Silence Rights & Limits

Heaney and McGuiness v Ireland and the Attorney General

[1994] 2 ILRM 420 Costello J
Introduction
On 24 October 1990 an explosion occurred at the British army checkpoint at Coshquin, Londonderry, in which five British soldiers and one civilian lost their lives. It was caused by a proxy bomb driven in a lorry to the checkpoint by the civilian who died in the explosion. It was believed by the garda authorities that the attack had been organised by the IRA. Both plaintiffs in these proceedings, suspected of being members of the IRA and of having been concerned in the attack, were arrested on 24 October under the provisions of s. 30 of the Offences Against the State Act 1939. During their detention they were both asked, pursuant to s. 52 of the Act, to account for their movements during a specified period. They declined to do so or to answer any questions put to them. They were both charged with (a) the offence of membership of the IRA and (b) the offence of failing to account for their movements contrary to s. 52 of the Act and tried before the Special Criminal Court established under Part V of the Act. On 19 April 1991 both were acquitted of the charge of membership of the IRA. On 28 June 1991 both were convicted of an offence under s. 52 and sentenced to a six-month term of imprisonment. Each appealed the conviction and sentence to the Court of Criminal Appeal. By plenary summons issued 3 May 1992 these proceedings were instituted claiming declarations that s. 52 of the 1939 Act is invalid because it infringes a constitutionally protected right to silence and other relief. Both have served the terms of imprisonment imposed on them and their appeals to the Court of Criminal Appeal have been adjourned pending the outcome of these proceedings.

The 1939 Act
The 1939 Act is declared by its title to be an Act to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State and for that purpose to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts. Part III deals with unlawful organisations and makes it an offence to be a member of an unlawful organisation (as defined).S. 30 deals with the arrest and detention of suspected persons and provides that a member of the Garda Síochána can arrest and detain as therein specified a person who he suspects of having committed an offence under the Act or an offence scheduled under Part V of the Act. A person detained under the section may be asked to state his name and address and a person who refuses to do so is guilty of an offence and liable to be imprisoned for a period of six months. Part V of the Act contains the section impugned in these proceedings. S. 35 provides that Part V is to come into force by means of a proclamation by the government made when the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that Part V should come into operation. By s. 36 the government may declare offences of a particular class or kind to be scheduled offences for the purpose of the Act and such offences are tried by Special Criminal Courts established under s. 38. S. 52 provides as follows:

(1) Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the Garda Síochána may demand of such person, at any time while he is so detained, a full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or subsection of this Act or any scheduled offence.

(2) If any person, of whom any such account or information as is mentioned in the foregoing subsection of this section is demanded under that subsection by a member of the Garda Síochána, fails or refuses to give such member such account or any such information or gives to such member an account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.

The following relevant features of the Act are to be noted:

(a) The power of arrest under s. 30 is a permanent power. It can be exercised when a garda suspects that a person has committed (a) an offence specified in the Act or (b) one which has been scheduled by the government when Part V is in operation.

(b) The power under s. 52 to question a suspect arrested under s. 30 and the obligation imposed on the suspect by the section to give the information specified in it only arise when Part V of the Act has been brought into force by government proclamation.

Preliminary objections
Before considering the issues raised on the plaintiffs’ behalf I must consider two preliminary points raised by Mr Gaffney SC on behalf of the Attorney General. The first is that the issue raised in these proceedings has been determined by a judgment of the Supreme Court in People (DPP) v. Quilligan (No. 3) [1993] 2 IR 305 which I am bound to follow.

The right to silence (referred to by the court as the right to be protected against self-incrimination) was raised in that case in the context of an arrest under s. 30 of the 1939 Act. It was submitted that s. 30 was invalid having regard to Article 40 of the Constitution on the ground that that section breached the appellants’ right to silence which was protected by that article. This submission was rejected by the court. The Chief Justice, having pointed to nine separate protections which the law grants to persons arrested under s. 30 (p. 321) (to which I will later refer), went on (at p. 323):

[N]o detailed submission of any description was put before the court as to the reasons why the court should conclude that a right to silence or a right to be protected against self-incrimination was an unenumerated personal right deriving protection from Article 40 of the Constitution. No decision of the High Court or of this Court was referred to by counsel on behalf of the appellants indicating the existence of such a right as a constitutional right, unenumerated or not specified.

The court is not satisfied, having regard, in particular, to the various protections of the right to silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s. 30(5) available to a member of the Garda Síochána in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise, constitute an invasion of or failure to protect the right to silence of a citizen. On that basis the court is satisfied that the challenge under this heading must fail. The court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution.

Quilligan was a case dealing with the constitutional invalidity of s. 30 — this case is concerned with the constitutional invalidity of s. 52 and the Supreme Court made clear that it was not expressing any views on that section. The two sections contain very different powers and impose very different obligations and accordingly I do not think that it necessarily follows from the court’s decision on s. 30 in Quilligan that I am required to uphold the validity of s. 52 in this case. Furthermore, the Supreme Court decision related to submissions based on invalidity arising from Article 40 — in the present case the plaintiffs have submitted that invalidity arises not only under that article but, and this is their principal case, also under Article 38. I must hold therefore that I am not obliged to find in the defendants’ favour. But very considerable help in this case is to be obtained from the judgment in Quilligan and I will return to it later.

Secondly, it was submitted that the plaintiffs have no locus standi to advance the claim now being made. It is urged on behalf of the Attorney General that s. 52 can only abrogate the right to silence when a true response would incriminate the persons being interrogated and as the plaintiffs have not alleged that had they answered the questions asked of them they would have incriminated themselves they have no standing to challenge the section. This argument is based on a misunderstanding of the right to silence. Where the right to remain silent exists it is one enjoyed by both the guilty and the innocent (just as the presumption of innocence is similarly enjoyed) and if a statutory provision infringes that right a plaintiff who challenges its constitutional validity is not required to assert, in order to establish a locus standi, that he would have incriminated himself had he acted as required by the statute.

The common law right to silence or immunity against self-incrimination
It is not contested that what is commonly called a ‘right to silence’ is conferred by the common law on suspects in custody. What is in controversy is both the nature and scope of that right and, more importantly whether the common law right has obtained constitutional protection. If it has not, then of course, the plaintiffs’ claim must fail because parliament can limit the exercise of such rights as it pleases. If it has, then the court must exercise its power to review parliament’s enactment and determine whether or not the restrictions imposed by the statute are constitutionally permissible.

Before turning to constitutional issues it will be helpful if I firstly consider the common law right to silence. For this purpose I will refer to a helpful analysis of the right recently made by the House of Lords in R. v. Director of Serious Fraud Office, ex parte Smith [1993] AC 1.

 

Lord Mustill delivered the court’s judgment. Having pointed out that the phrase ‘the right to silence’ does not denote any single right but rather ‘refers to a disparate group of immunities which differ in nature, origin, incidence and importance’ and also to the extent to which they have already been encroached upon by statute went on (pp. 30–31) to then consider the different immunities embraced by the term and said:

Amongst these may be identified: (1) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons and bodies; (2) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them; (3) a specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind; (4) a specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock; (5) a specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority; (6) a specific immunity (at least in certain circumstances which are unnecessary to explore) possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before trial, or (b) to give evidence at the trial.

He then pointed out that each of these immunities was of great importance but that they were not all different ways of expressing the same principle. It was necessary he said, to ‘keep distinct the motives which have caused them to be embedded in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a “right to silence”.’

Looking at the various motives for the different immunities he had identified he pointed out that the first was a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business, which was an assertion of personal liberty and privacy but that ‘few would dispute that some curtailment of the liberty is indispensible to the stability of society’. He then pointed out that there was a long history of reaction against abuses of judicial interrogation and so the immunity against judicial interrogation arose. He further pointed out that there was an instinct that it is contrary to fair play to put an accused in a position where if he answers questions he may condemn himself and if he refuses he may be punished for his refusal. And finally, he pointed to the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are ‘voluntary’. He concluded as follows (p. 32):

In these circumstances I think it is clear, given the diversity of immunities and of the policies underlying them, that it is not enough to ask simply whether parliament can have intended to abolish a long-standing right to silence. Rather, an essential starting point must be to identify what variety of this right is being invoked, and what are the reasons for believing that the right in question ought at all costs to be maintained.

The case before the court was one in which a director of a company had been charged with fraud. After the charge had been preferred the Director of the Serious Fraud Office decided to investigate the accused’s conduct under statutory powers which provided that a person refusing to answer questions was liable to imprisonment, fine or both. The issue for determination was whether a person could be compelled under the statute to answer questions relating to an offence with which he had been already charged and the immunity being considered was therefore the immunity against self-incrimination when being questioned by a person authorised by statute to question him and after a criminal charge had been preferred. It was pointed out that ‘this particular immunity is much less ancient than others grouped under the rubric of the right to silence’ (p. 42), that the immunity was aimed to protect all citizens against being compelled to condemn themselves. Referring to the restriction on the power to question a detained person after he had been charged contained in the code of practice relating to persons in custody it was pointed out (at p. 43) that the restriction arose

in recognition of the fact that a person in custody is in a specially vulnerable position, and hence particularly at a disadvantage in responding to questions in a balanced and measured way, that it has been thought safer both to prohibit questioning after a certain point, and to exclude from evidence answers given to such questioning. Thus, although the rule is now expressed in terms of a prohibition directed towards investigating police officers, it is in essence a development of the law relating to the admissibility of confession.

In the light of this analysis and the comments of Lord Templeman in A.T. and T. Istel Ltd v. Tully [1992] 3 All ER 523 that the privilege against self-incrimination of a suspect ‘can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions’ (p. 530) my general conclusions on the common law right to silence relevant for the purposes of this case are as follows:

(1) The right to silence can arise in a variety of different circumstances. The nature and scope of the right and the reasons why it was conferred by law can differ in significant ways and will depend on the circumstances in which it is conferred and exercised.

(2) The right to silence can properly be referred to as an immunity or a privilege against self-incrimination. This immunity has also been termed by the Supreme Court ‘the right to protection against self-incrimination’.

(3) When a person is arrested as a suspect and subsequently charged with an offence two discrete immunities are conferred by the common law. The common law recognises (a) the immunity against self-incrimination of a suspect and (b) the immunity against self-incrimination of an accused person during his trial. The suspect’s immunity was developed in order to avoid the risk of untrue confessions being obtained from a person whilst in police custody. The law does not prohibit a suspect from confessing to a crime — nor does it prohibit the questioning of a suspect in custody. It provides, however, that a suspect should not be required to answer questions on pain of punishment should he not wish to do so, that he is free to remain silent should he so choose and that he should be informed of his right so to do. An accused’s immunity was developed from the objections taken by the common law courts to the abuses arising from court procedures involving the judicial interrogation of accused persons. As a result an accused cannot be required to give evidence at his own trial or compelled to adduce evidence on his own behalf and is entitled to remain silent during it, and not to be questioned either by the prosecution or the presiding judge.

(4) The common law immunity against self-incrimination also exists in favour of a person who is subject to interrogation by a person in authority, other than a police officer. With that immunity this case is not concerned.

(5) Parliament has, apart from the provisions of s. 52 of the 1939 Act, limited the exercise of these common law immunities. For example, ss. 15 to 19 of the Criminal Justice Act 1984 require a suspect to answer certain questions on pain of punishment, and s. 2 of the Offences Against the State (Amendment) Act 1972 contains a similar provision in the circumstances therein specified. S. 107 of the Road Traffic Act 1961 enables a garda to demand information about the driving of a motor car and punishes a failure to give the information requested. S. 52 of the Customs (Consolidation) Act 1878 requires the captain of a ship to give an account of goods on board his ship; and imposes a penalty for his failure to do so and s. 134 imposes a duty on the master of a ship to answer all questions concerning it and its cargo and voyage. S. 293(1)(a) of the Companies Act 1963 imposes a duty to give information to a liquidator on pain of punishment and obligations to answer questions put by an examiner are contained in the Companies (Amendment) Act 1990 and to answer those of an inspector are to be found in the Companies Act 1990.

The right to silence and Article 38.1 of the Constitution
The plaintiffs’ case is not merely that the principles of the common law to which I have referred are part of the law of the State by virtue of Article 50 of the Constitution — it is claimed that the common law rights are entrenched constitutional rights and have been infringed by parliament. In support of this claim the plaintiffs rely on a number of articles in the Constitution and in particular on Article 38.1.

This article provides that: ‘no person shall be tried on any criminal charge save in due course of law’, an article which, as the courts have shown, implies a great deal more than a simple assertion that trials are to be held in accordance with laws enacted by parliament. It is an article couched in peremptory language and has been construed as a constitutional guarantee that criminal trials will be conducted in accordance with basic concepts of justice. Those basic principles may be of ancient origin and part of the long established principles of the common law, or they may be of more recent origin and widely accepted in other jurisdictions and recognised in international conventions as a basic requirement of a fair trial. Thus, the principle that an accused is entitled to the presumption of innocence, that an accused cannot be tried for an offence unknown to the law, or charged a second time with the same offence, the principle that an accused must know the case he has to meet and that evidence illegally obtained will generally speaking be inadmissible at his trial are all principles which are so basic to the concept of a fair trial that they obtain constitutional protection from this article. Furthermore, the Irish courts have developed a concept that there are basic rules of procedure which must be followed in order to ensure that an accused is accorded a fair trial and these basic rules must be followed if constitutional invalidity is to be avoided.

The first immunity I will consider is that of an accused at his trial as a result of which he is not obliged to give evidence or be required to adduce evidence on his own behalf, and cannot be questioned against his will. This is an immunity long established in the common law world and has been a basic concept of criminal trials in this country for many years. It was enacted as the 5th Amendment to the American Constitution. It was declared in article 14(8)(3)(g) of the UN International Covenant on Civil and Political Rights that in the determination of any criminal charge against him everyone shall be entitled not to be compelled to testify against himself or to confess guilt. It was provided in article 6(1) of the European Convention on Human Rights that in the determination of a criminal charge against him everyone has the right to a fair hearing and the European Court of Human Rights has construed that article as conferring on an accused person the right to remain silent and not to incriminate himself (see Funke v. France (1993) 16 EHRR 297). I am of the opinion that the concept is such a long-standing one and so widely accepted as basic to the rules under which criminal trials are conducted that it should properly be regarded as one of those which come within the terms of the guarantee of a fair trial contained in Article 38.1.

But this case is of course concerned with the immunity conferred by law on a suspect in custody not with an accused on trial and it was submitted on behalf of the Attorney General that as this article clearly relates to trials of persons on criminal charges and makes no mention of suspects in custody the right to silence of a suspect cannot obtain protection from this article. I think that is too restrictive a view of the article. The fairness of a trial may be compromised by what has happened prior to it and this is why, for example, evidence which has been obtained prior to the trial by improper means may vitiate the trial itself. It would follow, in my opinion, that if the right to silence of a suspect can properly be regarded as a basic requirement for our system of criminal justice then it would be protected by this article.

The immunity now being considered is of much later origin than that conferred on accused persons at their trial. But it is nonetheless one widely acknowledged in jurisdictions having comparable legal systems to ours and who share with us common views on basic civil rights. It was, as I have pointed out, recognised by the European Court of Human Rights in Funke v. France as one which is part of the concept of fairness in a criminal trial and I am satisfied that in the construction of our Constitution our courts should reach a similar conclusion and hold that the immunity conferred by the common law on suspects is one which obtains the protection of Article 38.1.

Restrictions on the exercise of the right
But this conclusion does not end the case. Once it is established that an asserted right is a constitutionally protected right the court must then go on to examine the validity of the restrictions imposed on its exercise by the enactment impugned in the case. In this case the plaintiffs have accepted, and correctly so, that the exercise of the right to silence may in certain circumstances be abridged by parliament and so the issue for resolution (as so often in cases on claimed infringements of constitutional rights) is the constitutional validity of the impugned statutory restriction.

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 the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example Sunday Times v. United Kingdom (1979) 2 EHRR 245) 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 overriding 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:

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,

(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective (Chaulk v. R. (1990) 3 SCR 1303, 1335–1336.

Cox v. Ireland [1992] 2 IR 503 is an example of a case in this country in which disproportionate means to obtain a legitimate object invalidated a statutory provision. It dealt with the constitutional validity of s. 34 of the Offences Against the State Act 1939. That section provided that whenever a person was convicted by a Special Criminal Court of an offence set out in the Schedule to the Act who was at the time of his conviction an employee of the State then he should forfeit his office or employment and be disqualified from holding office or employment in the State service for a seven year period. In holding that the section was invalid the Supreme Court pointed out (at pp. 522–23) that:

[T]he State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its laws to provide onerous and far-reaching penalties and forfeitures imposed as a major deterrent to commission of crimes threatening such peace and order and State authority, and is also entitled to ensure as far as practicable that amongst those involved in the carrying out of functions of the State, there is not included persons who commit such crimes.

But the court went on to point out that in pursuing these objectives the State must continue to protect as far as is practicable the constitutional rights of the citizen. Having examined the operation of the section it concluded that because the State had not as far as was practicable protected the citizen’s constitutional rights notwithstanding the fundamental interests of the State which the section sought to protect the provisions of the section were impermissibly wide and indiscriminate.

Applying the proportionality test to s. 52 of the 1939 Act I will consider first the object of the restrictions contained in it. The section only applies when Part V of the 1939 Act is in force, that is when a proclamation is in force to the effect that the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of peace and order. The long title and the scope of the provision of the Act show that its purpose was to make provision, mainly in terms of arrest, trial and punishment, for acts and conduct calculated to undermine public order and the authority of the State (perHenchy J in People (DPP) v. Quilligan (No. 1) [1986] IR 495 at p. 513; [1987] ILRM 606 at p. 628) and it is clear that the main object which s. 52 was designed to achieve was to assist the police in their investigation into serious crimes of a subversive nature involving the security of the State. The object of this section is obviously one for which parliament in a democratic state is entitled to legislate. It is true that a suspect may be arrested under s. 30 for an ordinary non-subversive type of offence if it is a scheduled offence and has not been committed for any political motive. It is unnecessary, however, for me to decide whether the powers under s. 52 could be operated validly and constitutionally in such circumstances as in this case the plaintiffs had been arrested because of suspicion of their involvement in serious subversive crimes and the section was operated for the purposes for which parliament intended it to be used.

Quite clearly the section imposed a restriction on the right to silence of a suspect arrested under s. 30. But I do not think that it can be said that these provisions are arbitrary or based on any irrational considerations. What falls for consideration, then, is whether these restrictions impair the suspect’s rights as little as possible and are such that their effects are proportional to the objective which the section seeks to achieve.

In applying the test of proportionality the court is required to assess the detriment to the right-holder which the restriction on the exercise of the right will impose. In relation to the right to silence it will be recalled that the reason why the law protects a suspect in custody against self-incrimination is to minimise the risk that he may wrongfully confess to having committed a crime. Undoubtedly a law which requires a suspect to give information under pain of punishment if he refuses to do so will increase this risk but in assessing the consequences of the law it is both helpful and relevant to consider what other protections the law affords to minimise it and provide safeguards against the possible abuse of the statutory power. The protections afforded to a person in custody under s. 30 have been summarised by the Chief Justice in People (DPP) v. Quilligan (No. 3) [1993] 2 IR 305 at pp. 321–322 as follows:

(1) If the arresting garda does not have a bona fide suspicion based on reason of one or other of the matters provided for in the section the arrest is unlawful and he may be released by an order pursuant to Article 40 of the Constitution — State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550.

(2) At the time of the arrest the suspect must be informed, if he does not already know, of the offence pursuant to the Act of 1939 or scheduled for its purposes, of which he is suspected, otherwise his arrest will be unlawful — People (DPP) v. Walsh [1980] IR 294.

(3) The person detained has, during his detention, a right to legal assistance, and the refusal to grant it to him when reasonably requested can make his detention unlawful — In re the Emergency Powers Bill 1976 [1977] IR 159 and Director of Public Prosecutions v. Healy [1990] ILRM 313.

(4) The right to medical assistance — In re the Emergency Powers Bill 1976 [1977] IR 159.

(5) The right to access to the courts — In re the Emergency Powers Bill 1976 [1977] IR 159.

(6) The right to remain silent and the associated right to be told of that right — People (DPP) v. Quilligan (No. 1) [1986] IR 495.

(7) The Judges’ Rules with their provisions in regard to the giving of cautions and the abstention from cross examination of a prisoner apply to a person in detention under s. 30 — People (DPP) v. Quilligan (No. 1) [1986] IR 495.

(8) A person detained under s. 30 must not, in the words of Walsh J in People (DPP) v. Quilligan (No. 1) [1986] IR 495, ‘be subject to any form of questioning which the courts would regard as unfair or oppressive, either by reason of its nature, the manner in which it is conducted, its duration or the time of day or of its persistence into the point of harassment, where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned’.

(9) If the detention of a person arrested under s. 30 is extended by a chief superintendent for a further period after the first period of twenty-four hours, he must entertain also the necessary bona fide suspicion of the suspect that justified his original arrest and must be satisfied that his further detention is necessary for the purposes provided for in the section — People (DPP) v. Eccles, McPhillips and McShane (1986) 3 Frewen 36.

Recalling that the object which s. 52 has been enacted to achieve, namely the investigation and punishment of serious subversive crime, and having regard to the legal protections which exists which will minimise the risk involved in the operation of the section as outlined above (with the exception of paragraph (6)), it seems to me that the restriction on the right to silence imposed by the section cannot be regarded as excessive and that it is proportionate to the objective which it is designed to achieve. It follows therefore that the section does not infringe Article 38 and is constitutionally valid.

Other issues on Article 38
There are two other matters to which I should briefly refer. It was submitted on behalf of the plaintiffs that the section is invalid because it abridged the presumption of innocence to which the plaintiffs were entitled. I do not think that this is so. The section imposes a duty on persons suspected of involvement in a crime to give certain information. The fact that compliance with the section may result in the production of evidence which may be used at a subsequent trial to establish guilt does not infringe the legal presumption of innocence which the accused will continue to enjoy in the same way as a law which allows the taking of fingerprints does not infringe the presumption of innocence of an accused person. Both laws deal with the collection of evidence, not with a legal presumption which both a suspect and an accused will continue to enjoy.

