaged; second, the judge should be provided with the relevant jurisprudence and third, the judge should be informed that the warrant could only be justified by an overriding requirement in the public interest. These obligations derive from the provisions of the ECHR and the judgments of the ECtHR, and are in no way dependent upon the existence of a particular statutory regime.
95. The Court of Appeal concluded that the material before it was not sufficient to satisfy the threshold established in Goodwin that the overriding requirement in the public interest justified the interference with the protection of journalistic sources.
96. While it must of course be accepted that the decision was given in the context of a comprehensive statutory code (including the facility for inter partes applications) which has no analogue in this jurisdiction, insofar as the observations and conclusions are based upon the nature of an ex parte application for a warrant or Article 10 of the Convention and the jurisprudence in relation to the protection of journalistic sources, the differences are not material to the issues arising in this appeal. Noting that the decision prescribes a very detailed set of requirements for the authorities when seeking an order of the kind in issue in this case – but without deciding whether all of these requirements are imposed as a matter of Irish law or are incidents of the specific statutory scheme under consideration – the importance of the decision for the purposes of this case lies in the requirement that before an ex parte warrant of the kind in issue in these proceedings may issue, the authorities must at the very least ensure that the judge is aware of the potential engagement of journalistic privilege and that he or she has directed his or her mind to the balancing exercise envisaged by the ECtHR case law. These particular features of an application for a warrant in respect of material potentially captured by journalistic privilege arise from a combination of the very particular public interest engaged where the authorities seek a warrant which may enable them access such material and the legal novelty and complexity presented by that prospect. To be clear, this judgment should not be taken as accepting – or for that matter rejecting – the view suggested by the Northern Ireland Court of Appeal that a concern that persons claiming journalistic privilege might destroy materials of evidential value to a police investigation if aware of a proposed application for a warrant was a proposition worthy of censure: whether that is so in a given case will depend upon all the facts.
Principles applicable to the protection from disclosure of journalists’ sources
97. The following principles relevant to this appeal emerge from provisions of the Constitution, Article 10 of the ECHR, the 2003 Act and the case law discussed above:
(1) When an issue concerning the protection of journalists’ sources arises, it must first be considered under the provisions of the Constitution and in particular Article 40.6.1.i.
(2) The protection afforded to journalistic sources under Article 10 of the ECHR is substantively the same as that provided under the Constitution (Cornec and Mahon v. Keena).
(3) The protection of journalistic sources guaranteed by Article 40.6.1.i of the Constitution and Article 10 of the Convention is to be attributed a high value.
(4) Where a court is required to interpret or apply any statutory provisions or rule of law, the court shall so far as possible do so in a manner compatible with the State’s obligations under the provisions of the Convention (s. 2 of the 2003 Act).
(5) For that purpose, a court must take a judicial notice of the provisions of the Convention and judgments of the ECtHR and, when interpreting and applying the Convention provisions, take due account of the principles laid down in, inter alia, those judgments (s. 4 of the 2003 Act).
(6) The constitutional protection for journalistic privilege would be meaningless if the courts could not, or would not, protect the general right of journalists to protect their sources (Cornec).
(7) The right to protect journalistic sources is not absolute.
(8) The approach of the court whether under the Constitution or the Convention is the same: has the case for the restriction on, or overriding of, journalistic privilege been “convincingly established”?
(9) Clearly, neither the party seeking to interfere with the right nor the journalist asserting it may decide the issue themselves. It is necessary for a judge to balance the right of a journalist to protect their sources with the rights asserted by the party seeking to interfere with that right (Mahon v. Keena).
(10) A judge must subject any application which will interfere with the protection of journalistic sources with “special” or “careful scrutiny”.
(11) The onus is on the party who seeks to interfere with the right to “convincingly establish” why this should occur.
(12) The court may only order a journalist to reveal their sources if it is justified by an overriding requirement in the public interest or a pressing social need (Mahon v. Keena).
(13) The interference must be authorised by a procedure “prescribed by law”.
(14) The interference must be for the furtherance of a legitimate interest.
(15) The interference must be necessary in a democratic society (Mahon v. Keena and Ryanair v. Channel 4 Television).
(16) Any interference with the journalistic privilege should be proportionate.
(17) An order authorising a search of a journalist’s home and/or premises is a more drastic measure than an order to divulge the identity of a journalist’s source.