Secondly, it was submitted that the section breached the plaintiffs’ right to a trial based on long established adversarial principles and imposed one of an inquisitorial nature. This is not so. The right to silence enjoyed by an accused at his trial is based on the law’s rejection of an inquisitorial type of criminal trial. The requirements of the section do not bear on trial procedures. The right to silence of a suspect in custody is derived from different principles. He may be questioned whilst in custody provided he gets the proper caution from his interrogator and is informed of his right to silence. A law which requires him to give specified information does not, in my opinion, alter the essential features of either his custody as a suspect or of any subsequent trial he may undergo as an accused.

The right to silence and Article 40
The main emphasis of the plaintiffs’ argument has been on Article 38 and the claim that the common law right to silence has been constitutionally protected by that article. But the plaintiffs also based a claim on Article 40 to which I should refer.

It was pleaded that the impugned section breached the provision of Article 40.1 (which contains the guarantee of equality before the law) in that it treated in a manner prohibited by the article persons accused of crimes referred to in the section differently from those accused of other crimes. I cannot agree with this submission. There are perfectly rational and valid reasons why parliament should legislate in respect of the serious crimes referred to in the 1939 Act in a manner different to that in which it legislates for other types of crimes and in doing so I do not consider that the guarantee of equality of treatment contained in this sub-article was infringed.

Secondly, it is claimed that the right to silence and cognate rights are unspecified ‘personal’ rights within the meaning of Article 40.3.1° and that the impugned section infringes the protection accorded to such rights by this sub-article. Again, I must disagree. It seems to me that the Constitution should not be construed as protecting the right to silence in both Article 38.1 and Article 40.3.1° and that it is not one of those ‘personal’ rights which adhere to citizens as human persons to which Article 40.3.1° refers but rather one of those fundamental civil rights arising from a free democratic society established by the Constitution which obtains protection elsewhere. But even if this were not so, the protection guaranteed is subject to any restrictions on the exercise of the right which are constitutionally permissible and, for the reasons already given, s. 52 would not constitute an impermissible restriction and so no breach of Article 40.3.1° would have been established.

In the event, therefore, I must dismiss the plaintiffs’ claims.

 

Rock v. Ireland

Supreme Court,

November 19, 1997

Hamilton C.J.
19th November 1997

This is an appeal brought by the applicant, against the judgment of Murphy J. delivered on the 10th November, 1995 and the order made in pursuance thereof, whereby he dismissed the applicant’s claim for:”
(a) a declaration that s. 18 of the Criminal Justice Act, 1984, is inconsistent with the provisions of Bunreacht na hÉireann and accordingly unconstitutional;
(b) a declaration that s. 19 of the Criminal Justice Act, 1984, is inconsistent with the provisions of Bunreacht na hÉireann and accordingly unconstitutional;
(c) an order of prohibition and/or an injunction (including interim and interlocutory order) restraining the notice party from further prosecuting the proceedings against the applicant.Impugned Provisions
[The provisions of ss. 18 and 19 of the Criminal Justice Act, 1984, as set out in the headnote, supra, were set out in the judgment.]
Presumption of Constitutionality
The Act having been passed by both Houses of the Oireachtas and signed by the President in accordance with the provisions of the Constitution is entitled to the presumption of constitutionality.
As the provisions of the Act and the impugned sections thereof, enjoy the presumption of constitutionality, the onus is on the applicant to establish clearly that the impugned sections are repugnant to the Constitution.
In considering the question whether the impugned sections of the Act are repugnant to the Constitution, the Court must apply the principles of the presumption of constitutionality as laid down by it in East Donegal Co-operative Livestock Mart Ltd. v. The Attorney General [1970] I.R. 317, which are summarised in the decision of this Court in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656, as follows at p. 661 of the report:”
“(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the bill are intended to be conducted in accordance with the principles of constitutional justice, and
(2) That as between two or more reasonable constructions of the terms of the bill, the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions.”
Relevant provisions of the Constitution
The provisions of the Constitution upon which the applicant relies are:”
“Article 38, s. 1
No person shall be tried on any criminal charge save in due course of law.”
“Article 40, s. 3, sub-s. 1
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.”
Background to the case
The applicant is charged that on the 4th May, 1994, at the Burlington Hotel, in the Dublin Metropolitan District he without lawful authority or excuse had in his possession forged banknotes, to wit, 2,000 forged United States 100 dollar banknotes, knowing the same to be forged, contrary to s. 8 of the Forgery Act, 1913.
The circumstances in which that charge came to be made are set out in the affidavit grounding the application to the High Court, that is say, the affidavit of Mr. Patrick McGonagle, the solicitor on behalf of the applicant. In his affidavit sworn on the 19th December, 1994, Mr. McGonagle having recited the charge to which I have already referred goes on in para. 3 of this affidavit to say:”
“I say and believe that the evidence which the prosecution intends to rely upon is as follows:”
(a) In or about the afternoon of 4th May, 1994, the applicant was arrested in a cubicle in the public toilet of the Burlington Hotel, Dublin 4. The door had been forced open. The prosecution alleges that on the floor between the legs of the applicant was a bag marked “Aer Rianta Duty Free at Shannon”.Inside the bag was a quantity of notes which appeared to be U.S. dollars. The prosecution intends to call evidence from a member of the United States Secret Service Treasury Department that the dollars are forged.
(b) The applicant was conveyed to Donnybrook garda station where he was detained under s. 4 of the Criminal Justice Act, 1984. The applicant was then taken to an interview room by Detective Garda Ryan and Inspector John McKeown. In the course of the interview Detective Garda Ryan alleges that he explained ss. 18 and 19 of the Criminal Justice Act, 1984, to the applicant. The applicant gave his name and address in response to the questions and in one instance replied Tina Davies.
(c) At 10.05 p.m. the applicant was again taken to the interview room. Present were, Detective Ryan and Detective Garda John Kerins. Detective Ryan alleges that he produced a copy of the Garda Síochána (Guide) 6th Edition and read ss. 18 and 19 of the Criminal Justice Act, 1984, to the applicant, and that he explained the meaning of the sections in ordinary language. He also made certain statements to the accused as to the meaning of the law in regard to the sections. The applicant declined to reply to questions put to him during the interrogation.”
As stated by the learned High Court Judge, there is no conflict with regard to the evidence given by Mr. McGonagle as aforesaid.
Proceedings in the High Court
On the basis of the facts deposed to in the aforesaid affidavit of Patrick McGonagle filed on the 13th January, 1995 and the statement of grounds filed on that day, the applicant applied for, and obtained, an order of the High Court, from Kinlen J., granting to the applicant leave to apply for the declarations set forth at the outset of this judgment and the order of prohibition therein set forth, on the grounds set forth at paras. (a) to (d) of the aforesaid statement of grounds.
By the said order, it was directed that the Director of Public Prosecutions be joined as notice party to the said proceedings.
Pursuant to the provisions of O. 84, r. 22 (4) a statement of grounds of opposition was filed by the Chief State Solicitor on behalf of the respondents and the notice party on the 24th March, 1995.
The applicant’s application was heard in the High Court, Murphy J., on the 9th and 10th November, 1995 and the learned trial judge delivered his judgment thereon on the 10th November, 1995.
Judgment of the High Court
It appears from a consideration of the terms of the judgment of the learned trial judge that:”
(i) The applicant’s objection to the provisions of ss. 18 and 19 of the Act related to the inferences permitted to be drawn by a court, in determining whether to send forward an accused for trial or whether there is a case to answer, and by the court (or, subject to the judge’s direction, the jury) in determining whether the accused is guilty of an offence charged (or of any other offence of which he could lawfully be convicted on that charge) from the failure or refusal of an accused to account;
(a) for the presence of an object, substance or mark, which a member of the Garda Síochána reasonably believes may be attributable to the participation of the person arrested in the commission of the offence in respect of which he was arrested, on his person, or in or on his clothing or footwear, or otherwise in his possession, or in any place in which he is at the time of his arrest (vide s. 18), or
(b) for his presence at a particular place at or about the time the offence in respect of which he was arrested is alleged to have been committed (vide s. 19),
(ii) these sections permit the court (or subject to the judge’s directions, the jury) to draw from such failure or refusal such inferences as appear proper, and on the basis of such references, to treat such failure or refusal as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material;
(iii) the applicant submitted that the provisions of these sections which permitted such inferences to be drawn from the failure or refusal of an accused to account as provided in the said sections constituted an unwarranted interference with an accused person’s “right to silence”.
Having considered the case law as it stood at the time, and in particular the judgment of Costello J. (as he then was) in Heaney v. Ireland [1994] 3 I.R. 593, Murphy J. accepted that the right of a suspect to remain silent was protected by Article 38, s. 1 of the Constitution.
He further held that the right was not unlimited, and could be curtailed by the legislature in the interests of the common good. Applying the test of proportionality (as enunciated by Costello J. in Heaney v. Ireland )to ss. 18 and 19 of the Act, the learned trial judge found those sections not to be an excessive intrusion on the rights of the accused and hence not invalid having regard to the provisions of the Constitution.
In deciding this, he referred to the fact that in Heaney v. Ireland ,Costello J. had upheld the constitutionality of s. 52 of the Offences Against the State Act, 1939, which made failure to account for one’s movements when requested to do so under that Act a punishable offence. Murphy J. stated that:”
“. . . Section 52 of the Act of 1939 is far more draconian than the Act of 1984 and entrenches to a far greater extent on the right to silence at the investigative stage of a criminal trial. Silence where s. 52 of the Act of 1939 applies is a criminal offence and punishable as such. The high water-mark of failure to provide information under the Act of 1984 is that inferences may be drawn which would be detrimental to the interests of the accused on his subsequent trial in relation to the matters under investigation.”
It should be noted that, subsequent to the decision of Murphy J. in this case, the Supreme Court dismissed an appeal brought by the applicant in Heaney v. Ireland [1996] 1 I.R. 580 and upheld the decision of Costello J. in the High Court [1994] 3 I.R. 593.
It was also argued before the High Court that ss. 18 and 19 contravened the presumption of innocence, which had been held by the Supreme Court in O’Leary v. The Attorney General [1995] 1 I.R. 254, to be constitutionally protected. Having examined the Supreme Court’s reasoning in that case, the learned trial judge concluded:”
“It seems to me the Supreme Court accepted that where a statute provided that a particular act or event was to constitute some evidence of guilt the value of which could be challenged by a variety of means that this was not unconstitutional. It did not shift the burden of proof to the accused but merely provided evidence against him. In O’Leary v. Attorney General , the Supreme Court had to consider the proper interpretation of the section and the effect of what was deemed to be evidence of the guilt of the accused. In the present case s. 18 does not refer to evidence but only the possibility that inferences may be drawn from certain facts.”
Counsel for the applicant disputed the validity of Murphy J.’s conclusions in relation to both the presumption of innocence and the right to silence. It was submitted to this Court that:”
(i) sections 18 and 19 of the Act of 1984 are significantly different from s. 52 of the Offences Against the State Act, 1939, and from other statutory provisions under the Companies Act, the Social Welfare Acts, Road Traffic Acts, Income Tax Acts and the like;
(ii) the applicant’s right to avoid self-incrimination is not in conflict with the State’s right to investigate crime and protect the public: consequently no question of balancing competing rights arises; and
(iii) in the event of a balancing of rights being required, ss. 18 and 19 should be held to have failed the test of proportionality.
There is no doubt that, in reaching his decision, the learned trial judge attached considerable significance to a comparison between ss. 18 and 19 of the Act of 1984 and what he called the “draconian” provisions of s. 52 of the Offences Against the State Act, 1939, which was upheld in Heaney v. Ireland [1996] 1 I.R. 580. Counsel for the applicant pointed out that Part V of the Act of 1939, which contains s. 52, is not an ordinary piece of legislation, but only comes into effect in certain limited circumstances.
The Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580, also drew attention to that fact. At p. 589 of the report, O’Flaherty J. in delivering the judgment of the Court, stated:”
“Part V is in the nature of an exceptional provision. It comes into operation only when the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and makes and publishes a proclamation to that effect pursuant to the provisions of s. 35 of the Act.”
He continued:”
“It is in this context that the problem which arises in the present case falls to be resolved. On the one hand, constitutional rights must be construed in such a way as to give life and reality to what is being guaranteed. On the other hand, the interest of the State in maintaining public order must be respected and protected. We must, therefore, ask ourselves whether the restriction which s. 52 places on the right to silence is any greater than is necessary having regard to the disorder against which the State is attempting to protect the public.”
Clearly, the Act of 1939 was intended to deal with circumstances in which an extraordinary threat to public order, and perhaps even to the security of the State, was posed. The Act of 1984 is, by contrast, a piece of ordinary criminal legislation.
There is a further distinction to be made between s. 52 and ss. 18 and 19. Failure to respond to a request for information under s. 52 is not a matter from which inferences adverse to the accused could be drawn at a trial: the most serious consequence of such failure would be a six-month prison sentence. A similar failure or refusal to comply under ss. 18 and 19 will not attract a penal sanction in and of itself, but the drawing of an inference could result in an accused being convicted of the substantive charge in circumstances where there might otherwise have been insufficient evidence. Viewed in this way, the potential consequences of ss. 18 and 19 are more serious, particularly in light of the extremely broad range of offences to which the Act of 1984 applies, which give a possibility of anything from 5 years to life imprisonment. These distinctions emphasize the need for ss. 18 and 19 to be considered on their own merits, and in their own legislative context. The decision of the Court in Heaney v. Ireland does not automatically dispose of the issues in this case.
In this case it is submitted on behalf of the applicant that the provisions of ss. 18 and 19 of the Act infringe the plaintiff’s constitutional rights to silence and the presumption of innocence, rights enjoyed by every person accused of a criminal charge, and must be declared to be unconstitutional.
There is no doubt that the right to silence and the presumption of innocence in a criminal trial are implicit in the provisions of the Constitution but as stated by this Court in Heaney v. Ireland [1996] 1 I.R. 580 the right to silence is not absolute but is subject to public order and morality.
The duty imposed on this Court is to analyse the provisions of the impugned sections of the Act to ascertain whether they constitute a breach of the foregoing constitutional rights of persons, including the plaintiff, charged with a criminal offence.
In doing so, it is necessary only to analyse in detail the provisions of s. 18 of the Act of 1984 because the same considerations apply in respect of s. 19 of the Act.
In the first instance, s. 18 only applies where a person is arrested without warrant by a member of the Garda Síochána and there is
(i) on his person, or
(ii) in or on his clothing or footwear, or
(iii) otherwise in his possession, or
(iv) in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object and such member reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of the offence in respect of which he was arrested.
In these circumstances, the section entitles the member of the Garda Síochána, having informed the person arrested of his belief that the presence of the object, substance or mark may be attributable to his participation in the commission of the offence in respect of which he was arrested, to request him to account for the presence of such object, substance or mark. If the arrested person fails or refuses to account for the presence of such object, substance or mark, certain consequences may ensue by reason of such failure.
If proceedings are brought against the person for the offence and evidence is given of the aforesaid matters, the court, in determining whether to send forward the accused for trial or whether there is a case to answer, and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences from such failure or refusal as appear proper.
The section then provides that on the basis of such inferences, the failure or refusal to account for the presence of such object, substance or mark may be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material but specifically provided that:”
“. . . a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal.”
The foregoing provisions shall not, by virtue of the terms of sub-s. 4 of s. 18, have effect unless the accused was told in ordinary language by the member of the Garda Síochána when making the request what the effect of the failure or refusal might be.
It is clear from the aforesaid summary of the provisions of s. 18 of the Act of 1984 that, while a court may draw such inferences from an accused’s failure or refusal to account for the presence of an object, substance or mark in the circumstances provided for in the section, it is not obliged to draw any inference from such failure or refusal.
It is, however, entitled to draw such inferences as appear proper. It is purely a matter for the court, or subject to the judge’s directions, the jury, to decide whether any inferences should be drawn or what inferences may be properly drawn from the failure or refusal of the accused person to account for the presence of such substances.
In deciding what inferences may properly be drawn from the accused person’s failure or refusal, the court is obliged to act in accordance with the principles of constitutional justice and having regard to an accused person’s entitlement to a fair trial must be regarded as being under a constitutional obligation to ensure that no improper or unfair inferences are drawn or permitted to be drawn from such failure or refusal.
As stated by O’Flaherty J. in delivering the judgment of this Court in O’Leary v. The Attorney General [1995] 1 I.R. 254 at p. 266:”
“Courts, whether comprising a judge sitting with a jury or a judge or judges only, will not act as automatons in the assessment of evidence. With a statutory provision setting out what is to be regarded as evidence – and whether it is called a presumption or not is of no moment – the court must always approach its task in a responsible manner and have regard to the paramount place that the presumption of innocence occupies in any criminal trial.”
It is clear from the provisions of the said section that it does not interfere in any way with the accused person’s right to the presumption of innocence or the obligation on the prosecution to establish guilt beyond all reasonable doubt. The burden of proof which rests on the prosecution in a criminal charge is not in any way affected by the provisions of the impugned sections, which merely provide a factor which may be adduced as evidence in the course of the trial.
If inferences are properly drawn, such inferences amount to evidence only; they are not to be taken as proof. A person may not be convicted of an offence solely on the basis of inferences that may properly be drawn from his failure to account; such inferences may only be used as corroboration of any other evidence in relation to which the failure or refusal is material. The inferences drawn may be shaken in many ways, by cross-examination, by submission, by evidence or by the circumstances of the case.
The Court is satisfied that the provisions of ss. 18 and 19 of the Act of 1984 do not constitute an attack on, or interference with, an accused person’s constitutional right to the “presumption of innocence” and is satisfied that it has not been established by the applicant that the provisions of the said sections are repugnant to the provisions of the Constitution.
Right to silence
It was further submitted on behalf of the applicant:”
(i) that the provisions of the impugned sections of the Act which permitted the court to draw such inferences as it considered proper from the failure or refusal of an accused to account for either the presence of the object, substance or mark (s. 18) or to account for his presence at a particular place at a particular time (s. 19) and which permitted such inferences to be treated as, or as capable of amounting to, corroboration of any other evidence in relation to which the failure or refusal is material, constituted an unwarranted attack on the accused persons right to silence;
(ii) that the right to silence, or the right to protection against self incrimination, is a right or privilege which is guaranteed both at common law and under the provisions of the Constitution;
(iii) that in permitting inferences, which may be prejudicial to an accused person, to be drawn from the exercise of such right, the sections permitted an unwarranted attack on the exercise by an accused of such right.
In the course of his judgment in Heaney v. Ireland [1994] 3 I.R. 593, Costello J. stated at p. 601 that:” “It is not contested that what is commonly called a “right to silence”is conferred by the common law on suspects in custody. What is in controversy is both the nature and scope of that right and, more importantly, whether the common law right has obtained constitutional protection. If it has not, then of course the plaintiff’s claim must fail because parliament can limit the exercise of such rights as it pleases. If it has, then the court must exercise its power to review parliament’s enactment and determine whether or not the restrictions imposed by the statute are constitutionally permissible.”
While Costello J. concluded that the right of a suspect not to answer questions as regards his movements was founded on Article 38, s. 1 of the Constitution, rather than Article 40 of the Constitution, this Court held that the right to silence was but a corollary to the freedom of expression that is conferred by Article 40 of the Constitution.
The Court, in its judgment delivered by O’Flaherty J. at [1996] 1 I.R. 580, stated at p. 585 of the report, that:”
“Just as the freedom of expression clause in the Constitution is itself qualified, so must the right to remain silent be qualified.”
and at p. 589:”
“In the light of these cross-currents of judicial and juristic opinion, as well as the various statutes already cited, the Court is of the opinion that the matter calling for resolution on this appeal is whether the power given to the Garda Síochána in the circumstances by the section is proportionate to the objects to be achieved by the legislation. As previously pointed out, the case falls to be resolved under a Constitution which guarantees liberty for the exercise of certain rights including the right of citizens to express freely their convictions and opinions. The right to freedom of expression necessarily implies the right to remain silent. The provisions of statutes of the British parliament are not necessarily a safe guide to what is constitutionally permissible for the Irish legislature. However, it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right – the right to silence.”
The protection of citizens from attacks on their person or property is, to some degree, an aim of all criminal legislation. It is a constitutional duty which is imposed on the State and the State is entitled to act on it, as long as due regard is had for the constitutional rights of accused persons. To suggest, therefore, as counsel for the applicant did in this case, that there is no conflict of rights in this instance, is misleading.
The question to be considered by this Court is whether the restrictions which the impugned sections place on the right to silence is any greater than is necessary to enable the State to fulfil its constitutional obligations.
The principle of proportionality is by now a well-established tenet of Irish constitutional law. It surfaced obliquely in Cox v. Ireland [1992] 2 I.R. 503, in which the Supreme Court held s. 34 of the Offences Against the State Act, 1939, to be “impermissibly wide and indiscriminate” in its restriction of the constitutional right to earn a livelihood. In Heaney v. Ireland [1994] 3 I.R. 593 at p. 607 it was explained by Costello J. as follows:”
“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 (see, for example Times Newspapers Ltd. v. United Kingdom (1979) 2 E.H.R.R. 245) and has recently been formulated by the Supreme Court of Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding 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:”
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.”
In the context of balancing competing constitutional rights or duties, the Supreme Court in Tuohy v. Courtney [1994] 3 I.R. 1, stated at p. 47 of the report:”
“The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.
It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the constitutional validity of these impugned statutory provisions.”
It is the opinion of this Court that, in enacting ss. 18 and 19 of the Act of 1984, the legislature was seeking to balance the individual’s right to avoid self-incrimination with the right and duty of the State to defend and protect the life, person and property of all its citizens. In this situation, the function of the Court is not to decide whether a perfect balance has been achieved, but merely to decide whether, in restricting individual constitutional rights, the legislature have acted within the range of what is permissible. In this instance, this Court finds they have done so, and must accordingly uphold the constitutional validity of the impugned statutory provisions. While it is true that ss. 18 and 19 could lead to an accused being convicted of a serious offence in circumstances where he or she might otherwise have been acquitted, there are two important, limiting factors at work. Firstly, an inference cannot form the basis for a conviction in the absence of other evidence. As the learned trial judge pointed out:”
“. . . there is no doubt a strengthening of the State’s case but in no sense is it final and in neither event is the accused required to exculpate himself.”
Secondly, only such inferences “as appear proper” can be drawn: that is to say, an inference adverse to the accused can only be drawn where the court deems it proper to do so. If it does not, then neither judge nor jury will be permitted to draw such inference. Thus, for example, a court could refuse to allow an inference in circumstances where its prejudicial effect would wholly outweigh its probative value as evidence.
The Court is not satisfied that the provisions of the impugned sections are so contrary to reason and fairness as to constitute an unjust attack on the applicant’s constitutional rights and the appeal herein must be dismissed.

Re National Irish Bank Ltd

, High Court, July 13, 1998, Shanley J

National Irish Bank, Re (No. 1) [1998] IEHC 116; [1999] 3 IR 145; [1999] 1 ILRM 321 (13th July, 1998)
THE HIGH COURT
No. 89 COS

IN THE MATTER OF NATIONAL IRISH BANK LIMITED (UNDER INVESTIGATION) AND
IN THE MATTER OF THE COMPANIES ACT 1990.

JUDGMENT delivered the 13th day of July 1998 by Mr. Justice Peter Shanley .

1. On the 30th March, 1998 the Hon. John Blayney, a retired Judge of the Supreme Court, and Thomas Grace, FCA, were appointed by the High Court on the application of the Minister for Enterprise and Employment pursuant to Section 8(1) of the Companies Act, 1990 to be joint inspectors to investigate and report on the affairs of National Irish Bank Limited relating to:-

(i) The improper charging of interest to accounts of customers of the said National Irish Bank Limited between 1988 and the 30th March, 1998;
(ii) The improper charging of fees to accounts of customers of the said National Irish Bank Limited between 1988 and the 30th March, 1998;
(iii) The improper removal of funds from accounts of customers of the said National Irish Bank Limited between 1988 and the 30th March, 1998;
(iv) All steps and action taken by National Irish Bank Limited its directors and officers, servants or agents in relation to the charging of such fees or interest or the removal of any funds without the consent of the account holders and their actions arising from the issues when discovered.
(v) The manner in which the books records and accounts of the said National Irish Bank Limited reflected the foregoing matters.
(vi) The identity of the person or persons responsible for and aware of any of the practices referred to above.
(vii) Whether other unlawful or improper practices existed in National Irish Bank Limited which served to encourage the evasion of any revenue or other obligations on the part of the bank or third parties.

2. The High Court having so appointed the Inspectors, directed them to investigate the said matters and deliver an interim report to the High Court not later than the 22nd June, 1998. Prior to that date, the Inspectors sought the Court’s directions on a number of matters in consequence of which Mr. Justice Kelly pursuant to Section 7(4) of the Companies Act, 1990 directed, on the 11th June, 1998, that there be a trial of issues identified in a draft Notice of Motion then proffered to the Court by the Inspectors. The following are the issues:-

1. A determination that persons (whether natural or legal) from whom information, documents or evidence are sought by the Inspectors in the course of their investigation under the Companies Act, 1990 are not entitled to refuse to answer questions put by the Inspectors or to refuse to provide documents to the Inspectors on the grounds that the answers or documents may tend to incriminate him, her or it.
2. A determination that the procedures outlined by the Inspectors in their letters dated the 4th June (contained within Exhibits C and D to the Affidavit of John Blayney and Tom Grace sworn herein on the 11th June, 1998) are consistent with the requirements of natural and constitutional justice.

3. Mr. Justice Kelly, in his Order of the 11th June, 1998, directed service of the Notice of Motion on National Irish Bank Limited (herein called NIB), the Attorney General, the Minister for Enterprise and Employment and on an employee representing all employees and agreed by such employees to represent them.

4. In an Affidavit sworn on the 11th June, 1998 the Inspectors indicated the work undertaken by them up to that point in time. They indicated that they had written to the bank and all its current and former employees who held office since 1988 asking for any information or documents relevant to the enquiries of the Inspectors. The Inspectors also advertised in the newspapers and also set about arranging interviews. After writing to these employees, they received correspondence from solicitors acting for such employees or from employees themselves. In summary that correspondence asserted that the employees (or former employees of NIB) had:

(a) The right to be legally represented at any interview.
(b) The right to be legally represented and present when evidence was given concerning their clients.
(c) The right to cross-examine anyone giving evidence concerning their clients.
(d) The right to advance notice of questions to be asked at interview.
(e) The right to all documents concerning their clients.
(f) The right to refuse to answer questions where the answer might possibly incriminate them.

5. Having regard to these assertions and concerns, the Inspectors wrote to the Solicitors for the employees or former employees of NIB on the 4th June, 1998. Their letter to Mason Hayes & Curran (who represented seventy-five employees) was as follows:

“Dear Sirs,

1 National Irish Bank Limited
Your clients John O’Reilly and Others

We refer to your letter of the 21st May, 1998, your fax of 26th May, 1998 and our subsequent meeting with your Mr. Hoy and Mr. McDowell S.C. Arising from that correspondence and meeting it may be helpful to set out the approach we intend to take in relation to certain issues discussed.
1
1. Right to refuse to answer questions on the ground of self-incrimination.

We have been advised that a person giving evidence to Inspectors pursuant to Section 10 of the Companies Act, 1990 is not entitled to refuse to answer any question on the ground that the answer may tend to incriminate him or her. We understand that you may take a different view or at least do not consider that you can advise your clients to accept without determination of the issue by the Court, that they are not entitled to refuse to answer questions on this basis. Without pre- judging the course the inspection may take, we also understand that this issue is likely to arise in the course of interviews and indeed you have expressed concern that one or other of your clients might somewhat arbitrarily become the subject of a test case.

2. Procedures to be followed

We have explained that we consider that the first phase of interviews with witnesses will be an information gathering exercise. These interviews will be conducted in private. A transcript of the witness’s evidence will be available to the witness from the stenographers on payment of the cost of the additional copy. We have no objection to any witness being accompanied by a legal adviser at such interview but, with respect, we consider that it would be inappropriate certainly premature and probably impossible to treat such interviews as approximating to a trial with an entitlement to attend and cross-examine the evidence given by other witnesses.

There can be no question of our indemnifying your clients or any of them in relation to costs whether legal or otherwise. Section 13 of the Companies Act, 1990 states that the expenses of and incidental to an investigation shall be defrayed by the Minister for Justice. We have no role to play in this regard and any question of costs which you wish to pursue must be addressed to the Minister.

We do not propose to circulate lists of questions in advance of the taking of any evidence from witnesses. Given the nature of our work it will be impossible to predict with certainty what questions will or will not arise at any particular interview.

If however the outcome of the first phase of interviews indicates that it is possible that adverse conclusions may be drawn in relation to certain individuals dependant in whole or in part on the testimony of others then it is our intention that a hearing will be held at which such issues can be addressed, and at which persons who may be at risk of an adverse finding will be entitled to attend to hear the evidence, cross-examine the witnesses and give evidence themselves. In the light of these procedures we consider it would be inappropriate and inconsistent with the statutory procedure to provide copies of the draft report to witnesses and invite comments on it.

3. Request for assistance by letter the 8th May, 1998.

The matters the subject matter of this inspection have already been the subject of public discussion and internal and external enquiries. We believe your clients ought to be able to provide this assistance promptly and we look forward to receiving such documentation and information as your client possesses, as soon as possible and in particular without awaiting the outcome of any proceedings which may be initiated to clarify other issues. In this regard we confirm that the documents referred to are documents in your clients own possession.

We understand from the meeting of the 25th May, 1998 that your clients as presently advised do not accept that they are not entitled to refuse to answer questions on the ground of self-incrimination when interviewed by the Inspectors. You might confirm that this remains the case. If so, it is our intention to bring the matter before the Court at the earliest possible opportunity to obtain a definitive ruling and avoid unnecessary delay, expense and confusion. It is not clear if your clients also take issue with any aspect of the procedure we propose to adopt. If they do, we invite you to so inform us immediately in order that this issue could also be determined at the same time and any unnecessary delay avoided.

We await hearing from you.

Yours faithfully,

JOHN BLAYNEY and TOM GRACE
JOINT INSPECTORS
It is clear from this letter that the Inspectors propose a two stage procedure in their examination: the first, an information gathering exercise; the second stage, arising only when the first stage indicates it is possible that adverse conclusions may be drawn in relation to certain individuals dependant in whole or in part on the testimony of others. At the latter stage such individuals at risk will be entitled to attend, hear the evidence, cross-examine the witnesses, and given evidence themselves.
John O’Reilly, the manager of the Limerick branch of National Irish Bank Limited, is the employee of NIB agreed by his fellow and former employees to represent them on the hearing of this Notice of Motion. He has been since 1969 an employee of Northern Bank Limited, now known as National Irish Bank Limited. In an Affidavit sworn by him on the 24th June, 1998, he indicated the concerns of himself and his fellow employees and former employees that if they are to answer questions posed by the Inspectors they should be entitled to avail of the privilege against self-incrimination. He further indicated that this Court should decide not only whether he was compelled to answer such questions but also whether such questions could be used against him in subsequent legal proceedings.

THE RIGHT TO SILENCE AND THE PRIVILEGE AGAINST SELF-INCRIMINATION
The common law privilege against self-incrimination has been part of English law since the constitutional struggles which resulted in the abolition of the Courts of Star Chamber and High Commission in the second half of the 17th century. While the word “privilege” has been associated with the phrase since those early days, it should be said that the privilege against self-incrimination has always encapsulated a right in the individual to refuse to answer a question or produce a document when to do so would in the opinion of a Court tend to expose such an individual to a real risk of criminal prosecution or penalty. The right is one which is vested in witnesses before Courts and in all persons subjected to investigations whether they be formal investigations or not.
There are a number of important values underlying the privilege: it is, first and foremost, concerned with respecting the will of an accused person to remain silent; but it is also a privilege which recognises the right to privacy: as Lord Mustill said in his speech in R. -v- The Director of Serious Fraud Office 1993 AC 1 at page 29, the right is a “reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business”. A further reason justifying the privilege was the prospect of an accused’s guilt being extracted or established solely on his own testimony: such a process was offensive to the common law’s latterday sense of “fair play” and, according to Lord Mustill, it was thus unfair to put a person in a position where he was exposed to punishment whatever he did:

“If he answers he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal”.

6. While respect for fair procedures, the right to privacy and silence all fostered the growth of the privilege and its extension to extra-curial contexts, its origins, as I have indicated, were provided and provoked by a reaction to the abuses perpetrated by the Judges of the Star Chamber in the misuse of interrogation under oath.

In Heaney -v- Ireland 1994 3 IR 593, Costello J. (as he then was) analysed with clarity the “common law right to silence” (as he described it). He said (at pages 603 and 604):-

“1. The right to silence can arise in a variety of different circumstances. The nature and scope of the right and the reasons why it was conferred by law can differ in significant ways and will depend on the circumstances in which it is conferred and exercised
2. The right to silence can properly be referred to as an immunity or privilege against self-incrimination. This immunity has also been termed by the Supreme Court as ‘the right to protection against self-incrimination’.
3. When a person is arrested as a suspect and subsequently charged with an offence two discrete immunities are conferred by the common law. The common law recognises
(a) the immunity against self-incrimination of a suspect and
(b) the immunity against self incrimination of an accused person during his trial.
The suspect’s immunity was developed to avoid the risk of untrue confessions being obtained from a person while in police custody. The law does not prohibit a suspect from confessing to a crime – nor does it prohibit the questioning of a suspect in custody. It provides however, that a suspect should not be required to answer questions on pain of punishment should he not wish to do so; that he is free to remain silent should he so choose and that he should be informed of his right to do so. An accused’s immunity was developed from the objections taken by the common law Courts to the abuses arising from Court procedures involving the judicial interrogation of accused persons. As a result, an accused cannot be required to give evidence on his own behalf and is entitled to remain silent during it and not to be questioned either by the prosecution or the presiding judge.
4. The common law immunity against self-incrimination also exists in favour of a person who is subject to interrogation by a person in authority other than a police officer.”

7. O’Flaherty J., delivering the Judgment of the Supreme Court in Heaney -v- Ireland 1996 I IR 580, noted that an Irish text on the law of evidence (Gilbert’s law of evidence) published in Dublin in 1794 stated:

“Our law differs from the civil law, that it will not force any man to accuse himself and in this we certainly follow the law of nature which commands every man to endeavour his own preservation and therefore pain and force may compel men to confess what is not the truth ….”.

THE RIGHT TO SILENCE, THE PRIVILEGE AGAINST SELF-INCRIMINATION AND THE CONSTITUTION
8. Nowhere in the Constitution is the right to silence or the privilege against self-incrimination expressly recognised. In The People (the Director of Public Prosecutions) -v- Quilligan (No. 3) , Supreme Court, 14th July, 1992, Finlay C.J. expressing the view of the Court said:-

“The Court does not find it necessary therefore to express any view on the question as to whether in what circumstances or subject to what qualifications if any a right of silence or self-incrimination is an unenumerated right pursuant to the Constitution”.

In Heaney, supra , Costello J, held that the immunity (of an accused at his trial) whereby he is not obliged to give evidence or be required to adduce evidence on his own behalf or be questioned against his will was such a basic concept of criminal trials that it was:

“[“So] widely accepted as basic to the rules under which criminal trials are conducted that it should properly be regarded as one of those which comes within the terms of the guarantee of a fair trial contained in Article 38.1”.
(at p. 606)

9. In the Supreme Court, the Court declined to reach a conclusion as to whether Article 38 was applicable or not, but O’Flaherty J., speaking for the Court, said

(at page 589):-

“The right to freedom of expression necessarily implies the right to remain silent. The provisions of statutes of the British Parliament are not necessarily a safe guide to what is constitutionally permissible for the Irish legislature. However it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right – the right to silence”.

10. It is perhaps appropriate at this stage to indicate the facts in issue in Heaney, supra. The Plaintiff was arrested under Part IV of the Offences Against the State Act, 1939. Section 52(1) of the Act empowered a member of An Garda Siochana to demand of a person arrested under Part IV of the Act

“A full account of his movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any Section or Sections of this Act or any scheduled offence”.

Section 52(2) provides that failure to give the account or information demanded shall be an offence carrying a sentence not exceeding six months. The Plaintiffs challenged the constitutionality of Section 52 on the grounds, inter alia, that it infringed the constitutionally guaranteed right to silence. Costello J. held that while the right to silence was protected by Article 38.1, the provisions of Section 52 were an appropriate restriction of that right. The Supreme Court dismissed the appeal of the Plaintiffs against the decision of Costello J. The Supreme Court as I have indicated declined to reach a conclusion as to whether Article 38 was applicable to the case observing that:-

“Nothing touching the due course of a trial arose as a result of the Plaintiffs failure to answer, the Court accepts that on occasion what happens prior to trial may have an adverse impact on the trial”. (at page 584)

11. Accordingly, while the Supreme Court recognised a right to silence as a correlative right to the right of freedom of expression contained in the Constitution, it did not exclude the possibility that compelled evidence of an accused at his trial might have the protection of Article 38.1 of the Constitution. Both Costello J. and the Supreme Court accepted that whatever the nature of the right (i.e. whether founded on Article 38 or

12. Article 40) it was not an absolute right and could, in certain circumstances, be abridged by the legislature where it passed a test of ‘proportionality’. Costello J. expressed the position thus:-

“The objective of the impugned provision must be of sufficient importance to warrant overriding 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:
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations
(b) impair the right as little as possible.
(c) be such that their effects on rights are proportional to the objective” ….
(at page 607)

13. In the Supreme Court, O’Flaherty J. at page 590, adopting the same approach expressed the view that:-

“The Court concludes that there is a proper proportionality in the provision between any infringement of the citizen’s right with the entitlement of the State to protect itself”.

14. A similar approach was adopted by the Supreme Court in Rock -v- Ireland 1998 2 ILRM 35 , when considering the constitutionality of Sections 18 and 19 of the Criminal Justice Act, 1984. Hamilton C.J., speaking for the Court, said at page 49:-

“The question to be considered by this Court is whether the restrictions which the impugned Sections place on the right to silence is any greater than is necessary to enable the State to fulfil its constitutional obligations”.

ABROGATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION AT COMMON LAW
15. Lord Mustill in R. -v- The Director of Serious Fraud Office , 1993 AC 1 observed that “Statutory interference with the right (i.e. the privilege against self-incrimination) is almost as old as the right itself” . He said (at page 38):-

“Since the sixteen century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating materials and in more recent times there have been many other examples in widely separated fields which are probably more numerous than is generally appreciated. These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. A statute occasionally provides in so many terms that the information may be used in evidence; sometimes it may not be used for certain purposes, inferentially permitting its use for others, or it may be expressly prescribed that the evidence is not to be admitted, or again, the statue may be silent”.

16. That there was a lengthy history of statutory interference with the right against self-incrimination was accepted by the Supreme Court in Heaney -v- Ireland , Supra, O’Flaherty J. said at page 587:-

“The Irish legislative experience is somewhat akin to what has been enacted in Britain but with the important qualification touching the primacy of the Constitution which will be considered hereafter a selection but not an exhaustive list of statutes in diverse areas which required disclosure include the customs consolidation Act, 1876, the Road Traffic Act, 1961; the Companies Acts, 1963-1990; the Income Tax Acts and the Finance Acts; the Offences Against the State (Amendment) Act, 1972; the Criminal Law Act, 1976; the Criminal Justice Act, 1984; The Bankruptcy Act, 1988; the Criminal Justice (Forensic Evidence) Act, 1990; the Pensions Act, 1990 and the Social Welfare (Consolidation) Act, 1993”.

17. Having observed on the differences in substance and objectives between the various statutes O’Flaherty J. said (at page 588):

“In the light of the inconsistencies between each it would be idle to engage in summarising or parsing the various statutes any further; however they each serve to illustrate that in certain circumstances a person may be required to disclose information under threat of penal sanction. They invoke a legislative intent to abrogate to various extents, the right to silence, in a myriad of contrasting circumstances”.

RESTRICTION ON THE CONSTITUTIONAL RIGHT TO SILENCE
18. As I have already indicated, the acceptance that the right to silence is an unenumerated constitutional right requires the Court, when considering the constitutional validity of legislation restricting such a right, to assess whether the restriction which the impugned sections place on the right to silence is any greater than is necessary to enable to State to fulfil its constitutional obligations.

SAUNDERS -V- THE UNITED KINGDOM
19. Ernest Saunders was the Chief Executive Officer of Guinness Plc in 1986 when it was competing with Argyll Group Plc to take over a third company, Distillers Company Plc. Allegations of misconduct during the course of the take-over battle led the Secretary of State for Trade and Industry in the United Kingdom to appoint Inspectors under Sections 432 and 442 of the English Companies Act, 1985. Saunders was interviewed on nine separate occasions during the year 1987; transcripts of these interviews were given to the police . Saunders was ultimately charged with offences relating to the illegal share support operation involved in the take-over of the Distillers Company. The transcripts were admitted in evidence in the course of his trial and read to the jury over a period of three days. The Prosecution sought to contradict Mr. Saunders’ oral testimony with the contents of these transcripts. Saunders was convicted on twelve counts in respect of conspiracy, false accounting and theft. He received and overall prison sentence of five years. In its Judgment the European Court of Human Rights (at paragraph 67 of its Judgment) observed on the investigative functions of the Inspectors appointed under the Companies Act, 1985:-

“In this respect the Court recalls in its Judgment in Fayed -v- UK where it held that the functions performed by the Inspectors under Section 432(2) of the Companies Act, 1985 were essentially investigative in nature and that they did not adjudicate either in form or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities – prosecuting regulatory, disciplinary or even legislative. As stated in that case, a requirement that such preliminary investigations should be subject to the guarantees of a judicial procedure as set forth in Article 6.1 would in practice unduly hamper the effect of regulation in the public interest of complex financial and commercial activities.”

20. Article 6.1 of the European Convention on Human Rights in so far as it is relevant states:-

“In the determination of …. any criminal charge against him everyone is entitled to a fair … hearing … by an independent and impartial Tribunal”.

21. The Court, however, held that there had been an infringement of Mr. Saunders’ right not to incriminate himself in that transcripts obtained in the non-judicial investigation were used to incriminate Mr. Saunders in the trial proceedings. The Court expressly rejected the use of such evidence, obtained under compulsion, at the trial of Mr. Saunders.

THE REPRESENTATIVES RESPONDENTS’ SUBMISSIONS
22. The representative Respondents’ submissions on the issue relating to self-incrimination can broadly be summarized as follows:-

(i) This Court when deciding whether a person is obliged to answer questions put to him under Section 10 of the Companies Act, 1990 must also decide whether (if required to answer) such answers or their fruits may be used in initiating a prosecution or at a criminal trial of such a person.
(ii) The privilege against self-incrimination can only be abrogated by statute or rule of law where such a statute or rule of law recognises that compelled answers to questions (and their fruits) are ‘sterile’ and where the purpose of the requirement is proportionate to the infringement of the right to silence.
(iii) There is a constitutional right in a citizen not to be confronted with the dilemma of “confess and be punished or refuse to confess and be punished”.
(iv) There is a constitutional right not to have compelled testimony used against one at one’s trial.
(v) Sections 10 and 18 of the Companies Act, 1990 should be construed together. If Section 18 of the Companies Act, 1990 authorises the admission of compelled answers in criminal proceedings it is unconstitutional. It should be construed as excluding such answers and their ‘fruits’.