(18) Not every person who provides information to a journalist is a “source” who is entitled to protection under the Constitution or the Convention and, in particular, the privilege may not be asserted in respect of a communication from a person who is themselves an actor in criminal activity whose contact with the journalist is in furtherance of and/or for the purposes of publicising their criminal activity (Kevin O’Kelly and Stichting Ostade Blade)
(19) An order for the compulsory surrender of journalistic material which contains information capable of identifying journalistic sources constitutes, in itself, an interference with the journalist’s/publisher’s freedom to receive and impart information, even if the order is not acted upon and no source is identified.
(20) This is so even if the source is not a source which attracts Article 10 journalistic privilege. In such circumstances, the journalist still enjoys Article 10 protection but to a lesser extent than when the source also is entitled to protection.
(21) The review by the judge or other independent and impartial body under Article 10 may be ex parte. The question of whether and if so when it is permissible, having regard to the provisions of the Constitution, to issue a warrant on foot of an ex parte application in circumstances in which journalistic privilege is or may be engaged has never been decided. However, it is quite clear that – at the very least – there will be circumstances in which the exigencies of an ongoing criminal investigation may require that an ex parte application be possible. For reasons I explain later, it is not necessary to decide in this case when those circumstances will arise.
(22) Where an application is made ex parte the full picture must be before the court to enable the court to determine whether a requirement in the public interest overriding the principle of protection of public sources exist.
(23) The court must be able to prevent unnecessary access to information capable of disclosing the identities of sources.
(24) The judge should be able to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the material.
(25) Save in the case of urgency, the review and the balancing of rights must take place prior to the seizure and access of the material.
(26) An independent review that only takes place after the material which is capable of revealing sources has been handed over is not compatible with the right to confidentiality.
(27) An ex post facto review cannot retrospectively authorise a search which is invalid for breach of these requirements.
(28) In cases of urgency, it is permissible to seize – but not access – the material prior to the review by the court or other independent and impartial body.
The Criminal Justice (Miscellaneous Provisions) Act 1997 (as amended)
98. Section 10 of the Act of 1997 was substituted by the Criminal Act 2006, s. 6(1)(a). The section provides:-
“10.(1) If a judge of the District Court is satisfied by information on oath of a member not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.
(2) A search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied by such other members or persons or both as the member thinks necessary—
(a) to enter, at any time or times within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found at that place, and
(c) to seize anything found at that place, or anything found in the possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of an arrestable offence.
…
(4) A person who obstructs or attempts to obstruct a member acting under the authority of a search warrant under this section, who fails to comply with a requirement under subsection (3)( a) or who gives a false or misleading name or address to a member shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.”
99. Applications under s. 10 are made ex parte and in chambers to a District Court judge. The application is made on foot of an information on oath by a member of An Garda Síochána not below the rank of sergeant. The District Court judge must be satisfied that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in the place in respect of which the warrant is sought. If these requirements of subs. (1) are met, then the judge “may” issue a warrant for the search of that place and any persons found at that place. The subsection confers a discretion on the judge.
100. The proper legal characterisation the decision of a District Court judge when issuing a warrant has been considered in numerous cases. While different language is used in these decisions, there are essentially four points:
(i) The issuing of a search warrant is a sui generis function.
(ii) It is not the administration of justice.
(iii) It is instead an administrative or, as it has also been described “ministerial” act.
(iv) The power must, nonetheless, be exercised “judicially”; indeed, sometimes it has been referred to as a “judicial function”, albeit of a particular kind. Statements of this kind can confuse, as they might suggest an affinity with an administration of justice – which the issuing of a warrant is most definitely not.
101. The Supreme Court addressed the nature of the power in Damache v. DPP[2012] IESC 11; [2012] 2 I.R. 266. There, the appellant challenged the constitutionality of s. 29(1) of the Offences Against the State Act 1939 (as amended) which permitted an application for a search warrant to be made to (and such a warrant to be granted by) a member of An Garda Síochána not below the rank of superintendent who was personally involved in the investigation. The Chief Justice reiterated that the issuing of a search warrant is an administrative act and not the administration of justice. She said:-
“17. The issuing of a search warrant is an administrative act, but it must be exercised judicially. It was accepted that the full panoply of rights do not apply to the issuing of search warrants. Obviously, the law does not require that a suspect be put on notice of applications to apply for a search warrant..
…
34. The issuing of a search warrant is an administrative act, it is not the administration of justice. Thus a search warrant is not required to be issued by a judge. However, it is an action which must be exercised judicially. As Keane J. stated in Simple Imports Ltd. v. Revenue Commissioners[2000] 2 I.R. 243 at p. 251:-
‘The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis in issuing the warrant. He or she would clearly be entitled to rely on material, such as hearsay, which would not be admissible in legal proceedings.
102. At paras. 47 and 51, she set out the procedural requirements to be followed in obtaining a search warrant:-
“47. The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example when there is an urgent matter.