PART II OF THE COMPANIES ACT, 1990
Part II of the Companies Act, 1990 deals with investigations and provides for the appointment of Inspectors by the Court for the purposes of carrying out those investigations. Section 8 in particular provides for the appointment of Inspectors on the application of the Minister where the Court is, inter alia, satisfied that there are circumstances suggesting that the affairs of a company are being conducted in an unlawful manner or for a fraudulent or unlawful purpose. Section 10 imposes an obligation on officers of the company and others to produce all books and documents of the company under investigation and to give all assistance to the Inspectors.
Section 10(1) of the Companies Act, 1990 provides:-

“It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of Section 9 to produce to the Inspectors all books and documents of or relating to the company or, as the case may be, the other body corporate which are in their custody or power, to attend before the Inspectors when required so to do and otherwise to give to the Inspectors all assistance in connection with the investigation which they are reasonably able to give.”

Section 10 sub-section 2 provides:-

“If the Inspectors consider that a person other than an Officer or agent of the company or other body corporate is or may be in possession of any information concerning its affairs they may require that person to produce to them any books or documents in his custody or power relating to the company or other body corporate, to attend before them and otherwise to give them all assistance in connection with the investigation to which he is reasonably able to give and it shall be the duty of that person to comply with the requirement.”

Section 10(4) of the Act provides:-

“An Inspector may examine on oath either by word of mouth or on written interrogatories the officers and agents of the company or other body corporate an any such person as is mentioned in sub-section 2 in relation to its affairs an may –
(a) administer an oath accordingly
(b) reduce the answers of such person to writing and require him to sign them.”

Section 10(5) of the Act provides as follows:-

“If any officer or agent of the company or other body corporate or any such person as is mentioned in sub-section 2 refuses to produce to the Inspectors any book or document which it is his duty under this Section so to produce, refuses to attend before the Inspectors when required so to do or refuses to answer any question which is put to him by the Inspectors with respect to the affairs of the company or other body corporate as the case may be, the Inspectors may certify the refusal under their hand to the Court and the Court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence ….”

 

Section 10(6) provides:-

“… make any Order or direction it thinks fit including a direction to the person concerned to attend or re-attend before the Inspector or produce particular books or documents or answer particular questions put to him by the Inspector or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the Inspector”.

Section 18 of the 1990 Act provides as follows:-

“An answer given by a person to a question put to him in exercise of the powers conferred by –
(a) Section 10;
(b) Section 10 as applied by Sections 14 and 17; or
(c) rules made in respect of the winding up of companies whether by the Court or voluntarily under Section 68 of the Courts of Justice Act, 1936 as extended by Section 312 of The Principal Act;
may be used in evidence against him, and a statement required by Section 224 of the Principal Act may be used in evidence against any person making or concurring in making it.”

 

 

Section 22 of the Companies Act, 1990 provides as follows:-

“A document purporting to be a copy of a report of an Inspector appointed under the provisions of this part shall be admissible in any civil proceedings as evidence –
(a) of the facts set out in without further proof unless the contrary is shown, and
(b) of the opinion of the Inspector in relation to any matter contained in the report.”

Finally, section 23 subsection 1 of the Companies Act, 1990 provides as follows:-

“Nothing in this part shall compel the disclosure by any person of any information which he would in the opinion of the Court be entitled to refuse to produce on the grounds of legal professional privilege or authorise the taking of possession of any document containing such information which is in his possession.”

Section 10 obliges directors and others to give all assistance to the Inspector: this duty clearly embraces answering questions put to them by the Inspector. Section 18 provides that such answers may be used against the person. The only entitlement expressly given to a person to refuse to answer a question is where the answer would disclose information the subject of legal professional privilege. I am satisfied that I cannot construe Section 10 of the Act as preserving the privilege against self-incrimination: to do so would require a qualification on the duty imposed by the Act such that the duty to answer applied save where the giving of such answers would tend to incriminate the witness . No such saver appears in Section 10. It seems to me clear that, had the Oireachtas intended to save the privilege, it could easily have done so. I am satisfied therefore that as a matter of statutory interpretation a witness may not refuse to answer questions on the grounds that his answers might tend to incriminate him and that Section 10 has the effect of impliedly abrogating the right against self-incrimination. I am fortified in this view by the large number of instances where our Courts have allowed that statutory provisions have impliedly abrogated the right to self-incrimination. Some of the many statutory provisions are outlined by O’Flaherty J. in Heaney -v- Ireland , Supra, at page 587. Cases which have dealt with such statutory provisions are the People (at the suit of the Attorney General) -v- Gilbert 1973 IR 383 (in relation to Section 107 of the Road Traffic Act, 1961); Heaney -v- Ireland , Supra (in relation to Section 52 of the Offences Against the State Act, 1939 ); the D.P.P. -v- McGowan 1979 IR 45 (in relation to Section 52 of the Offences Against the State Act, 1939). Apart from the foregoing Irish cases in which the Courts were concerned with statutory provisions requiring persons to provide information, there are a number of English cases where the Courts in that jurisdiction have construed a statute as not preserving the privilege. In passing, I should note that I have found no Irish or English authority for the proposition (advanced by the Respondents) that a valid abrogation at common law requires the sterilisation of answers to questions or the fruits of those answers. The most relevant English authority on the question of abrogation of the privilege is the Court of Appeal decision in London United Investments Plc. 1992 2 All England Reports 842 where it was held that a company director or a person possessing relevant information was not entitled to invoke the common law privilege against self-incrimination when questioned by Inspectors appointed by the Secretary of State under Section 432(2) of the Companies Act, 1985 to investigate the affairs of the Company, since it was clear from the scheme and purpose of Part XIV of that Act that Inspectors would in many cases be appointed to investigate where there were circumstances suggesting that there had been fraud in the conduct or the management of the company’s affairs, that Parliament intended that a person possessing relevant information would be under a duty to comply with the requirements to answer questions properly put to him by the Inspectors and that the Inspectors report might lead the Secretary of State to petition for the winding up of the company or to bring civil proceedings in the company’s name in the public interest. In those circumstances the Court held that the privilege against self-incrimination had been impliedly removed by Part XIV of the 1985 Act.
23. Dillon L.J. said at page 853:-

“On these provisions I reach without hesitation the conclusion that as:

(i) Inspectors will in very many cases have been appointed where there are circumstances suggesting there has been a fraud in the conduct of management of a company’s affairs and
(ii) persons questioned are bound to answer the Inspectors’ questions and
(iii) the Inspector’s report may lead the Secretary of State to petition for the winding up of the company or to bring civil proceedings in the company’s name and the public interest, the privilege against self-incrimination is impliedly excluded and is not available to the person being questioned by the Inspectors”.

24. While in my view the words of Section 10, and the other Sections of Part II of the Companies Act, 1990, make it clear that the legislature intended to abrogate the privilege against self-incrimination such as might arise during the course of an Inspector’s investigation, and, while both Irish and English authority suggests that the privilege can be abrogated by statute nonetheless the Respondents submit that I should go further and examine the legislative history of the Companies Act, 1990 with a view to construing Section 10 of the 1990 Act. In particular, the Respondents suggest that the Court should use the Dail debates as an aid in the construction of Section 10(5) of the Act. In The People (the Director of Public Prosecutions) -v- McDonagh 1996 1 IR 565, Costello P., sitting as a Judge of the Supreme Court expressed the view (with which the other members of the Court agreed) at page 570 that:-

“It seems to me that the Court should have regard to any aspect of the enactment’s legislative history which may be of assistance”.

25. Dail debates are, of course, a record of part of the legislative history of an Act of the Oireachtas, and it seems clear that I can look at these debates in construing Section 10 of the 1990 Act. The Respondents point to the Dail debates for the 14th December, 1988; there the Minister for State at the Department of Industry and Commerce said at

Column 1514:

“My main problem with Deputy Cullen’s amendment is that it is in direct conflict with Section 18 which provides that an answer given by a person to a question put to him by an Inspector may be used in evidence against him. The Section also appears in corresponding UK legislation and is important to ensure effective investigation procedures. Without it I do not think we could have effective investigation procedures. I understand Deputy Bruton’s reservations about this procedure but, now that we have adopted the notion of having it, it is important that we make it effective.

On the other hand the idea behind the amendment may be covered in Section 10(5) which provides that, if a person refuses to answer an Inspector’s question, the Inspector may refer the matter to the Court. Where this happens the Court can enquire into the case and after hearing evidence for the defence can punish the person concerned as if he had been guilty of contempt of Court. If a person persisted in claiming that his refusal to answer a question was based on a fear that he might incriminate himself the Court would be in a fairly good position to adjudicate on any such claim under Section 10(5)”.

26. This view as expressed by the Minister, it is urged, assists the Court in concluding that Section 10, far from abrogating the privilege against self-incrimination, was providing a forum for its existence. While of course respecting the views expressed by the Minister it does not appear to me, on a perusal of the debate, that his contribution to that debate had the effect of indicating a legislative intention to preserve the privilege against self-incrimination. His contribution represented Dáil material more evidencing his own personal view of the effect of Section 10 than material disclosing the legislative intention behind the section. Having regard to the unambiguous language used in Part II of the Companies Act, 1990 (which clearly indicates, in my view, a legislative intention to abrogate the privilege against self-incrimination) I do not feel it would be safe to rely upon what was said by the Minister at the Committee stage of the Companies Bill, 1987 as a guide to the legislative intention behind Part II of the Act.

27. Accordingly, a consideration of the scheme and purpose of Part II of the 1990 Companies Act, a consideration of its legislative history and a consideration of the various Irish and English authorities on the question of the statutory abrogation of the privilege against self-incrimination lead me to the firm conclusion that the statute had the effect of abrogating the privilege. It remains, of course, to be considered whether such an abrogation was constitutionally permissible.

THE CONSTITUTIONAL QUESTION
28. As we have seen, the Supreme Court in Heaney, supra , recognised the constitutional status of the right to silence as a correlative right to the freedom of expression conferred by Article 40 of the Constitution: it also accepted that:-

“Just as the freedom of expression clause in the Constitution is itself qualified so must the entitlement to remain silent be qualified” (at page 585) . ….. [H]owever it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right the right to silence”
(at page 589 per O’Flaherty J. in Heaney supra )

29. The approach of the Court in determining whether a legislative encroachment upon the right to silence is constitutionally permissible is one of applying as I have already indicated a test of proportionality and asking whether the restriction which the impugned Sections place on the right to silence is any greater than necessary to enable the State to fulfil its constitutional obligations.

30. Part II of the 1990 Act as stated provides a mechanism for the investigation of companies by Inspectors. The scheme of the Act allows the appointment of Inspectors by the Court on the application of the Minister where there are circumstances which suggest to the Court that the company has been operated in an unlawful or fraudulent manner. The Inspectors are given investigative powers including a power to compel answers from officers and other persons. It is clearly envisaged by the Act that prosecutions can follow. Speaking of the statutory policy behind the corresponding provisions of the English Act of 1985

Scott J. said in London United Investments Plc. 1992 BCLC at page 113/114 :-

“It is a regrettable feature of commercial and corporate fraud in these modern times that facilities are available for sophisticated fraudsters to prevent the trail leading to the unravelling of the fraud from being followed up. The secrecy provisions of some countries corporate and banking laws operate to this effect. Nominee shareholdings in offshore companies do so as well. There is often no alternative if frauds and dishonest stratagems are to be laid bare but to demand answers from those who are in a position to give them. This, in my opinion, is at least part of the statutory policy behind Part XIV of the Companies Act, 1985.”

31. It is, of course, a legitimate objective of the State, and entirely in the public interest, to lay bare frauds and dishonest stratagems, and where the only means of effectively achieving such an objective is to provide an investigative procedure without a right to silence (as in the instant case) then one can properly assert that the restrictions imposed by Section 10 on the right to silence are no greater than is necessary to enable the State to fulfil its constitutional obligations of ensuring equality before the law and of protecting the property rights of every citizen. Because the abrogation (by Section 10 of the 1990 Act) of the right to silence is no greater than is necessary to enable the State to discharge such constitutional duties, Section 10, in my view, is not invalid having regard to the provisions of the Constitution.

32. The Respondents assert that there is a constitutional right not to have compelled testimony used against one at one’s trial and that this Court should decide, at this stage, whether answers compelled under Section 10, or their fruits can be used in evidence. It is argued that the right asserted is one which flows from Article 38.1, namely, the right to be tried in due course of law. I do not believe that in determining that Section 10 abrogates the right to silence, I should have regard to the use to which such answers are put. The statutory obligation to answer self-incriminatory questions is not inconsistent with the right to trial in due course of law. When asked questions by an Inspector, the witness does not stand as an accused person. If he becomes an accused person, having answered incriminating questions, his right to a fair trial may not even at that stage be infringed: it depends on whether the compelled testimony is tendered against him at his trial; if it is, he may, of course, object to it and it would be a matter for the trial judge to determine its admissibility. It is at that stage, and no sooner, that an adjudication on the admissibility of answers (or the fruits of such answers) is to be made. I therefore see no necessary connection between the occasion of questioning by an Inspector and the occasion, at trial, of tendering compelled testimony. No right to a fair trial is infringed at the questioning stage; the use to which the answers are put is a separate matter and where such use threatens to, or does, infringe a constitutional right of the witness that right can be then asserted and vindicated. That it is appropriate to look at the Inspectors’ investigative and questioning role separately from any subsequent trial finds support in the decision already referred to of Saunders -v- the United Kingdom , Supra, where (in relation to the Companies Act, 1985 in the United Kingdom) the European Court of Human Rights said of the equivalent of Section 10:-

“A requirement that such preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6.1 would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities”.

33. Accordingly the Court allowed that the privilege against self-incrimination was not applicable to such preparatory investigations. However, the Court found that the use of such compelled testimony at the trial was indeed a breach of Article 6.1 of the Convention. Equally, in Heaney -v- Ireland, supra , the Supreme Court upheld the constitutionality of Section 52(1) of the Offences Against the State Act, 1939 and declined to consider the moot point of whether information lawfully obtained pursuant to Section 52 could be used in evidence. The position is no different here: whether or not there is a constitutional right not to have compelled testimony, or its fruits, used against an accused is an issue which I do not now have to decide because it has not as yet arisen. That is a matter which falls to be decided on the occasion when such evidence is tendered. Accordingly I do not have to consider the implications of the wording of Section 18 of the 1990 Companies Act.

34. I propose therefore to answer the first question which is addressed to the Court in the Motion Paper as follows, namely, that persons (whether natural or legal) from whom information documents or evidence are sought by the Inspectors in the course of their investigation under the Companies Act, 1990 are not entitled to refuse to answer questions put by the Inspectors or to refuse to provide documents to the Inspectors on the grounds that the answers or documents may tend to incriminate him, her or it.

PROCEDURES PROPOSED BY INSPECTORS
35. In a letter dated the 4th June, 1998 addressed to the solicitors for the representative Respondent (Messrs. O’Meara Geraghty McCourt) the Inspectors outlined the procedures they propose to follow. It was a letter in almost identical terms to the letter they had sent to Messrs. Mason Hayes & Curran which I have quoted in full at pages 4 and 5 of this judgment.

36. Objection is taken to the procedure (outlined in the letter) by the representative Respondent. While the Applicant suggested the first stage of the Inspectors process is entirely investigative, the representative Respondent disagrees. He says it is accusatory. He points to the Affidavit grounding the application to appoint the Inspectors. It is, he says, replete with accusations of criminal conduct: there are allegations, he says from anonymous sources of crimes committed at particular National Irish Bank branches including Carrick-on-Shannon at which he, Mr. O’Reilly, was a manager for a particular period of time. He says that he now stands in the public domain accused of criminality and is therefore in no different a position to the position of Padraig Haughey himself when he stood before the public accounts committee of Dail Eireann accused of criminal conduct. It is submitted on behalf of Mr. O’Reilly that he is entitled to the full panoply of “Haughey” rights: a copy of the evidence reflecting on his good name, the opportunity to cross-examine his accusers, the opportunity to give rebutting evidence and the entitlement to address the Inspectors. He contends that having regard to such rights he is entitled to all and any material in the hands of the Inspectors which reflect on his good name and reputation and is further entitled to cross-examine his accusers before he himself is sworn and examined. I do not believe this submission to be well founded. The rights identified by the Supreme Court in the case of Re Haughey 1971 IR 217 were rights which the Court believed should be afforded to a person who had been accused of conduct reflecting on his character and good name and where the accusations made were upon the hearsay evidence of a witness before the public accounts committee of Dail Eireann. While it is undoubtedly the case that allegations of the commission of criminal offences have been made in the media against National Irish Bank and its officers, the case differs from the Haughey case where the accusations were made by evidence under oath from one Superintendent Fleming before the Public Accounts Committee. It was that evidence that the Supreme Court held Mr. Haughey was entitled to have tested; in the present case, there is no evidence; there is documentation in the hands of Inspectors but that documentation has not become and is not “evidence” in the sense understood by the Supreme Court in In Re Haughey . Accordingly, the Inspectors cannot be compelled at this point in time to produce any documents to the representative Respondents and, he in turn, is not entitled to any documents or to the facility of cross-examining any person at this intitial stage in the process.

37. I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the Inspectors’ work. The procedures identified by the Inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in the Haughey case. I therefore determine that the procedures outlined by the Inspectors in their letters dated the 4th June, 1998 (contained within Exhibit C and D to the Affidavit of John Blayney and Tom Grace sworn on the

11th June, 1998) are consistent with the requirements of natural and constitutional justice.

 

Dunnes Stores (Ireland) Co v Ryan

unreported, High Court, April 5, 2002
Judgment of Mr. Justice Kearns delivered the 5th day of June 2002.
1. This case is the constitutional leg of the multiple challenge launched by the Applicants against the decision of the second named Respondent whereby the first named Respondent was appointed as her authorised officer pursuant to Section 19 of the Companies Acts, 1963 – 1990 to examine the books and records of Dunnes Stores Ireland Company and Dunnes Stores (Ilac Centre) Limited.
2. By Order dated the 21st day of January, 1999, Budd J. gave leave to the Applicants inter alia to seek:-
(a) A Declaration that the provisions of Section 19 (5) of the Companies Act, 1990 are in breach of the fundamental rights of the Applicants herein and are invalid and have no effect having regard to Articles 38.1 and 40.1 of Bunreacht na hEireann.
(b) Further or in the alternative a Declaration that the provisions of Section 19 (6) of the Companies Act, 1990 are in breach of the fundamental rights of the Applicants herein and are invalid and of no effect having regard to Articles 38.1 and 40.1 of Bunreacht na hEireann.
(c) A Declaration that Section 19 (6) of the said Act does not permit the use of statements made by a person in evidence in any criminal prosecution against that person whether or in the alternative that Section 19 (4) thereof does not abrogate any privilege that any person would otherwise possess.
3. The grounds upon which relief was sought were stated as follows:-
(d) The provisions of the Companies Act, 1990 which are impugned are contrary to Bunreacht na hEireann and are in breach of the rights of the Applicants in that, inter alia, they:-
(i) fail to have any or any due regard to the Applicants’ rights to confidentiality and/or privacy,
(ii) fail to have due regard to the Applicants’ privilege against self incrimination,
(iii) fail to protect and vindicate the Applicants’ right to fair procedures, natural and constitutional justice and equality before the law, and
(iv) constitute an unwarranted and unjustified interference with the property rights of the Applicants.”
BACKGROUND
4. On the 11th of September, 1997 the second named Respondent (hereafter “the Minister”) wrote to the 3rd named Applicant (hereafter “Mrs Heffernan”) stating:-
“The report of the Tribunal of Inquiry (Dunnes Payments) has disclosed a number of possible breaches of the Companies Acts, 1963 – 1990 as I have responsibility for these Acts, I have decided that my department should proceed to make inquiries of certain companies to clarify what breaches did in fact take place.”
5. The report referred to was that of a Tribunal established under the Tribunals of Inquiries Acts, 1921 – 1998, of which the sole member was Mr. Justice McCracken. The remit of the Tribunal was to inquire in to certain payments alleged to have been made to Mr. Charles Haughey T.D. and Mr. Michael Lowry T.D. It is not in dispute that payments had been made by the first and second applicants (hereafter “the Companies”) to the two persons concerned and to companies with which they, or members of their family were associated. This was found to be a fact by the Tribunal in its report and it is also not in dispute that the payments were made at a time when the Companies were effectively under the stewardship of Mr. Ben Dunne. The payments came to light as result of proceedings which were instituted by other shareholders and directors of the companies, including Mrs. Heffernan against Mr. Ben Dunne. These proceedings were ultimately settled between the family members. Mrs. Heffernan and her brother, Mr. Frank Dunne had also appointed the firm of Accountants, Price Waterhouse, to carry out an independent inquiry into the manner in which the affairs of the company had been conducted under Mr. Ben Dunne’s stewardship. That report was made available both to his Honour Judge Buchanan, who at the request of the Government had carried out an initial inquiry into the question of the irregular payments, and to the Tribunal presided over by Mr. Justice McCracken.
6. Following receipt of the letter of 11th September from the Minister, Mrs. Heffernan wrote to her expressing her concern that the Company should be subjected to a further inquiry which, she claimed, was unnecessary and would result in further damaging publicity to the companies. Further correspondence followed which culminated in a letter dated 22nd July, 1998 in which the Minister wrote as follows:-
“I now write to indicate that I have decided to appoint an authorised officer to examine the books and documents of (the companies) and to provide such explanations as are appropriate. The legal basis for the appointment to Dunnes Stores Company is paragraphs (a), (b)(ii), (b)(iii), (d), (f) of section 19 (2) of the Companies Act, 1990, while that to the appointment of Dunnes Stores (Ilac Centre) Limited is paragraphs (a), (b) (ii), (f) of Section 19 (2) of the 1990 Act. You may know that Section 21 of the 1990 Act contains very strict limitations on the publication or disclosure of any information obtained by me on foot of a Section 19 examination of books and documents.”
7. The letter went on to state that the authorised officer was Mr. George Maloney, F.C.C.A., who for reasons of no relevance to the present proceedings, was later replaced by Mr. Gerard Ryan, the first named Respondent.
8. On the 4th of August, 1998, the companies were given leave by the High Court to apply by way of Judicial Review for Orders of Certiorari quashing the decisions of the Minister to appoint the authorised officer pursuant to Section 19 of the 1990 Act on two principle grounds, namely:-
(a) The failure of the Minster to give any or any adequate reasons for the purported appointment of the authorised officer,
(b) An alleged conflict of interest which in any event vitiated the appointment of Mr. Maloney as the authorised officer.
9. Laffoy J. in a judgment, reported sub nom Dunnes Stores Ireland Company and Others v. Maloney and Another (1999) 3 I.R. 543 granted the relief sought on the ground that the companies were entitled to be informed of the reasons which formed the basis of the Minister’s decision to appoint an authorised officer. She also found that the extent of the demand for documents made by the authorised officer was excessive and unreasonable.
10. Thereafter on the 27th of November, 1998, Mr. Paul Appleby, Principal of the Company Law Administration Section of the Ministers Department swore an Affidavit, the schedule to which set out the purported reasons for the appointment of the authorised officer.
11. The present proceedings were then instituted seeking inter alia relief by way of Certiorari quashing the decision of the Minister to appoint the authorised officer and further claiming that the provisions of Section 19 (5) and (6) of the 1990 Act were invalid on constitutional grounds set out above. The hearing of the Motion having come on before the High Court, the claim on behalf of the Applicants that the appointment by the Minister of the first named Respondent as an authorised officer was invalid was rejected. It was concluded, however, that the first named Respondent had acted unreasonably in requiring the books and records specified by him and, since that relief had not been claimed on behalf of the applicants, they were given liberty to amend their statement of grounds so as to include that claim. The High Court Judge made no finding as to the constitutionality of the 1990 Act and an appeal was brought to the Supreme Court. The Supreme Court set aside the Order of the High Court in its entirety on the 8th of February, 2000 and the proceedings were remitted to the High Court for a determination of the issues in respect of which leave to apply for Judicial Review had been granted including, if necessary the constitutional issue.
12. That hearing came on before Butler J. in the High Court who on the 29th of July, 2000 determined that the Applicants were entitled to an Order of Certiorari in respect of the decision of the Minister purporting to appoint an authorised officer to examine the books and records of the companies and the decision of the first named Respondent by which the first named Respondent purported to require from Mrs. Heffernan the books and records set out in a letter dated the 18th of January, 1999.
13. Butler J. held that the essential issue was as to whether the reasons ultimately furnished by the Minister sustained her decision to appoint an authorised officer. He found there was no evidence that it was “necessary” to examine the books and documents of the company in order to determine whether an inspector should be appointed to conduct an investigation of Dunnes Stores Ireland Company under the Companies Acts. He further found that the reason given by the Minister that it was necessary to examine the books and documents of the same company in order to determine whether payments by or on behalf of the company were made for the purpose of further defrauding the Revenue Commissioners or the Creditors of any other person was unsustainable. In view of the findings and conclusions arrived at, Butler J. was of the view that he should not go on to consider whether the relevant provisions of the 1990 Act were invalid having regard to the provisions of the Constitution.
14. In a Judgment delivered on the 1st day of February, 2002, the Supreme Court held that the present inquiry was justified in terms of Section 19 where inter alia there were circumstances suggesting that the affairs of the body had been conducted in a manner which was unfairly prejudicial to some part of its members. It further held that the range of documents sought was not unduly extensive, having regard to the scale of the misuse of the companies assets which had been identified.
15. The documents sought pursuant to Section 19 are described in a letter dated 18th January, 1999 from Mr. Gerald Ryan to Mrs. Heffernan as follows:-
“(ii) All documentation relating to all payments from the period of incorporation to 31st December, 1994 in excess of £5,000 made by or charged to Dunnes Stores Ireland Company which had been brought to the attention of the Directors or Auditors of the Company and for which value was not received by the Company
(ii) All documentation and correspondence relating to all issues which were relevant to the delay, until 1988, by the auditors in signing the auditors’ reports of Dunnes Stores Ireland Company for the years 1990/1994
(iii) All documentation relating to all transfers of monies from Dunnes Stores Ireland Company to the bank account, referred to in the report of the Tribunal of Inquiry (Dunnes Payments) as the ‘Marino account’ together with all documentation relating to rebates due to Dunnes Stores Ireland Company which monies were directed by Mr. Bernard Dunne into the ‘Marino account’ up to the end of 1994 and
(iv) Copies of the audited accounts of Dunnes Stores Ireland Company for all the years since its incorporation.”
16. The Supreme Court held that the Minister had been entitled to give the direction under Section 19 and that her decision, so far as Section 19(2)(a) was concerned, was an exercise of her powers for the purposes contemplated by the Companies Acts and within the terms of the section.
17. Section 19 of the Companies Act, 1990 authorises the Minister in the circumstances outlined in subsection (2) to give directions to any company
“Requiring the body, at such time and place as may be specified in the directions, to produce such books or documents as may be so specified, or may at any time, if he thinks there is good reason so to do, authorise any officer of his, on producing (if required so to do) evidence of his authority, to require any such body as aforesaid to produce to him forthwith any books or documents which the officer may specify.”
18. Section 19(4) provides:-
“Any power conferred by or by virtue of this section to require a body or other person to produce books or documents shall include power
(a) if the books or documents are produced
(i) to take copies of them or extracts from them;
(ii) to require that person, or any other person who is a present or past officer of, or is or was at any time employed by, the body in question, to provide an explanation of any of them;
(b) if the books or documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.”
19. This then brings us to the two subsections which are the subject of the constitutional challenge in the present application and which provide as follows:-
“(5) If a requirement to produce books or documents or provide an explanation or make a statement which is imposed by virtue of this section is not complied with, the body or other person on whom the requirement was so imposed shall be guilty of an offence; but where a person is charged with an offence under this subsection in respect of a requirement to produce any books or documents, it shall be a defence to prove that they were not in his possession or under his control and that it was not reasonably practical for him to comply with the requirement.
A statement made by a person in compliance with a requirement imposed by virtue of this section may be used in evidence against him.”
20. In the instant case the proposed examination of books and documents by the authorised officer is one to be undertaken with a view to determining whether an inspector should be appointed to conduct an investigation of the companies under the Companies Acts.
21. There are significant differences between the position of an authorised officer and an inspector under the 1990 Act. Firstly, the appointment of an inspector is made by the Court on the application of the Minister. Secondly, Section 10 of the Act imposes a duty on all officers and agents of the company whose affairs are being investigated not merely to produce to the inspectors all books and documents of or relating to the company, but also to attend before the inspector when required to do so and otherwise “to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give”.
22. An inspector may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of the company and reduce the answers of any such person to writing and require him to sign them.
23. Section 10(5) provides:-
“If any officer or agent of the company or other body corporate or any such person as is mentioned in subsection (2) refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required to do so or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence and the Court may … make any Order or direction if thinks fit, including a direction to the person concerned to attend or re attend before the inspector or produce particular books or documents or answer particular questions put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector”.
24. The above quotation represents the revised form of Section 10(5) and (6) shorn of those portions found to be unconstitutional by the Supreme Court in Desmond v. Glackin and Others (1993) I.R. p.67.
25. I have set out the relevant provisions of Section 10 as regards the position of inspectors, because the contrasting positions of persons interviewed by authorised officers and inspectors are of some considerable significance in the context of the “right to silence” which is at the heart of this case.
26. While it is not directly relevant to the debate which took place in this case, it is perhaps pertinent and appropriate to note and recite that Section 19 of the Companies Act, 1990 was repealed and substituted by Section 29 of the Company Law Enforcement Act, 2001.
27. Section 29(7) provides:-
“A statement made or an explanation provided by an individual in compliance with a requirement imposed by virtue of this Section may be used in evidence against him in any proceedings whatsoever (save proceedings for an offence) other than an offence under subsection (6) or (8)).”
28. Thus Section 19(6) with which the Court is concerned in the instant case has been replaced by a statutory provision which effectively “immunises” answers given to an authorised officer from use in any subsequent criminal proceedings (other than in respect of a refusal to answer or in the case of a false or misleading answer (Company Law Enforcement Act, 2001, S. 29(6) and (8)).
SUBMISSIONS OF THE PARTIES
29. On behalf of the Applicants it is submitted that various constitutional rights of the applicants are trenched upon if the companies or their officers are obliged to provide an explanation or make a statement under Section 19(5). Mr. Gleeson for the Applicants invoked the right to remain silent, as a right corollary to the constitutional guarantee of freedom of expression conferred by Article 40.6.1 (1) of the Constitution, as identified by the Supreme Court in Heaney v. Ireland and the Attorney General (1996) 1 I.R. p.580. Additionally, he submitted, the obligation to provide information or a statement which might incriminate the maker of same in later criminal proceedings violated Article 38.1 of the Constitution which provides that “no person shall be tried on criminal charge save in due course of law”. He further submitted that the considerable cost and expense to be incurred by the Applicants in complying with the extensive requirements of the authorised officer violated the Applicants property rights guaranteed by Article 40 of the Constitution.
30. While the right to silence and the privilege against self incrimination are often bracketed together, it was submitted that the right to remain silent is akin to a right to privacy. Mr. Gleeson referred to the comment of Mustill J. in his speech in R. v. Director of Serious Fraud Officer Ex p. Smith (1993) A.C. 1 at p. 31, when he said the right is a “reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business.”
31. In Heaney, the Supreme Court preferred to base its judgment on the rights conferred by Article 40 of the Constitution (rather than Article 38) whereunder the right to silence may be seen as an aspect of the freedom of expression guarantee conferred by that article. Be it a right under Article 40 or Article 38, Mr. Gleeson accepted that the right was not an absolute one. He adopted as being an appropriate statement of the extent of permissible restriction on the right the following passage from the Judgment of Costello J. in Heaney v. Ireland (1994) 3 I.R. at p. 607 as follows:-
“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 (see, for example Times Newspapers Limited v. United Kingdom (1979) 2 EH RR 245) 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 overriding 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:
(a) Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
(b) Impair the right as little as possible, and
(c) Be such that their effects on rights are proportional to the objective.”
32. It was not suggested in the instant case that the rationality test had not been met. However, Section 19(5) and (6) did, it was submitted, go further than the “minimum invasion” test permitted. Compliance with the test could have been achieved by:
(a) Incorporating a similar certification procedure to Section 10 of the 1990 Act whereby a person who failed to respond to a question could be brought before the Court, and
(b) By inserting in Section 19 an explicit immunity from the subsequent use of any information given or statement made in any later criminal proceedings.
33. Counsel referred to a number of statutes containing immunity provisions in analogous situations, including the Bankruptcy Act, 1998 (Section 21(4)), the Comptroller and Auditor General and Committees of the Houses of Oireachtas (Special Provisions) Act, 1998 (Section 5), the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 (Section 12) and now the Company Law Enforcement Act, 2001 (Section 29). All of these legislative measures showed, it was submitted, that there was available a way of trenching less on the Applicants’ rights.
34. He further submitted that the Court should regard as persuasive the decision of the European Court of Human Rights in the case of Quinn v. Ireland, wherein the Court gave its final Judgment on the 21st day of March, 2001.
35. This was a case brought to challenge Section 52 of The Offences Against The State Act, 1939 whereunder a suspected person arrested and detained under Section 30 of the Act could be asked to provide a full account of his movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by other persons of any offence under the Act. The said section provided for the creation of an offence for non-compliance and upon conviction provided for imprisonment for a term not exceeding six months. The Act was silent on the question whether or not replies could be later used in evidence. While noting the uncertainty about the domestic legal position in Ireland in July, 1996 on the question of the direct or indirect use in later proceedings of statements made pursuant to Section 52, the Court while not adjudicating on that issue, nonetheless found that the “degree of compulsion” imposed on the applicant by the application of Section 52 with a view to compelling him to provide information relating to charges against him under the Act, in effect “destroyed the very essence of his privilege against self incrimination and his right to remain silent.” …At p. 16 of the Judgment). In other words, it failed the proportionality test. Mr. Gleeson submitted that, given the imminence of Irish legislation adopting the Convention, the decision should be seen at least as strong persuasive authority in his favour.
36. Reliance was also placed on the decision of the Constitutional Court of South Africa in Ferreira v. Levin and Others 1996 (1) BCLR 1 (CC) where that Court had to consider the constitutionality of Section 417(2)(b) of the Companies Act, 1973 which provides that any person summoned for an examination into the affairs of the company “may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to such question may thereafter be used in evidence against him.” Having listed all sorts of reasons why it might be necessary to compel persons to answer all relevant questions put to them (even when the answers might incriminate them), the Court nonetheless asked whether the section was necessary in the sense that no other method existed which could achieve the desired object, but which was less intrusive of the examinee’s right against self incrimination. The Court concluded that the objective could be fully achieved if an immunity was conferred on an examinee in respect of the use of his evidence at any subsequent criminal trial. This section was accordingly declared invalid to the extent of such inconsistency. The Constitutional Court affirmed this decision in Parbhoo and Others v. Getz NO and Another 1997 (10) BCLR 1337 (CC).
37. Finally, in relation to the issue of property rights, it was submitted that to comply with the requirements of the authorised officer, inquiries of an extensive nature would require to be undertaken at the companies expense. Given that under Section 10 of the Companies Act, 1990, the Court could be involved in determining questions of compliance or non-compliance, it followed that situations could arise whereby a company investigated under Section 10 could apply to the Court for costs. Absent any Court involvement in Section 19 inquiries no such remedy existed for the protection of a company whose affairs were under investigation under that section. In this regard the Applicants relied on Inspector of Taxes v. Arida Limited (1996) 1 I.L.R.M. p. 74 in which a case was stated for the determination of the High Court as to whether a Judge of the Circuit Court sitting to hear an appeal from the Appeal Commissioners pursuant to Section 429 of the Income Tax Act, 1967 had any jurisdiction to award costs there being no explicit provision in the Act so providing. The question of law was answered in the affirmative, and confirmed by the Supreme Court. Accordingly, it was submitted, that even without any specific provision in Section 10 enabling the Court to award costs, it followed from the cited authority that such a jurisdiction did exist when the Court was involved in the statutory process.
38. In reply, Mr. Collins argued that in considering the ‘right to silence’ one must commence by examining which particular constitutional right is invoked or alleged to have been breached. For example, there was a difference between a right of silence and right against self incrimination, just as there was a distinction between a suspect who invokes the right of silence and the right of an accused in the course of a trial to invoke such rights, a distinction which had been noted by Costello J. in Heaney v. Ireland and The Attorney General .
39. In essence, the present case was, by analogy, governed by the decision of the Supreme Court in National Irish Bank (1) (1999) 3 IR 145. In that case, Section 10 of the Companies Act, 1990 had passed the proportionality test, the Supreme Court holding that if there were grounds for believing there was malpractice or illegality in the operation of the banking system, it was essential, in the public interest, that the public authorities had the power to investigate the matter fully. The Supreme Court had further held that the powers given to inspectors under Section 10 of the Act of 1990 were no greater than those which the public interest required. The Supreme Court had found that interviewees were not entitled to refuse to answer questions properly posed to them by the inspectors.
40. In terms of the objective sought to be achieved by the statutory provision under challenge there was no true basis for comparison between Section 19 and Section 52 of The Offences Against The State Act, 1939. The objective under companies legislation was to supervise companies who enjoy the privileges of incorporation. By electing for incorporation, obligations were assumed, including obligations to file accounts, list shareholdings, and directorships and to voluntarily submit to the corporate regime laid down in the companies legislation. This case was also one under Part II of the Companies Act, 1990. There was a rational connection between the means chosen and the objective sought to be attained. The Supreme Court in Heaney had not specifically adopted the four criteria set out by Costello J. in the High Court in that case. Proportionality was the critical consideration governing the Supreme Courts conclusion.
41. Insofar as “immunisation” is concerned, answers given which are involuntary, cannot be later used in any subsequent criminal proceedings. There had been no statutory exclusion from future use in criminal proceedings of information furnished under either Section 10 or Section 19. However, the Supreme Court had declared Section 10 to be constitutional and, by a parity of reasoning, precisely the same considerations applied to Section 19: that is to say, existing law in any event rules out the use of involuntary statements in later criminal proceedings.
42. To say that there were problems revolving around the question of “involuntariness” was somewhat unreal, because even the act of warning a suspect of a penal sanction rendered answers inadmissible. As Pringle J. had pointed out in A.G. v. Gilbert (1973) I.R. 383 (at p. 387):-
“As in the present case the statement of request was made after the Sergeant had stated that a failure or refusal to answer would constitute an offence involving serious penalties, in our opinion it could not be said in any sense to be a voluntary statement and so the trial judge should not have admitted it in evidence …”
43. The decision of the European Court of Human Rights in Quinn v. Ireland should be seen as having limited relevance. That case was concerned with the state of Irish Law as of 1996, prior to the decision of the Supreme Court in the case of National Irish Bank (1). It was concerned with the case of a “suspect” who had been arrested and detained in relation to a criminal offence under The Offences Against The State Act, 1939. The European Court had been careful to exclude from the ambit of its judgment material which had an existence independent of the will of the suspect such as documents or blood samples. (Par 40 of Judgment). The Court had expressly resiled from adjudicating on the issue of the later use of admissions. The essential issue in the case was the possible overthrow of a detainees will in particular circumstances which were radically different from those in the present case.
44. Insofar as any suggested breach of the Applicants’ property rights under the Constitution was concerned, the simple response was that an inquiry conducted by an authorised officer is an inquiry into the affairs of companies and is a consequence of the privilege of incorporation to which the company had submitted. Once an inquiry was initiated for bona fides reasons, there could be no objection, notwithstanding inconvenience and expense attendant upon such compliance.
45. The present inquiry had been brought about largely by the acts of the Applicant companies themselves, who, in the words of Keane C.J. in the judgment already referred to, had made various payments which “could not be regarded as having any conceivable legal justification” (p. 33)
46. There are many examples, Mr. Collins submitted, of persons, corporate or otherwise, who are subject to some form of state inquiry at cost to themselves where there is no mechanism to recover such costs. Examples include:-
(a) Revenue audits,
Inspections by health and safety authorities,
Audits of Solicitors practices by the Law Society,
Requests to and into private companies under the Date Protection Act.
47. The Applicants had sought to argue that in some way there was a facility to apply for costs in the context of a Section 10 inspection, but not in a Section 19 inquiry. The argument was premised on the proposition that if one engineers a refusal to comply with some request of the inspector, then because the inspector will certify the refusal and bring the matter before the Court under Section 10(5), the Court could then use this occasion to give the company the costs of complying with the investigation. However, against whom could any such Order be made?
48. Mr. Collins submitted there was no support for such an interpretation in the wording of the Act in any shape or form. Inspector of Taxes v. Arida Limited was an authority only for the proposition that when a Judge of the Circuit Court sits to hear an appeal from the Appeals Commissioners and is given by statute the same powers and authorities as the Appeals Commissioners, the rules of the Circuit Court continue to apply to such an appeal because there was no indication in the legislation that the rules of the Circuit Court were to be disapplied. The substantive argument in that case concerned the power of the Judge to award costs and since the Circuit Court rules applied, it was held that he did have the power to award costs. There was no credible analogy between that case and the proposition that when an inspector certifies a refusal to comply with the request for information of the Court, the Court thereby becomes invested with the power not just to award the costs of some set of legal proceedings but the costs of the investigation as a whole against some unspecified and faultless party.
49. In reply, Mr. Nesbitt on behalf of the Applicants argued there was a clear distinction between the decision of N.I.B. (1) and the instant case, not least because the consequence for a person for non-compliance under Section 10(5) is, at worst, to be forced to answer only at a stage where he has been brought before a Court which must then investigate any certified refusal and which may or may not do anything after a full consideration of all material matters and a full hearing. Section 19(5) on the other hand operates quite differently. It deems the refusal to explain or answer an offence per se, being one which attracts a fine and perhaps imprisonment. In a Section 19(5) deemed offence, the party is convicted by his refusal.
50. Under Section 10(5) a person being questioned is afforded statutory protection from being summarily compelled to answer; he may be found to have reasonably refused. In this way the impairment of the right to silence/privilege against self incrimination is reduced in a real and substantial way not afforded under Section 19(5).
51. Mr. Nesbitt pointed out what he described as the “road map” dilemma left unresolved in N.I.B. where answers given are self-incriminatory. An answer can give a “road map” whereby a conviction can be secured without any statement made necessarily being proffered as evidence. Take for example the statement: “I murdered my wife, the bloodstained knife with my fingerprints on it is buried next door.” Digging up the knife, matching the blood and fingerprints will likely carry a conviction
52. In essence, the impairment of rights effected under Section 19 goes substantially beyond the level of impairment wrought by Section 10. That consideration alone not merely distinguished the instant case from N.I.B. (1) but also carried the constitutional argument in the Applicant’s favour.
THE RIGHT TO SILENCE
53. The right to silence does not denote any single right, but rather, in the words of Lord Mustill in R -v- Director of the Serious Fraud Office ex-parte Smith (1993) AC 1 it “refers to a disparate group of immunities which differ in nature, origin, incidence and importance”.
54. Lord Mustill in that case took time (at p. 30) to consider various types of immunity embraced by the term and said:-
“Amongst these may be identified:
(1) a general immunity, possessed by all person and bodies, from being compelled on pain of punishment to answer questions posed by other persons and bodies
(2) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them
(3) a specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind
(4) a specific immunity possessed by accused persons undergoing trial, from being compelled to give evidence and from being compelled to answer questions put to them in the dock
(5) a specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority
(6) a specific immunity (at least in certain circumstances which are unnecessary to explore) possessed by accused persons undergoing trial, from having adverse comment made on any failure
(a) to answer questions before trial, or
(b) to give evidence at the trial”.
55. He then pointed out that each of these immunities was of great importance but that they were not all different ways of expressing the same principle. It was necessary, he said, to “keep distinct the motives which have caused them to be embodied in English Law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with another, and different, immunities commonly grouped under the title of the ‘right to silence’.”
56. Having referred to the various forms of immunity identified by Lord Mustill, Costello J. in Heaney -v- Ireland stated as follows at p. 602:-
“Looking at the various motives for the different immunities he had identified he pointed out that the first was a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business, which was an assertion of personal liberty and privacy but that “few would dispute that some curtailment at the liberty is indispensable to the stability of society”.
57. He then pointed out that there was a long history of reaction against abuses of judicial interrogation and so the immunity against judicial interrogation arose. He further pointed out that there was an instinct that it is contrary to fair play to put an accused in a position where if he answers questions he may condemn himself and if he refuses he may be punished for his refusal. And finally, he pointed to the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra judicial confession to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are “voluntary”. He quoted Lord Mustill’s conclusion as follows, at p. 602:
“In the circumstance I think it is clear, given the diversity of immunities and of the policies underlying them, that it is not enough to ask simply whether parliament can intend to abolish a long-standing right to silence. Rather, an essential starting point must be to identify what variety of this right is being invoked, and what are the reasons for believing that the right in question ought at all costs to be maintained”.”
58. In every case therefore the issue with which the Court is concerned is not to debate an invasion of rights in abstract but rather infringements of rights at a particular time and in a concrete factual setting.
59. The list of immunities recorded by Lord Mustill indicates a hierarchy of different situations in which the requirement not to infringe the right has a greater or lesser degree of importance. As stated by Sachs J. in Ferreira -v- Levin and Ors. (at p. 272):-
“In my view, a breach of the long-standing right not to be compelled to incriminate oneself out of one’s own mouth would, in any context, raise a question of fundamental freedom. At the same time, the absence of an explicitly stated generalised right against self-incrimination in the Constitution, indicates that the operation of the principle outside of
a trial situation is weaker that within. The privilege against self incrimination should therefore neither be reduced to a restricted immunity confined to the trial situation, nor be enlarged so as to become an absolute right to be used on all occasions. It’s application depends on time, place and context. The closer to a trial situation, the more powerful the principle; the more remote from a trial, the weaker it will be.”
60. In the instant case, there is no suggestion of a ‘trial’, nor is there any ‘suspect’ who may have been arrested and detained as occurred in the Heaney case. The incident case is at the lower end of the spectrum or hierarchy identified by Lord Mustill.
61. Furthermore, the narrow objective of Section 19 is to obtain sight of books and documents with a view to seeing if an inspector should be sent in to examine the company’s affairs under another section. It follows therefore that the Court must also take into account that where the incriminating material has an objective reality, the requirement for protection is less compelling.
62. As Sachs J., again in Ferreira, stated at (p. 274):-
“Similarly, the more that self incrimination takes the form of oral communication, the more compelling will the protection be; the more objective or real the existence of the incriminating material, on the other hand, the more attenuated. Accordingly, pre-trial procedures of a non-communicative or non testimonial kind, such as compulsory fingerprinting, blood tests, blood alcohol tests, attendance at identity parades, DNA and other tests of an objective nature, or, in company fraud matters, hand writing tests, all of which would seem to fall directly under the concept of freedom and personal security, have become well established processes regarded in many parts of the world as being consistent with the values of an open and democratic society based on freedom and equality, and in suitably controlled conditions, would have far less difficulties in passing Section 33 scrutiny in terms of our Constitution”.
63. This consideration was also acknowledged by the European Court of Human Rights in the Quinn case, where the Court stated (at p. 12):-
“The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. The Court would note, in this context, that the present case does not concern a request, through the use of compulsory powers, of material which had an existence independent of the will of the applicants such as, documents or blood samples”.
64. These narrow objectives must in turn be seen in context against the wider policy objectives of Part II of the Companies Act 1990. The public interest in good company governance can hardly be questioned. Shanley J. in National Irish Bank (1) identified the State’s objective under Part II of the Companies Act 1990 when he stated as follows (at p 165):-
“Part II of the Act of 1990 as stated provides an mechanism for the investigation of companies by inspectors. The scheme of the Act of 1990 allows the appointment of inspectors by the Court on the application of the Minister where there are circumstances which suggest to the Court that the company has been operated in an unlawful or fraudulent manner. The inspectors are given investigative powers including a power to compel answers from officers and other persons. It is clearly envisaged by the Act of 1990 that prosecutions can follow. Speaking at the statutory policy behind the corresponding provisions of the English Act of 1985, Scott J. said In re: London United Investments Plc. (1992) B.C.L.C. 91 at p. 113:-
It is a regrettable feature of commercial and corporate fraud in these modern times that facilities are available for sophisticated fraudsters to prevent the trail leading to the unravelling of the fraud from being followed up. The secrecy provisions of some countries corporate and banking laws operate to this effect. Normally shareholdings and offshore companies do so as well. There is often no alternative if frauds and dishonest stratagems are to be laid bare but to demand answers from those who are in a position to give them. This, in my opinion, is at least part of the statutory policy being Part XIV of the Companies Act 1985.
It is, of course, a legitimate objective of the State, and entirely in the public interest come to lay bare frauds and dishonest strategems, and where the only means of effectively achieving such an objective is to provide an investigative procedure without a right to silence (as in the instance case) then one can properly assert that the restrictions imposed by Section 10 on the right to silence are no greater than is necessary to enable the State to fulfil its constitutional obligations of ensuring equality before the law and of protecting the property rights of every citizen.”
65. In the Supreme Court (p. 180) Barrington J stated:-
“…if there are grounds for believing that there is malpractice or illegality in the operation of the banking system, it is essential, in the public interest, that the public authorities should have power to find out what is going on. It appears to me that the powers given to the inspectors under Section 10 of the Companies Act 1990, as set out earlier in this judgment, are no greater than the public interest requires. Their meaning is clear and they pass the proportionality test. Accordingly, it appears to me than interviewees are not entitled to refuse to answer questions properly posed to them by the inspectors pursuant to the inspector’s powers under the Act.”
66. At an earlier point in his judgment, Barrington J. had observed that the investigation of commercial fraud was “a matter of great importance in modern society”.
67. Those who enjoy the benefits of incorporation must also, it seems to me, accept the concomitant duties and obligations of incorporation, as detailed by Mr. Collins. As Herbert J. (while sitting as a member of the Supreme Court for the hearing of the appeal in this matter on the 1st day of February 2002) stated (at p.3):-
“Incorporation under the Companies Acts involves accepting the overseeing power of the Minister. Persons who bind themselves together to constitute the legal entity known as the “Company” cannot choose to enjoy the manifold privileges and benefits of incorporation while rejecting the less convenient aspects, such as the supervisory role of the Minister. It is for the more effective discharge of this function that the Oireachtas saw fit to confirm on the Minister the right to examine the books or documents of the bodies in the circumstances specified in Section 19 (2)(a) to 19 (2)(h). In my judgment, the nature of the power conferred upon the Minister by Section 19 (2)(a) is intentionally expressed in wide and general terms relating as it does to a form of preliminary inquiry, in contrast to the very specific occasions for such intervention by the Minster instanced in subsections 19 (2)(b) to 19 (2)(h).”
68. Taking all these considerations into account, I am satisfied that Section 19 (5) does not fail the proportionality test indicated by the Supreme Court in Heaney. The compulsion to produce books and documents is completely unobjectionable and the requirement to answer questions of a fairly limited nature under Section 19 does not in my view constitute an infringement of Article 40 of sufficient substance to warrant condemning the section when weighed in the balance with the countervailing public interest in good corporate governance.
69. There is at the end of the day a world of difference between the position of a vulnerable suspect, held in police custody, say, for example, for the investigation of a domestic homicide and that of a large corporation which may engage in all sorts of stratagems and then call on vast financial resources and expertise to protect and defend its position to the ultimate I am not here referring to the present Applicants, but rather contrasting by example the hugely different contexts in which the right to silence must be considered.
70. The real difficulty, it seems to me, lies in Section 19 (6). The examinee is obliged, on pain of punishment for a refusal, to answer questions or provide explanations which may be incriminating and which may be used in subsequent criminal proceedings against him.
71. While the compulsion to answer questions dealing with the stewardship of a company, whether incriminating or not, can be justified with relative ease, the knowledge that the answers can be used in subsequent criminal proceedings gives rise to a second problem which is related inextricably with the issue just considered (i.e. the permissible questioning), when considering the whole question of “voluntariness”.
72. It is instructive to see how Shanley J. dealt with this difficulty in National Irish Bank when considering the constitutional issue under Section 10. In essence, he approached the problem by divorcing the issue before him from the issue of what might happen with material yielded up and sought to be used at a later stage. At p. 166 he stated:-
“I do not believe that in determining that Section 10 abrogates the right to silence, I should have regard to the use to which such answers are put. The statutory obligation to answer self-incriminatory questions is not inconsistent with the right to trial in due course of law. When asked questions by an inspector, the witness does not stand as an accused person. If he becomes an accused person, having answered incriminating questions, his right to a fair trial may not even at that stage be infringed; it depends on whether the compelled testimony is tendered against him at his trial. If it is, he may, of course, object to it and it would be matter for the trial judge to determine its admissibility. It is at that stage, and no sooner, that an adjudication on the admissibility of answers (or the fruits of such answers) is to be made. I therefore see no necessary connection between the occasion of questioning by an inspector and the occasion, at trial, of tendering compelled testimony. No right to a fair trial is infringed at the questioning stage; the use to which the answer are put is a separate matter and where such use threatens to or does infringe a constitutional right of the witness, that right can be then asserted and vindicated. That it is appropriate to look at the Inspector’s investigative and questioning roles separately from any subsequent trial finds support in the decision already referred to in Saunders -v- United Kingdom) (1997) 23 EHRR 313, where (in relation to the Companies Act, 1985 in the United Kingdom) the European Court of European Rights said of the equivalent of section 10 at p. 337:-
‘… a requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6 (1) would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities.’
Accordingly, the Court allowed that the privilege against self-incrimination was not applicable to such preparatory investigations. However, the Court found that the use of such compelled testimony at the trial was indeed a breach of Article 6 (1) of the Convention . Equally, in Heaney -v- Ireland (1996) 1 IR 580 the Supreme Court upheld the constitutionality of Section 52 (1) of the Offences Against the State Act, 1939, and declined to consider the moot point of whether information lawfully obtained pursuant to Section 52 could be used in evidence. The position is no different here: whether or not there is a constitutional right not to have compelled testimony, or its fruits, used against an accused is an issue which I do not now have to decide because it has not as yet arisen. That is a matter that falls to be decided on the occasion when such evidence is tendered. Accordingly, I do not have to consider the implications of the wording of Section 18 of the Act of 1990.”
73. In the Supreme Court it was held that any confession of an official of a company under investigation obtained by the inspectors would not in general be admissible at a subsequent criminal trial of such an official unless the trial judge was satisfied that the confession was voluntary. At p. 188 Barrington J. stated:-
“Accordingly the better interpretation of Section 18 in the light of the Constitution is that it does not authorise the admission of forced or involuntary confessions against an accused person in a criminal trial, and it can be stated, as a general principle, that a confession, to be admissible at a criminal trial, must be voluntary. Whether however a confession is voluntary or not must in every case in which the matter is disputed be a question to be decided, in the first instance, by the trial judge.”
74. This approach essentially “parks” any issue as to later use or admissibility raised under Section 10, leaving it to be dealt with on a case by case basis. This approach inevitably means that the user or admissibility of incriminatory material is not determined by any objective standard but remains an essentially subjective test going to whether the will of the witness was overborne in the particular circumstances. It would appear to displace the objective test of self-incrimination at common law.
75. It leaves outstanding the dilemma identified by Kirby P in Accident Insurance Mutual Holdings Limited -v- McFadden (1993) 31 NSWLR 412:-
“What is in issue, ultimately, is not the subjective fears of the witness claiming the privilege but the objective tendency of the question to expose that witness to the risk of criminal prosecution. One witness may not perceive such a risk. Unless the judicial officer presiding intervenes, the question will be answered and the privilege lost. One witness may have multiple motives and even mala fides. But if the question is such in fact as to expose him or her to the risk of future prosecution, it is the duty of the judicial officer to uphold the privilege. It will be easier and more reliable to assess the reasonableness of the apprehension than the genuineness of the sentiment. A Court can quite readily speculate upon and judge the possible use of demanded oral testimony. The devil himself knoweth not the mind of man (or woman).”
76. However, regardless of the difficulties which the subjective test, to be applied on a case by cases basis, may entail, this Court is of course bound to accept and apply the principles enunciated by the Supreme Court in National Irish Bank, unless Section 10 and Section 19 are clearly distinguishable in the sense that the right to silence is more comprehensively invaded under Section 19 than under Section 10.
77. It is implicit in the judgment of Barrington J. that there is scope for answers to be given on a voluntary basis under Section 10. If not, it would have been quite pointless to resolve the issue in the manner in which it was resolved by the Court.
78. Under Section 10, a person who is unwilling or refuses to answer still has the opportunity of having the reasonableness of that stance tested as an issue by the Court. This is an important protection, because it is scarcely to be anticipated that the Court will direct that unreasonable or arguably irrelevant questions be answered. A refusal may thus not be an offence.
79. The interviewee under Section 19 has no such scope for dissent. Either he answers or he does not. If he does not answer, all the elements of the offence exist and, while obviously an adjudicative element must then take place prior to conviction, it would appear that any judge dealing with the matter would not be concerned to enquire further than to ascertain whether a particular question was put and no answer given before reaching a conclusion, which would almost certainly be to convict, so that the real issue will always be the appropriate level of sanction to be imposed.
80. Can it be said that there is any scope for “voluntariness” with regard to the answering of questions in this framework? In my view there is not. A refusal seems to me to be akin to a refusal to provide a blood or urine sample when required so to do by a properly designated medical officer in the context of a drink driving offence. Furthermore, the fact that any answer given may be used in later proceedings can only constitute a further pressure on the interviewee to keep silent, so that his only ‘choice’ is between a conviction on refusal, and self-incrimination in the context of a later prosecution on making answer.
81. One assumes that an authorised officer may warn an interviewee who fails to explain or make a statement that he is thereby committing an offence. That being so (it being even more objectionable that the interviewee would not know that an offence is about to be committed), the circumstances of any statement then made must be regarded as not dissimilar from those found to be unsatisfactory by the Court of Criminal Appeal in A.G. v. Gilbert (1973) I.R. 383.
82. It seems to me there can be no scope for voluntariness under Section 19 given that the consequence of a refusal to answer is the immediate commission of an offence with penal sanctions attaching. It seems to me therefore that the instant case is clearly distinguishable from the decision of the Supreme Court in National Irish Bank (1).
83. This being so, I do not think that one can approach resolution of the matter in the separate stages as envisaged by Shanley J., other than to the extent of acknowledging or holding that different constitutional considerations appear to arise under Section 19(5) and 19(6). Article 40 governs Section 19(5) whereas both Article 40 and Article 38, it seems to me, govern Section 19(6). Where no scope for voluntariness exists under Section 19 so that any answers given are inescapably inadmissible in later criminal proceedings, there can be no justification for considering the two questions as though they were separate and distinct. They feed into each other in all critical respects.
84. The decision of the European Court of Human Rights is clearly distinguishable from this case, quite apart from its non-binding nature. The Court in Quinn specifically stated (at par. 55) that it was not “called upon in the present case to consider the impact on the rights to silence or against self incrimination of the direct or indirect use made in later proceedings against an accused, of statements made pursuant to Section 52 of the 1939 Act.”
85. Instead, the Court found that the “degree of compulsion” under Section 52 was not a proportionate response in that the security and public order concerns of the Government could not justify a provision which extinguished the very essence of the applicants’ right to silence and against self incrimination. That case may be further distinguished insofar as it relates exclusively to the overthrow of a suspect’s will, in particular circumstances of detention following arrest. The Court carefully distinguished between those situations and situations where documents or objective evidence was involved. It is also important to note that the European Court of Human Rights in Saunders v. The United Kingdom decided to condemn the use at trial of evidence obtained from the accused under compulsion, but not the means by which that evidence was initially obtained.
86. I find that Section 19(6) by not immunising answers given from later use in criminal proceedings (and to that extent only) infringes the “minimum invasion” test enunciated by Costello J. in Heaney v. Ireland . I am somewhat fortified in reaching this conclusion by the knowledge that the new amending legislation has provided for just such an “immunisation” clause, although I could not and have not allowed that determine my own views on the matter which I have arrived at for the reasons stated.
87. I accept all of Mr. Collins submissions in relation to the alleged infringement of property rights under the Constitution. The Minister has a duty and responsibility to ensure sound corporate governance and the propriety of her decision to appoint an authorised officer has been upheld in earlier proceedings in this matter. Furthermore, the Supreme Court has alluded to certain findings of fact which precipitated the present inquiry which were held by that Court to provide adequate grounds for the inquiries brought under Section 19. There is no question of mala fides of any sort, which strikes me as the only possible motivation which might give rise to any question of the Applicants seeking relief in respect of costs or expenses incurred in complying with the Minister’s requirements as detailed in the statutory regime. That inquiry is in every respect similar to the other instances cited by Mr. Collins, such as a Revenue audit, and once the bona fide nature of such an inquiry is established, it seems to me that no contention lies that property rights have been infringed when the countervailing public interest in good corporate governance is placed in the balance. I accordingly reject all the Applicants submissions on this point.
88. It follows from the findings I have made that all demands and requirements made under Section 19 (4) were made on a lawful and constitutional basis. I reject the Applicants submissions in relation to Section 19 (5). I do not accept that Section 19(5) infringes either Article 40 or Article 38 of the Constitution. However, it equally follows that Section 19(6) cannot survive constitutional scrutiny for the reasons stated. I will accordingly declare Section 19(6) only to be unconstitutional.