…
51. The court applies the following principles. For the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of the search.”
103. The issue was also addressed by Fennelly J. sitting in the Court of Criminal Appeal in The People (DPP) v. Tallant[2003] 4 I.R. 343. The court was considering a challenge to a warrant based on the quality of the evidence upon which a District Court judge may act. Fennelly J. said that a reviewing court must look at the totality of the evidence given in the District Court at the time of the application for a warrant. He then said at para. 8:-
“This is not an inter partes matter: it is not a criminal prosecution in itself. It is an administrative procedure in the first instance insofar as the Garda Síochána set it in motion. It is a judicial procedure of a very particular kind, namely, one where the Garda Síochána has to satisfy the District Court that there is sufficient reason to search the premises of the person named in the warrant…the constitutional protection of the integrity of the home of the individual immediately comes into play and the court must be vigilant to ensure that there is not any undue or improper invasion of that constitutional right to the sacrosanct character of the home of the person who is an individual citizen. On the other hand, of course, the gardai (sic) are engaged in carrying out their public duty to investigate crime and a proper balance has to be struck between these two objectives; so, in collecting evidence all proper respect has to be accorded to the protection of the constitutional right of every individual citizen in respect of his home and, therefore, any invasion of that must take place only on the basis that proper judicial procedures have been carried out.”
104. In The People (DPP) v. FR[2019] IECA 212Edwards J. approved this passage from Tallant and stated that it “correctly identified that the process of applying for a search warrant is in fact a two stage one “involving in stage one the application by the gardaí for a warrant, which may be characterised as an administrative function (or executive function, as it was labelled in the earlier case) whereas the actual issuing of the warrant, which occurs in stage two, is a judicial function but one of “a very particular kind”.”
105. The issue in F.R. turned upon an application for the search warrant based in part on hearsay evidence and whether the failure to make this clear to the District Court judge impacted the validity of the warrant. It was argued that the warrant was defective because the applicant did not disclose to the judge that the information or intelligence referred to in the sworn information was not personally known to her but, rather, was hearsay. The court held that the application for a warrant is in effect a sui generis procedure and that the rule against hearsay had no application to applications for search warrants. What was important was not whether the intelligence being relied upon was hearsay but rather whether it was considered to be reliable. In para. 45 the court held:-
“45. … Moreover, it would not have been within the District Court judge’s remit to treat the application for a warrant as though it were a trial, and in the absence of some red flag suggesting a serious problem with reliability to seek to rigorously stress test the actual reliability of that which was asserted in the information in writing. It is sufficient in such a case if the District Court judge satisfies himself/herself that the informant believes the intelligence relied upon to be reliable, in circumstances where it is not manifestly unreasonable that the informant should so believe. As occurred in this case, where intelligence is being relied upon in whole or in part, a simple question to the informant seeking confirmation that he/she believes what is stated in the information to be correct, should suffice in most cases. There will, of course, and from time to time, be cases in which, because of their particular or unusual circumstances, some greater level of inquiry would be justified. …”
106. Having concluded that the crucial point is that the District Court judge satisfies himself/herself that the informant believes the intelligence relied upon to be reliable rather than whether it is hearsay or not, the court concluded that there was no breach of a duty of candour. The essence of the case is that the omission complained of was irrelevant and accordingly the failure to bring irrelevant material to the attention of a District Court judge could not invalidate the warrant.
107. Furthermore, the Court expressly noted that there will be cases in which, depending on the circumstances, a greater level of enquiry would be justified. The court referred to a red flag alerting the district court of the need to be extra vigilant in his or her scrutiny of the application. Application for warrants that may engage journalistic privilege are one such situation.
Discussion
108. Section 10 of the 1997 Act does not enable the District Court judge to conduct an inter partes hearing. In the High Court the parties agreed this was so and I see no basis upon which the statute could be construed to permit, never mind require, such procedure. The decision of the District Court judge on an application for a search warrant is binary: whether or not to grant the warrant. The judge should refuse to grant the warrant if the judge is not satisfied that there are reasonable grounds within the meaning of the section. But the judge has a further decision to make; whether in the circumstances to exercise their discretion to issue the warrant. In reaching his or her decision the judge is required to act judicially.
109. This means that in cases where it arises the judge should take account of the constitutionally protected right of journalists to protect the identity of their sources from disclosure. Those rights must be weighed in the balance. The fact that s.10(1) makes no reference to consideration of inter alia journalistic privilege does not preclude this.