People (DPP) v Cormac Fitzpatrick

[2012] IECCA 74

Judgment of the Court delivered on the 25th day of July 2012 by Mr. Justice O’Donnell

1 At approximately 1.20 a.m. on the 9th September, 2008, An Garda Síochána raided a one bedroom apartment in Clondalkin, Dublin. They found two men (who are not the appellants in the present case) in the apartment proper. On the table, and in full view, was a large quantity of materials for the construction of bombs, which were accordingly “explosive materials” within the meaning of the Explosive Substances Act 1883, as amended. There were four screw threaded lengths of pipe, 620 grammes of propellant power, four capsule bulbs, seven nine volt batteries, seven travel alarm clocks, lengths of three core wire, a soldering iron and a pack of four inch nails. Also found in the apartment was a walkie-talkie tuned to a frequency. A similar walkie-talkie was recovered from a man in a car outside the apartment building.

2 The appellants were found in the bathroom wearing latex gloves. Also found in the bathroom was an alarm clock, with wiring coming from it, two batteries and a plate containing an explosive substance which had been partially scorched or burnt. There was a dispute, to which it will be necessary to return, as to whether either of the men had any of the objects on their person. A number of gardaí gave evidence to the effect that Cormac Fitzpatrick, the first appellant, was seen to drop the clock and battery onto the floor. The coat of Terry McConnell, the second appellant, was hanging over a chair in the living area of the apartment. Mr. Fitzpatrick’s cigarettes were recovered in the kitchen area. The appellants were charged with possession of an explosive substance in circumstances such as to give rise to a reasonable suspicion that they did not have it in their possession for a lawful objective, contrary to s.4 of the Explosive Substances Act 1883, as amended by s. 15(4) of the Offences Against the State (Amendment) Act 1998.

3 Both appellants gave evidence at the trial which was broadly similar in its terms. Mr. McConnell was working in Monaghan with Mr. Fitzpatrick. He was friendly however with a Gerard Mackin, then in Portlaoise Prison and awaiting trial at the Special Criminal Court. Mr. McConnell had visited Mr. Mackin in Portlaoise Prison on the 6th September, and for reasons that are not explained, Mr. Mackin was apparently confident of being released the following month (a confidence which transpired to be misplaced). Mr. McConnell offered to help Mr. Mackin get accommodation in the Dublin area when he was released. Mr. Mackin had befriended a man in custody, Declan Duffy, and Mr. Duffy’s brother-in-law, Declan Comerford, was also to assist Mr. McConnell in organising accommodation. Mr. McConnell had met Mr. Comerford in Burger King in Tallaght later that day and they had arranged to meet again on the 8th September.

4 Mr. McConnell’s evidence was that he was travelling in his own car to Dublin to meet Mr. Comerford to finalise arrangements and to provide evidence of his means. He asked Mr. Fitzpatrick to come along “for the spin”. However, Mr. McConnell got lost and pulled into the Kestrel Hotel car park in Walkinstown. He rang Mr. Comerford. Soon after that a car pulled into the car park and Mr. McConnell received a phone call, which he believed was from Mr. Comerford, directing his attention to the car, and when it left he followed it. Sometime later the car stopped and another man, Gareth Pigott , got out and got into Mr. McConnell’s car and directed him to the apartment. Once in the apartment, Mr Pigott produced a bag from which he removed the gloves and some of the equipment subsequently recovered by the gardaí. The appellants were told to put on the latex gloves. This they did although they were frustrated and scared. They went into the bathroom to have a word. Before they could do anything the gardaí arrived.

5 This then was the account that both appellants gave to the court to explain why they, two men from County Monaghan, had travelled to Dublin, made an apparent rendezvous in a car park, picked up a man they had not met before and were found with him in the early hours of the morning in a small apartment in Clondalkin wearing latex gloves and surrounded by bomb making paraphernalia.

6 After a trial in the Special Criminal Court lasting for 13 days over a period of some four weeks, the appellants were convicted. They have now each appealed their convictions, but although the appeals arise out of the same factual circumstances, the issues raised in the appeal are entirely separate.

The Appeal of Terry McConnell

7 This appeal raised a single issue: it was contended that a claim for privilege made in the case in relation to certain disclosure matters, coupled with the jurisprudence of the Irish courts on the resolution of disputes on issues of criminal matters, were such as to contravene the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”), and accordingly the trial ought to have been stayed.

8 It is necessary to set out the background facts to understand the point which is advanced in this case. The trial commenced on the 4th November, 2009. On the same day (and for the first time) the solicitor for Mr. McConnell raised an issue in relation to what might be broadly described as disclosure and privilege. A fax was sent to the chief prosecution solicitor in the following terms:-

“With reference to the above named client. Please advise us as a matter of urgency whether any of our client’s co-accused were at any time material to this case acting as agents on behalf of the State. Please also advise as to whether Declan Cummingford (sic) were at any time material to this case acting as agents on behalf of the State.
This request is made of the prosecution as it is relevant to our client’s defence and his account of his presence at Apartment 203, The Crescent, Park West, Dublin 22 immediately prior to and at the time of his arrest.”

9 Another request was sent by fax on the 6th November seeking details of a telephone number which had been contained in a notice of additional evidence served the day before the trial (the 3rd November, 2009). The prosecution replied to both letters by an undated letter stating in relation to the queries raised in the letter of the 4th November that “the State claims privilege on policy grounds”. The letter also provided information about the phone number requested.
10 On the 12th November, 2009, the solicitor for the appellant sent a further letter seeking limited disclosure:-

“We refer to the above and request disclosure of any information or statement, either written or verbal, received or taken from the landlord or tenant of the relevant flat concerning occupation of the premises by any of the defendants in this case. Please give this your urgent attention.”
11 By letter of the 17th November the D.P.P. replied:-
“Please note there is no such material in existence for disclosure as set out in your letter of the 12th inst.”
12 On the 18th November, 2009, by which stage the trial was well advanced, the solicitors for the appellant wrote a following letter in the following terms, which was again sent by fax:-
“It is apparent that the D.P.P. is in possession of material relevant to the above proceedings that has not been disclosed to the defence. Such material includes but is not confined to the following type matters:
(1) The occupation of flat 203.

(2) How gardaí became aware of the presence of the unlawful material of flat 203.

(3) The identity and source of information concerning the unlawful enterprise.

(4) The defendant’s involvement in the alleged offences.

(5) The defendant’s relationship vis a vis the other accused.

(6) The duration of the offending items in the flat.

You will be aware of the case made by our client during interview. In light of the case made by him we believe that full disclosure of all material in the possession of the gardaí and DPP is essential to ensure a fair trial and compliance with the provisions of Article 6 of the ECHR. We request the urgent disclosure of this material. We respectfully suggest to you that it is not for the prosecution to withhold this material on the alleged self asserted basis of public interest privilege. The withholding of such material can only legally occur where the Court has examined the material and expressly approved the claim made by the prosecution. We therefore put you on notice that we consider that the procedure deployed by the prosecution to date is procedurally irregular and unlawful. We therefore respectfully request that you proceed provide the said material to us.”

13 A number of matters arise in relation to this letter. First, it was entirely unsatisfactory that these matters should be agitated as the trial was proceeding. Matters of disclosure, and claims of privilege, can be difficult and complex matters, and are normally dealt with well in advance of the trial. Not only does this permit sufficient time and space to address the issues, and means that if disclosure is ordered the defence will have the material in sufficient time to analyse it and consider how it should be deployed, and what additional steps may be required. Not insignificantly in the present context it also might allow a differently constituted court to address the issue if that was though necessary or desirable. Second, since there had been no request for disclosure pre-trial, or subsequent challenge to the disclosure made, the question of withholding any material on any “self asserted basis of public interest and privilege” had not arisen. It followed that since no claim of privilege had yet been made in relation to any of the matters referred to in this letter there had been no challenge to any claim of privilege or adjudication on it. The statement that the withholding of material can only legally occur “where a Court has examined the material and expressly approved the claim made by the prosecution” is itself incorrect. The court does not have to adjudicate unless a claim to privilege is made and challenged and the adjudication on such a challenge does not necessarily involve the examination of the material by the court. Finally, the reference to the prosecution being aware of the case made by Mr. McConnell during interview appears to be a reference to an account given by him pursuant to a demand made pursuant to s.19 of the Criminal Justice Act 1984, as substituted by s. 29(1) of the Criminal Justice Act 2007, in which he had given an account not dissimilar to that ultimately given in evidence of having been in the flat innocently in order to make arrangements for the securing of accommodation for Mr. Mackin.
14 The chief prosecution solicitor replied via letter of the same day, noting that the request was an elaboration of that contained in the letter of the 12th November and stating:-

“The prosecution addressed these queries in correspondence dated the 17th day of November. I would direct your attention to the same correspondence.”
Accordingly, it appeared that the prosecution’s position on the belated request for disclosure contained in the letter of the 18th November, 2009, was that “there was no such material in existence for disclosure”. That position was never challenged because, it may be deduced, the legal argument the appellant subsequently sought to advance depended upon a claim for privilege being maintained, ideally after perusal of documents by the court.
15 This correspondence was being pursued in tandem with the proceedings. The correspondence did not clearly distinguish between two separate lines of inquiry: first a request for information as to whether any one of a number of named persons were informers, and second a demand for more general disclosure. During the trial counsel for the appellant sought to advance the question of the identity of informers. Somewhat surprisingly, the most senior garda officer, Detective Superintendent O’Sullivan, gave evidence and was not questioned on this issue. On day seven, however, the issue was ventilated when Detective Sergeant Daniel Prenty was being cross-examined:-

“Q. Was Declan Duffy acting as an informant in this case?
A. I beg your pardon?

Q. Was Declan Duffy acting as an informant in this case?

A. Declan Duffy is an informer, a garda informer?

Q. Yes.

A. I am not aware that Declan Duffy is a garda informer.

Q. You are not aware of that?

A. I am not aware.

Q. Where did the information come from that Declan Duffy was in overall charge of this operation?

A. I imagine it came from a privileged source?

Q. Are you going to divulge the source to us?

A. I don’t know the source, so I am not in a position, but …

Q. You don’t know the source?

A. No I didn’t know the source.

Q. Who was it that was dealing with the source?”

16 At this point junior counsel for the prosecution intervened and said that it seemed clear there was an issue of privilege being raised and appeared to invite the court to determine it. The judge pointed out that Detective Garda Prenty had said that he did not know whether the named person was an informant and did not know the source. However, it was clear that an issue could arise and the presiding judge addressed counsel for the appellant:-
“Judge: If you want to pursue it we will hear both sides.
Counsel: I am not pursuing it at this stage but I am asking the court to make note of the objection at this stage…”

A short time later a further series of questions were asked:-
“Q. Yes now, where did that information come from, that he had met with Derek Comerford on the 6th September?
A. I will claim privilege on that judge.

Q. Well was Derek Comerford an informant in this case?

A. Judge the counsel has asked me in relation to informants. I have no knowledge of the identity of any garda informer. I don’t deal in that area, so in relation to say that Mr Dunphy or Mr Comerford was a garda informer…”

17 There was then some further debate between counsel and the court and the presiding judge indicated the view, which cannot have come as a surprise, that any question capable of identifying informants or anything relating to informants was a matter of privilege. Counsel for the appellant replied:-
“I don’t dispute that for the moment. The relevance of the question and the stance taken will be relevant at a later stage in this case.”
That somewhat cryptic remark became clearer on day 12. On the morning of that hearing, counsel on behalf of the appellant applied for a ruling “that the trial of my client is unfair”. He observed that the court was aware from Superintendent O’Sullivan’s evidence that he had signed a warrant authorising a search of the premises, “but what we don’t know are such matters as follows: how did the gardaí learn of this matter? What was the background of the guards learning this? When did they learn it? Who were the occupiers of the flat? How long were the items in the flat? Why did the gardaí wait until 1.20 a.m.?” The presiding judge observed, somewhat sceptically, that this sounded like a “cross-examination list of questions”. Counsel responded that they were not permissible because the prosecution pleaded they had privilege in respect of them and continued: “the court will recall that I asked Detective Sergeant Prenty whether Derek Comerford was an informant and he pleaded privilege in respect of that”. The presiding judge asked counsel did he challenge the privilege and counsel replied: “not at that stage but I asked the court to note the plea”. Counsel contended that the identity of an informant was relevant to this case because the court now knew the nature of the defence that was being made. The presiding judge stated: “The nature of the defence is he didn’t know what he was doing in his rubber gloves and all the bomb making [equipment]”. Counsel said that this was an over simplistic approach and argued that the appellant’s defence was that he “was set up”. The trial judge observed that he had not heard that case being made up until then (and it should be observed that this was now the twelfth day of the trial).
18 Subsequently, counsel developed the argument. It became clear that it was being argued that the question of disclosure in Ireland was dealt with in the D.P.P. v. Special Criminal Court [1999] 1 IR 60, which acknowledged that the informer privilege was necessary for the prevention and detection of crime, but was subject to the innocence at stake exception. Where a claim of privilege was challenged a court would resolve it, and if necessary consider the documents to determine if the claim was validly made. Counsel argued that this procedure was inconsistent with the decision of the European Court of Human Rights in Rowe and Davis v. U.K. (2000) 30 EHRR 1 and that the absence of a special counsel system to determine contested issues of privilege was a breach of the appellant’s right to a fair trial guaranteed by Article 6 of the Convention. In counsel’s submission, the procedure whereby the trial court could examine undisclosed material created a form of stalemate. It was, he contended, necessary that the material should be considered by a court, but wrong for the court of trial to do so. Accordingly, he asked the court to rule that the trial was unfair and submitted that “if that ruling is made then certain consequences may flow from that. But I don’t address the remedy as such at this stage”. Eventually, counsel invited the court to order a stay on the proceedings. The Special Criminal Court considered the submission and delivered a ruling the following day, rejecting it. Subsequently, the court proceeded to convict the appellant. On this appeal the sole issue argued on behalf of the appellant is that the court was wrong to reject the appellant’s arguments in relation to disclosure.

19 Notwithstanding the industry with which this argument was advanced to the court, it is this Court’s clear view that this point is unsustainable. The point involved a belated and ambitious attempt to press the facts of this case into a form which would permit a theoretical argument about the procedure to be adopted by a court, and in particular the Special Criminal Court where the judges were also the fact finders, when a claim of privilege was raised, and challenged. It is apparent, however, that there are a number of serious difficulties with the argument and the course which the appellant invites the Court to take.

20 It is well established that the identity of an informant is normally privileged from disclosure. The practical reasons for this privilege are obvious. Not only would there be a real risk that the flow of information to the gardaí would dry up if the identity of informants could be routinely disclosed in court proceedings, but, particularly in cases involving serious criminality, the threat to the life of informants is very real. Normally, either the identity of the informant, or the manner in which information has been gathered by investigating authorities, is of little possible relevance to any case, since such information is itself not adduced in evidence. On the other hand, even apparently innocuous pieces of information about informants, or the method by which investigating authorities obtain information about criminal activities, may be of considerable value to the intelligence gathering operations of organisations involved in criminality, particularly paramilitary crime. Accordingly, courts throughout the world approach the question of informer’s privilege with considerable, and appropriate, sensitivity.

21 From the outset, it has always been accepted that the principle is subject to the exception described as the innocence at stake exception. The application of this test in practice may be particularly difficult since there is no obligation on the accused to identify the nature of a defence which therefore makes the assessment of the relevance of any piece of information more difficult. Furthermore, in those cases in which a court concludes that the disclosure of information in relation to an informer is truly necessary because of the innocence at stake exception, the prosecution will often, if not invariably, decide to abandon the case rather than incur the risk to the individual informer, and the damage to the investigatory process that disclosure might entail. The prospect of the abandonment of the trial however makes pursuit of issues of disclosure an attractive and perhaps necessary tactic on the part of the defence. For these reasons courts have always emphasised that the matter must be approached with considerable sensitivity, delicacy and precision, and that, in the words of McLachlan J. in R v. Leipert [1997] 2 L.R.C. 260, disclosure cannot trump privilege. It is important, therefore, that this sometimes difficult issue is addressed only when it is necessary and essential on the facts of the case, and then in a focussed and, where necessary, nuanced fashion. Here, the opposite occurred. The issue of disclosure was not raised in advance of the trial, in circumstances which would have allowed the issues to be clarified, isolated and addressed in a context which did not necessarily involve the court of trial. The issue was raised after the commencement of the trial, and in a very broad and indiscriminate way. The prosecution was invited to advise as a matter of urgency whether any of the appellants, or whether Mr. Dunphy or Mr. Comerford, were at any time material to the case “acting as agents on behalf of the State”. When the matter was first raised during the trial proper, it was in an almost surreal way, and where a detective sergeant who professed himself understandably ignorant of the identity of any informant was nevertheless asked if named individuals were informants. It was upon these slender bases that the legal argument was constructed. Indeed, it is perhaps not unfair to observe that the normal process was reversed here: the legal argument, such as it was, already existed, and the difficulty facing the defence was to attempt to bring the facts of the case to a point where the argument could be plausibly advanced. Sometimes such a course can succeed but here it should hardly be surprising that the argument failed to surmount a number of basic hurdles.

22 The appellant’s case amounts to a contention that the procedure used by the Special Criminal Court in rejecting a claim of privilege is incompatible with the appellant’s rights under Article 6.3 of the Convention. However, as so formulated, the claim lacks the precision both as to the precise aspect of the procedure challenged and the manner in which the Convention claim is to be maintained. As pointed out by Murray C.J. in J. McD. v. P.L. [2010] 2 IR 199, the Convention is not part of Irish law by its own force. It becomes part of domestic law only in accordance with the terms of the European Convention on Human Rights Act 2003. Murray C.J. stated at pp. 252-253 that:-

“…[T]he role of the Convention as an interpretative tool in the interpretation of our law stems from a statute, not the Convention itself, and can only be used within the ambit of the Act of 2003.”
It is, therefore, also always a threshold question as to how this Act applies in any case. Here, for example, the appellant does not seek a declaration of incompatibility, which of course would not avail him in this appeal. It is to be assumed that the claim is made under s.2, but the appellant has not identified this statutory provision or rule of law which should be interpreted, so far as possible, in a manner compatible with the Convention under that section. Murray C.J. pointed out in McD that “in exercising its jurisdiction pursuant to s. 2 a court must identify the statutory provision or rule of law which it is interpreting or applying” As one commentator has observed (Cahill, “McD v L and the Incorporation of the European Convention on Human Rights”, (2010) Ir. Jur. 222), it is necessary to “put firmly behind us a facile understanding that the ECHR is incorporated at a sub-constitutional level and move instead towards a very deliberate parsing of the sections of the 2003 Act in order to account, in very rigorous terms, for what that incorporation entails”. This has not been done here. It is also surprising that since Article 38 of the Irish Constitution is similar to Article 6 of the Convention, and in some respects broader, the claim is not formulated in some respect under the applicable provisions of the Irish Constitution. Taking a generous approach to the appellant’s case, however, it seems that the case amounts to a contention that the practice referred to in the case of D.P.P. v. Special Criminal Court, which contemplates the possibility of the court itself inspecting the document in order to satisfy itself that a privilege has been properly claimed, is incompatible with Article 6 on the basis that the court may be exposed to material relevant to a matter it may have to decide, which, if the claim is upheld, the defence will not see.
23 If this indeed is the claim being advanced by the appellant, then it cannot plausibly be advanced in this case. The procedure under which the court assesses a challenge to a claim for a privilege was not reached in this case precisely because the claim was never challenged. Instead, the question whether or not any witness or co-accused was an agent of the State was raised somewhat broadly and fleetingly and the appellant then acquiesced in a claim of privilege that was predictably made. That process did not involve the examination of any document.

24 It cannot be argued that the appellant’s acquiescence was unavoidable because the challenge was bound to fail. As is clear from the case law on informer’s privilege, starting with Marks v. Beyfus (1890) L.R. 25 Q.B.D. 494, the court has always been prepared to allow a challenge to privilege on the grounds that innocence is at stake, i.e. that it is essential to disclose the identity of the informer because it is critical to the defence of the criminal trial. This normally does not involve any scrutiny of documents, nor does it involve exposing the court to any information. Once again, therefore, the possibilities were not explored in this case. It follows that the case the appellant seeks to make lacks an essential factual foundation: the court of trial did not inspect any document and has not been exposed to any information which was not available to the defence. Nor was it inevitable that such a course would have ensued if the appellant had challenged the privilege. Accordingly, the issue which was sought to be advanced on the application to stay the proceedings, and again on this appeal, simply does not arise.

25 That the appellant’s case here is so plainly devoid of factual basis should not suggest that if the appellant had pursued the matter in some different fashion, that a valid complaint could have been made. The attempt to seek to raise the issue in relation to the identity of possible informants was not in any way connected to the appellant’s own case that he had come to Dublin to make arrangements for the accommodation of Mr. Mackin. He did not suggest that he had been set up or otherwise entrapped – an allegation that would more naturally come to someone who admitted involvement in the offence, but sought to excuse it. Nor is it by any means clear that the decision in Rowe and Davis v. U.K. has any application to the type of situation which may arise in any Irish court when it considers a claim for privilege since it is not practice for an Irish court to entertain ex parte applications, either in respect of documents or other disclosure. Although a court may sometimes view materials after inter partes argument, that material rarely relates directly to an issue in the case and courts make it clear that they will not have regard to any such material in coming to any decision. The decision in Rowe and Davis v. U.K. itself is somewhat controversial and it remains to be seen how this line of authority will develop. If, however, a situation genuinely arises which presents an acute problem to a prospective trial court, it may then be necessary to consider if indeed there is any rule of law requiring a court to proceed in a particular way, and if so, whether it requires any adjustment in accordance with the jurisprudence of the Convention. This Court for its part does not anticipate such a situation, or how, if at all, it should be resolved. The application of Mr. McConnell is refused.
Application of Cormac Fitzpatrick
26 This application raised three quite distinct issues. One ground was that the verdict of the court was perverse in holding that the appellant had dropped an alarm clock to the floor when the gardaí entered the apartment. Under this heading the appellant carried out a careful analysis of the different and differing accounts of four gardaí who had entered the apartment. Each of the gardaí gave evidence that they saw the appellant drop an alarm clock. Three gardaí also gave evidence that they saw him drop a battery to the floor. One garda heard the noise of something falling into the bath. The appellant maintains that the court was wrong, firstly, to observe that it could not conceive of any reason why the gardaí would feel the need to embellish their evidence by giving a false description, and, furthermore, in holding that the appellant was “at least” seen to have dropped an alarm clock to the floor.

27 Notwithstanding the careful and detailed way in which this aspect of the appeal was advanced, it is not possible for this Court to accede to the application on this ground. There was clearly sufficient evidence for the court to come to the conclusion which it did. It had the advantage of seeing and hearing all of the garda witnesses, and seeing them cross-examined. The reference the court made to their being no reason to embellish their accounts appears to this court not directed so much to the question of whether there was any reason for the gardaí to collude, but rather, perhaps, that there was no reason why if they had done so, they would come up with accounts which differed in this respect. The court was fully entitled to conclude that all the evidence was that Mr. Fitzpatrick had dropped an alarm clock to the floor when the gardaí entered the apartment. Accordingly, this aspect of the application fails. In making no finding that the appellant also dropped a battery, the court was merely giving the appellant the benefit of the doubt.

A further ground advanced by this appellant was that the facts as established (including the evidence that Mr. Fitzpatrick was seen to drop an alarm clock to the ground in the bathroom when the gardaí entered the premises) were insufficient to establish possession in law. The appellant argued that there were essentially two elements to the law on possession: first, that the accused person must be shown to have some knowledge of the article; and second, he must be in a position to exercise some control over it. The appellant realistically accepted, however, that it was clear that a court may infer such knowledge and control from the circumstances in which the article was found. Here, Mr. Fitzpatrick was arrested in a one bedroom apartment, with bomb making materials which were not just in open view but apparently in the course of being assembled. This appellant was himself in the bathroom where there were other materials and was seen to drop an alarm clock. Furthermore, he was wearing latex gloves. All of this occurred at 1.20 a.m. in the morning. While the appellant submitted that his explanation for his presence in the apartment wearing latex gloves was one that could reasonably be true, this Court is satisfied that the Special Criminal Court was fully justified in rejecting that account as implausible, contrived and untrue. In the circumstances of the case, the court was fully entitled to infer sufficient knowledge and control to establish possession.

28 A further ground advanced by this appellant was that the facts as established (including on this hypothesis the evidence that Mr. Fitzpatrick was seen to drop an alarm clock to the ground in the bathroom, when the gardaí entered the premises) were insufficient to establish possession in law. The appellant argued that there were essentially two elements to the law on possession, first, that the accused person must be shown to have some knowledge of the article, and second he must be in a position to exercise some control over it. The appellant realistically accepted however, that it was clear that a court may infer such knowledge and control from the circumstances in which the article was found. Here Mr. Fitzpatrick was arrested in a one bedroom apartment, where bomb making materials were not just on open view but apparently in the course of being assembled. This appellant was himself in the bathroom where there were other materials and was seen to drop an alarm clock. Furthermore, he was wearing latex gloves. All of this occurred at 1.20am in the morning. While the Applicant submitted that his explanation for his presence in the apartment wearing latex gloves was one that could reasonably be true, this Court is satisfied that the Special Criminal Court was fully justified in rejecting that account as utterly implausible contrived and untrue, and designed to provide some narrative however implausible to explain events of which there was likely to be independent evidence. In the circumstances of the case, the Court was fully entitled to infer knowledge and control, sufficient to establish possession.

29 One further argument raised by this appellant is more difficult. During the detention of the appellant, the investigating guards, eventually, invoked both s. 18 and s. 19 of the Criminal Justice Act 1984, (as substituted by ss. 28(1) and 29(1) of the Criminal Justice Act 2007). Accordingly, the court considered that Mr. Fitzpatrick’s refusal to account for the items in his possession was something which corroborated the other evidence of possession.

30 Section 18, as substituted, now provides as follows:-

“18 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—

(i) on his or her person,

(ii) in or on his or her clothing or footwear,

(iii) otherwise in his or her possession, or

(iv) in any place in which he or she was during any specified period,

and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

(4) Nothing in this section shall, in any proceedings—

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or

(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.

(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(9) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006 ) of the Criminal Law Act 1997.”