110. The right not to disclose journalistic sources is a constitutionally guaranteed right, albeit one which is not absolute. It is also a right guaranteed by Article 10 of ECHR. Courts are required to interpret statutes in a manner which gives effect both to constitutionally guaranteed rights and to rights derived from the Convention and decisions of ECtHR. Interference with a journalist’s right to protect their sources may only be justified by an overriding requirement in the public interest or a pressing social need. This must be “convincingly established” by the applicant for the warrant. The court must approach the application for a search warrant with “special” and “close scrutiny”. Only if these prior requirements have been satisfied – in addition to the requirements in s.10 – may the court issue the warrant.
111. As I have previously explained, there will be circumstances in which this exercise may be conducted on foot of an ex parte application. No authority was open to the court which suggested otherwise, and the decisions of ECtHR are consistent only with this being possible. Where an ex parte application is made and is appropriate, the applicant for the warrant must place before the judge the information necessary to enable the judge to perform his or her task properly under the section, the Constitution and the Convention.
112. This imposes a full disclosure obligation on an applicant for a search warrant. The obligation is to place all information before the District Court judge which is relevant to their decision. This may be factual, but it may also be legal.
113. Generally, I would agree with the decision of the Northern Ireland Court of Appeal in Fine Point Films in this regard, although it must be stressed that the exercise of seeking an ex parte warrant should not be converted into a full blown trial. It is sufficient if the judge is advised that the warrant may result in the seizure of material captured by journalistic privilege, if the judge is advised of his or her obligation to take account of this in issuing the warrant, and if a legally sufficient basis for overriding that privilege is identified and explained. Further details may need to be provided to the District Court judge, depending on the circumstances, but this is the minimum where an applicant seeks a search warrant of a journalist’s home or place of work based on his or her actions as a journalist.
114. Where a search warrant is sought in respect of a suspect or person of interest in a criminal investigation who coincidentally is a journalist, the balance to be struck between the public interest in the investigation of crime and the protection of journalistic sources still requires to be struck, not least because the rights of the journalist’s sources to protection may be impacted by a search warrant. However, the weight to be afforded to the journalist’s right to protect his or her sources in the circumstances will be far less and may not even arise at all when they personally are directly of interest in an investigation which is unrelated to their role as a journalist and thus in the freedom of the press in a democratic society.
115. In this regard it is worth recalling that in Stichting Ostade the investigating judge conducted no balancing exercise before directing the seizure of the letter the subject of the proceedings. The ECtHR simply determined that the document was not protected by the asserted privilege as the “source” was in fact the perpetrator of an offence seeking publicity through the magazine. The failure to undertake the balancing exercise was not adverted to and was not a valid basis for challenging the validity of the order where the “source” was not protected by Article 10.
116. In my opinion, it is not sufficient for a District Court judge to glean from the sworn information that the warrant is not only to search the home and workplace of a citizen – which engages rights which arise in respect of many warrants – but also the separate rights of a journalist to protect their sources, which rights are guaranteed both under the Constitution and the ECHR. This is a complex, evolving area of law where it is appropriate to require the applicant for a warrant to search a journalist’s home or office in an ex parte procedure to assist the District Court judge by expressly adverting to the fact that the issue of the protection of journalistic sources is or may be engaged, the requirement to balance protection of this constitutionally guaranteed right with the exigencies of the garda investigation and the threshold test which is required to be satisfied if that right is to interfered with.
117. The fact that the procedure is ex parte does not absolve the District Court judge from the obligation to satisfy himself or herself that the applicant for the search warrant has convincingly established that there is an overriding requirement in the public interest or a pressing social need which justifies the interference with the journalist’s right to protect the identity of their sources.
118. The Supreme Court in Mahon v. Keena established that this is the test to be applied when assessing whether a journalist’s asserted privilege is to be overridden. The decision of ECtHR in Sanoma is crystal clear: the balancing of the requirement in the public interest and the right of a journalist to protect their sources must, save in cases of urgency, occur prior to the issuing of a warrant. An independent review that only takes place after material which is capable of revealing sources has been handed over is not compatible with the right to confidentiality. An ex post facto review where no such prior balancing has been undertaken by a judge or independent and impartial body does not satisfy the requirements of Article 10 and accordingly of Article 40.6.1.i.
119. In Cornec it was pointed out that the constitutional right of journalists to protect their sources would be meaningless if the courts would not or could not protect the general right of journalists to protect their sources. A search warrant of a journalist’s home or place of business permits the applicant to access all of the journalist’s records and information in either location. Frequently such information may be on devices which are password protected and therefore not immediately accessible. That is not the point. There is absolutely no guarantee that a search warrant will not entail disclosure either of details of sources or of material which contains information capable of ident