31 There is no dispute about the facts in this case. Here, Mr. Fitzpatrick had ample access to a solicitor during his detention. However, once s.18 was invoked he was not given a specific opportunity of consulting with his solicitor. In those circumstances, the question arises whether s.18(3) disapplies the section in circumstances where it is alleged the appellant was not afforded a “reasonable opportunity to consult his solicitor before such failure or refusal occurred”.
32 This case, Mr. Fitzpatrick was arrested at 1.30a.m.on the 9th September, 2008. He was interviewed for two sessions between 2.27p.m. to 4.46p.m. and again from 6.00p.m. to 7.24p.m. During the second interview he requested to see a solicitor at 7.05p.m. This request was complied with and he was visited by a solicitor in the station at 8.04p.m., who stayed with him until 9.50p.m. Following this consultation, he was again interviewed from 10.50p.m. to 11.39p.m. The following day he was again interviewed from 9.15a.m. to 10.47a.m. and this interview was interrupted by a telephone consultation with his solicitor at 10.03a.m. He was interviewed again from 12.07p.m. to 12.23p.m. and this interview was also interrupted by a telephone conversation with his solicitor at 12.19 p.m. which was followed by a visit from his solicitor to the station at 1.13 p.m. lasting until 2.00 p.m. During his next and sixth interview, s.18 of the Criminal Justice Act 1984 was invoked. By this stage the appellant had received two visits from his solicitor and had two telephone consultations with him. Indeed, his solicitor had just left at 2.00p.m. and the interview commenced almost half an hour later. The appellant requested to speak to his solicitor at 2.37p.m. and a message was left for the solicitor. Later in the interview he stated: “I would like to say I don’t want to comment until I have consulted with my solicitor” and he was advised that his solicitor had been informed and he was required and they were awaiting his call to the station. Very shortly afterwards, at 3.35p.m., the provisions of s.18 -of the Act of 1984, as substituted, were invoked. The appellant failed to account for the items found in the apartment.

33 No evidence was given by either the solicitor or the appellant in relation to their dealings. In particular, the solicitor did not give any evidence as to whether he had advised Mr. Fitzpatrick in relation to s.18 during any of his four consultations with him. It is no clear that the point raised has any substance in reality rather than theory. Furthermore on Day six of the trial it was recorded that the accused had been served with a notice of additional evidence to the effect that on the evening of the 9th November, Detective Superintendent O’Sullivan had spoken to the solicitor for the accused and informed him of the Gardaí’s intention to invoke ss. 18, 19 and 19A. In the event this evidence was not adduced. It is, however, common case that after the section was invoked, the appellant was not given the opportunity of consulting with his solicitor. The gardaí apparently took the view that he had already four different consultations with his solicitor and, accordingly, the literal words of the section had been complied with; he had not only been given a reasonable opportunity of consulting with his solicitor, he had consulted with him on four occasions during his detention. The case on behalf of the D.P.P. was summarised in written submissions filed on his behalf in the following terms:-

“It is submitted that all of the evidence in the case tends to show that the Applicant was afforded full and generous access to his solicitor, that considerable care was taken to explain s. 18 to him that he understood the meaning and import of that provision.”
Pointing out that the relationship between a solicitor and client was privileged, the submissions continued:-
“The obligation of the gardaí is to explain the provision to the suspected person and to allow access to legal advice. The nature and extent of that advice is a matter for the suspected person and their lawyers. Inadequacies in relation to the advice given or a failure on the part of the suspect to understand advice are not a matter for the gardaí although they may well feature in the course of trial.”
34 The essential question for this Court to resolve remains whether a reasonable opportunity to consult his solicitor must occur in relation to the inference to be drawn under s. 18 so that the opportunity is afforded either after the section is invoked, or perhaps where a solicitor is informed in advance that the section may or will be invoked. On the case advanced by the D.P.P., and accepted by the Special Criminal Court, it was sufficient merely that the accused person have reasonable access to a solicitor while in custody. The section, it was said, did not require a solicitor to do anything during that time. In any event, the content of any such consultation was privileged. Accordingly, all that the Act could and did require, it was argued, was that an opportunity be given for access to a solicitor in advance of the section being invoked. It was not necessary that the opportunity for consultation be related to the s. 18 request.
35 The provisions of s. 18 of the Act of 1984, as substituted, must be understood in their historical and constitutional context. The right to silence has been an established part of the common law system of criminal procedure. However, legislative restrictions of the right have become more common in the latter part of the 20th century. Section 52 of the Offences Against the State Act 1939 created an offence of failing to account for movements. The Criminal Justice Act 1984 included sections 18 and 19 which, for the first time, introduced a power to draw inferences from a failure to account for objects found, or the presence of an accused at a particular location. However, that the provision was somewhat narrow, applying only to an arrest without warrant, and apparently limited to questions by the individual arresting garda, and accordingly it appears the provisions were little used. During the 1990s, in parallel with developments in the United Kingdom, there were further legislative changes. The Criminal Justice (Drug Trafficking) Act 1996 and The Offences Against the State (Amendment) Act 1998 introduced “failure to mention” provisions. Ultimately, a provision of more general application was included in s. 28 and s. 29 of the Act of 2007, substituting new ss. 18 and 19 in the Criminal Justice Act 1984, and in the case of s. 28 introducing for the first time the provisions in subs. 3, that the provision would not have effect unless the accused was told in ordinary language of the consequence of failure to refuse to account for the matter and was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

36 At the same time there were significant developments in the jurisprudence on this area both in domestic courts and in the European Court of Human Rights, which dealt with both the significance of the right to silence and the manner in which legislation restricting the right should be analysed. In Heaney v. Ireland [1996] 1 I.R. 580, the Supreme Court accepted that the right to silence was a constitutionally protected right, but agreed with the landmark judgment of Costello J. in the High Court, that it could be restricted by measures which satisfied a proportionality test. In Rock v. Ireland [1997] 3 I.R. 484 the court applied a similar analysis in rejecting a challenge to ss. 18 and 19 of the Criminal Justice Act 1984. In People (D.P.P.) v. Healy [1990] 2 I.R. 73 the Supreme Court accepted that there was a right of reasonable access to a solicitor on the part of a person in custody, and that that right was derived from the Constitution and was not merely statutory in origin. Furthermore, that right imported an entitlement to be informed of the right. The right of access to a lawyer was seen both in Ireland and in the European Court of Human Rights as a necessary safeguard in circumstances where extended powers of detention were being permitted, along with statutory restrictions on the right to silence. Accordingly, in People (D.P.P.) v Healy Finlay C.J. observed at p.81:-

“The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of a detained person and his interrogator.”
37 At European level, the importance of the right to silence has also been emphasised. Indeed, in Heaney v. Ireland the European Court of Human Rights held that s. 52 of the Offences Against the State Act 1939 was incompatible with Articles 6.1 and 6.2 of the Convention. In Murray v. United Kingdom [1996] ECHR 3 the court held that a denial of access to a lawyer during the initial stages of an interrogation was itself a breach of Article 6. Referring to the fact that under the Criminal Evidence (Northern Ireland) Order 1988 adverse inferences could be drawn at the accused’s trial if he elected to remain silent, the court stated at para. 66:-
“It observes in this context that under the Order, at the beginning of police interrogation, an accused is confronted with a fundamental dilemma relating to his defence. If he chooses to remain silent, adverse inferences may be drawn against him in accordance with the provisions of the Order. On the other hand, if the accused opts to break his silence during his interrogation, he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences been drawn against him. Under such conditions the concept of fairness enshrined in Article 6 (art. 6) requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation. To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may not be irretrievably prejudiced is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6 (art. 6).”
38 Against that background, the issue in this case becomes a little clearer. The D.P.P. accepts that the subsection cannot be construed literally and that there is some limitation in time on the concept of reasonable opportunity to consult a solicitor. Thus the theoretical entitlement of any citizen to consult a solicitor at any time cannot be sufficient. It is necessary that that right be accorded within the regime under which the request under s.18 is made. This argument might be characterised as an argument that the opportunity for legal advice must be temporally but not casually connected to the requirement. However, it is argued that the Act could easily have provided that the accused must be afforded a reasonable opportunity to consult his solicitor after having been required to account for the object, mark or presence etc., but did not do so. It was suggested that this was for good reason. The statute could not require a solicitor to attend or to consult, still less to advise. Furthermore, the court could not inquire into the content of any such consultation. Accordingly, it was said that the Act imported a requirement in deliberately general terms; that the appellant had a reasonable opportunity to consult a solicitor, but such opportunity need not be linked to the request to account under sections 18 or 19.
39 On behalf of the appellant, it was pointed out that since 1990 it had been established that there was a constitutional right to reasonable access to a solicitor. Accordingly, to interpret the subsection in the manner contended for by the D.P.P. would render it no more than surplusage since it would do no more than restate what was already the general law. If the accused was not afforded reasonable access to a solicitor while detained, then not only would the answers to the s.18 request be inadmissible, but his detention would be unlawful, and anything said during that period would be inadmissible during evidence.

40 It seems clear that subs. (3)(b) is intended to act as an important safeguard in the operation of s. 18. However, it is not easy to interpret the section as a coherent whole. The syntax itself is a little awry, particularly where it speaks of the failure or refusal to “give an account, being an account which in the circumstances clearly called for an explanation from him or her when so questioned charged or informed…” Furthermore, the practical operation of subs. (3) raises difficult questions. Unlike its statutory predecessors, there is no requirement that the questioning of the accused person take place in custody. In theory, it is possible to make a demand for an account of objects, marks or presence when an individual is questioned by a member of the gardaí in public. It is difficult to see how subs. (3)(b) could operate in such circumstances. Accordingly, it may be that the section is the product of an eclectic process of amendment, rather than a product of one overall coherent approach.

41 Looked at functionally, however, the section seems to envisage the opportunity of consultation at or around the same time as the request for an account. If the reasonable opportunity to consult a solicitor cannot be interpreted literally to mean an opportunity on any occasion (and it is conceded, correctly, that it cannot) it is difficult to see how it could be intended that the opportunity should be given before a s.18 or s.19 request is invoked, and without knowledge that they are likely to be invoked. The whole structure of subs. (3) seems to imply that the opportunity for consultation under subs. 3(b) should be given at or around the same time as the explanation in ordinary language required under subs. (3)(a), since both provisions are contained in the same subsection and linked by the conjunction “and”. Since subs. (3)(a) can only occur just before, or just after, the making of a request for an account under s. 18, then it should follow that subs. (3)(b) must occur within the same timescale, and be similarly linked to the making of the request for an account. Again, this makes some sense. It is for the member of the gardaí to inform the accused in ordinary language as to the general effect of a failure or refusal, and it is for the solicitor to advise the accused as to the potential impact in the particular circumstances of his own case. Accordingly, an approach to the language of the section in the context of the section as a whole suggests that the opportunity must be given to consult in relation to a s.18 request. That normally means that an opportunity be given after the section is invoked, but it might also be satisfied by an opportunity to consult when the gardaí have informed the accused and his solicitor that the section may be invoked. (Indeed it appears that at one stage in the trial it was proposed to adduce evidence to the effect that the solicitor for the applicant had been informed that it was proposed to invoke s. 18. However that evidence was not adduced and the case has been argued on the basis already set out.) Finally, the formulation of the provision which refers to a reasonable opportunity to consult, as opposed to the phrase then commonly used which refers to the right of reasonable access, suggests the section requires more than a general opportunity of speaking to a solicitor. It implies that the solicitor can be consulted for advice, which suggests that the matter in respect of which advice is to be given is the s.18 request. That advice cannot be given unless the client and solicitor know and are informed that the section has been, or is likely to be invoked. On this approach, it would not be sufficient to prove that the reasonable opportunity to consult a solicitor arose before the request was made and when neither the appellant nor his solicitor necessarily knew that the section was likely to be invoked. If the reasonable opportunity to consult provided for under subs. (3)(b) must be linked in time to the invocation of s.18 and the making of a request thereunder, then there is no reason why it should not be linked in purpose aswell.

42 When the section is placed in the context of the constitutional and Convention jurisprudence, then that conclusion becomes, if anything, clearer. The provision of s.18(3)(b) is intended to act as a safeguard in respect of a provision which operates as a significant interference with the suspect’s right to silence. Furthermore, the terms of the caution which is still administered to suspects in Ireland provides as follows:-

“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.”
The terms of this caution have not been adjusted in the light of the statutory provisions referred to above. Since, however, the provisions of s. 18 and s. 19 mark a significant departure from this information given to the accused when cautioned, it is entirely appropriate that advice should be available to the accused in relation to the position which obtains once s. 18 has been invoked. Taking the approach set out in Heaney v Ireland, and Rock, it seems clear that if there is any ambiguity in the interpretation of the section, then an interpretation should be preferred which seeks to ensure that advice is given in respect of the provision as it applies to the suspect in the position in which he or she finds himself or herself, rather than by simply providing for access in general at some stage, connected in time, but not in purpose, to the making of the statutory request. In the circumstances, therefore, this Court is unable to accept the interpretation of the section advanced by the D.P.P. It is accepted, in this case, that after the section was invoked at 3.35p.m. that no opportunity was given to this appellant to consult with his solicitor. Indeed, he had specifically said that he did not want to answer anything until he had consulted with that solicitor. Accordingly, the Court must conclude that the procedure here fell short of what was required on a true interpretation of section 18.
43 This conclusion is regrettable, since the statute is an important part of the armoury of the State when dealing with serious crime. It is also noteworthy that in this case the trial court was also obliged to rule as inadmissible certain statements made by the appellant pursuant to a request made under s. 19 because it was clear that the statutory preconditions for that request had also not been complied with. It is worth recalling the observations of Murray C.J. in D.P.P. v Bryan Ryan [2011] IECCA 6, (Unreported, Court of Criminal Appeal, 11th March, 2011):-

“This is by no means an unusual ruling in criminal trials generally including those concerning the most serious of offences such as murder…The frequency therefore with which garda interviewing practices have resulted in otherwise important evidence being rendered inadmissible for such breaches is surprising and to be regretted. The situation would suggest that there was some lack of coherent practice or training of garda officers as to the manner in which arrested persons should be treated so as to ensure that the full and substantive effect is given [to] the right of access to a solicitor, having regard to established principles of the law applicable to such a right including principles stemming from the case-law of the European Court of Human Rights.”
44 There is a case for the streamlining of the Act so that it operates in a coherent and comprehensible way. Furthermore, as a matter of practice, the question of the appropriate caution should be reviewed, and it ought to be possible to give simple guidance to interviewing gardaí so as to ensure that where it is considered appropriate to invoke the procedures under sections such as this, that such invocation is effective. However these conclusions are not the end of this appeal.
45 Section 3 of the Criminal Procedure Act 1993 provides:-

“3(1) On the hearing of an appeal against conviction of an offence the Court may-
(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred).”

46 The proviso has been part of Irish law since the creation of the Court of Criminal Appeal. It does not, however, invite a court of appeal to make its own value judgment as to the guilt or innocence of the appellant. If there has been a fundamental error in the conduct of the trial and there has been a lost chance of acquittal, then the court cannot apply the proviso simply because it is of the opinion that under the proper trial the appellant would have been convicted. If a departure from the essential requirement of the law has occurred that goes to the root of the proceedings, then the appeal must be allowed. However, it cannot be said here that the proceeding was fundamentally flawed. The significance of any inference to be drawn under s.18 may depend upon the particular facts of individual cases. Most often, as the section itself recognises, its main effect will be to provide corroboration where that is required either by a rule of law, or by the general practice of the courts in respect of particular offences. Here, however, there was no question of the evidence against the accused requiring corroboration either as a matter of law or practice. It was direct and compelling evidence of involvement in the preparation of bombs. It bears repetition that this appellant at 1:20a.m.. in the morning, in an apartment in Dublin, in which bomb making material was on open view, and where he was in the bathroom with his co-accused and more bomb making equipment, and where he and his co-accused were wearing latex gloves and where he was seen to drop an alarm clock from his hand when the gardaí came into the apartment. The court quite properly rejected the patently threadbare and contrived account offered by the appellant. The provisions of s.18 had no part to play in that assessment. Due to the fact that the trial took place in the Special Criminal Court, we have the benefit of the detailed reasoning of that court rather than the simple verdict of a jury. Accordingly, while this Court is satisfied that this point might have been decided in favour of the appellant, it is also satisfied that in all the particular circumstances of this case no miscarriage of justice has actually occurred and will accordingly refuse the appellant’s application for leave to appeal against his conviction.

Attorney-General v. Murray.

[1926] IR 266 Court of Crim. App.

The judgment of the Court was delivered by O’Shaughnessy J.

O’SHAUGHNESSY J. :
13 July

The appeal before this Court is from the refusal of Mr. Justice Hanna to grant a certificate (that the case is a fit case for appeal) to James Murray, who was tried and convicted at the Central Criminal Court for the murder of Joseph Bergin. The 32nd section of the Courts of Justice Act, 1924, states the grounds on which such an appeal shall be granted. The case has occupied a considerable time, but the questions discussed may be summarized under the heads of misdirection, the reception of inadmissible evidence, and the trial being unsatisfactory. The murdered man’s dead body was found in the canal at Milltown bridge, in County Kildare, about 380 yards from the Newbridge main road, on the morning of Friday, December 14th, 1923. Sergeant Hackett, who removed the body from the canal, stated that when it was found there were no boots or socks on the feet, and hanging round the neck was the belt of a trench coat, a pair of braces, and a handkerchief. In the pocket of the dead man was found a pass giving him permission to be absent from his quarters at the Curragh from 7 a.m. to 9.30 p.m., to proceed to Kildare in civilian clothes, and it was signed in the name of Captain Murray.
It was not suggested by counsel for the State that this pass was signed or purported to be signed by the prisoner, and the document was produced and put in evidence only as a document found on the body of the deceased. Captain Patrick Murray, who was one of the officers in command at Tintown Camp, was called, and stated that the signature to the pass was not his, and that he was the only officer of the name of Murray in the camp at the time. The jury were carefully informed by the Judge during the course of the trial that the pass had not been signed by the prisoner. Mr. Justice Hanna said:”The signing of that pass had no concern with the prisoner at all”;and it was admitted in evidence only as a document found on the body of the deceased. The Court is of opinion that there is no substance in the 13th and 14th grounds in the notice of appeal, which relate to this forged pass.
At the trial a large and impressive body of evidence, to connect James Murray with the crime, was given by the prosesecution, and it is unnecessary to do more than indicate in merest outline its purport. In December, 1923, Colonel Michael Costello was Director of the Army Intelligence Department, and had been in that position since the previous October. The prisoner, James Murray, who had been serving in the army for a number of years, was attached to serve in the Intelligence Department, and was, at the latter end of 1923, serving under Colonel Costello. About that time doubts seemed to have been entertained as to the loyalty of Joseph Bergin, one of the military police at Tintown Camp, who was suspected of carrying information from and to the internees. Colonel Costello entrusted to James Murray certain confidential papers relating to this man. On December 13th Murray made a verbal report to Costello that Bergin was in Dublin, and Costello then directed Murray to proceed to the Curragh, to intercept Bergin and interrogate him. A motor-car was placed at Murray’s disposal, and he drove off from Costello’s office at about five o’clock on the evening of December 13th, accompanied by two civilians whose names, Colonel Costello stated, he did not know. The driver of the car, Driver Cleary, was instructed to hand over the car to Murray when he had driven out of the barracks. Murray took over the car from Cleary, and went away with his two companions. Evidence was given by two witnesses, namely, James Kelly, a ticket-checker on the railway at Kildare Station, and Sergeant Patrick Nolan, the mess sergeant of the officers’ mess at Beresford Barracks at the Curragh. The former deposed that he saw the prisoner that night about 8.30 p.m. in the bar of the Railway Hotel at Kildare, and the latter stated that he saw him in the officers’ mess in the barracks later on that same evening. Miss Peggy Daly, who resides in Kildare, deposed that Joseph Bergin (the murdered man), whom she knew, called at her house on the morning of the 13th, and left his bicycle there. He called again at night at about 8.30 o’clock, stayed 20 or 30 minutes, and took the bicycle away. Evidence was given from which it was inferable that the deceased was shot in an empty house called “Ennis’s vacant house,” near the Thomastown cross-road, a few miles from Kildare, and that the dead body was carried to Milltown bridge, about six miles away, and thrown over the bridge into the canal.
Evidence was also given for the prosecution that the marks made by the tyres on the road leading to and from the empty house corresponded to the marks that would be made by the tyres of the motor-car that was handed over by Costello to the prisoner. Next morning (14th December) at about 8 o’clock the prisoner came to Colonel Costello at his billet in Portobello Barracks. He told Costello that he had got on all right, that he had got a number of documents on Bergin, that he (Bergin) had been with Carolan (an important “Irregular”), that Bergin had made a confession, and that he (Murray) had left the car at Crown Alley. Costello instructed Murray to have the documents sent to him that evening, with a report of his investigations. Subsequently on that day the car was found at Crown Alley, and evidence was given that there were traces of blood upon it.
The case on behalf of James Murray was that he did not go to Kildare at all that evening. He stated in his evidence that he was asked by Colonel Costello on the evening of the 13th to drive two strange men in the motor-car, that he was told that these men had the necessary instructions, that after he started he became suspicious of the objects of the expedition, and that he refused to go, and went back to Portobello Barracks. Later, he spent the evening with his brother, Michael Murray, a Commandant in the army, and a man named Patrick Kinsella. Both these men were called, and corroborated the story of James Murray. Frances Murray, a sister of James Murray, stated that he came to her mother’s house in Dun Laoghaire that night at about eleven o’clock with Michael, that they slept there that night, and that James left the house next morning early. James Murray stated in his evidence that he had gone in with the car, which called at 6.30 the following morning, and that he reported to Costello that he had papers given him by the two men who drove in the car.
The above is a mere outline of the case. It does not profess to be a full statement, nor to deal with discrepancies, real or not, upon which Mr. Gleeson commented so very vigorously. Suffice it to say that the evidence in full for the prosecution (if believed) was coercively conclusive on the issue the jury were empanelled to try.
Of the grounds in the notice of appeal, the 15th ground refers to a number of alleged contradictions and inconsistencies in the evidence. It is sufficient to state the Judge’s charge was of the fullest and fairest character. Nothing could exceed the scrupulousness with which he summarised and compared the evidence of the witnesses, both for and against the prisoner and of each other, placing the important points and every view before the jury in language plain and clear. He impressed on them time and again the nature and the effect of the evidence, and directed their attention to the real issue, whilst practically he indicated no views of his own.
The reliance was chiefly on two matters in argument here, to which it is necessary now to refer, and on which the result of this application really depends.
The first consists of an exception taken to the following passage in the learned Judge’s charge, which, it is contended, is a misdirection:
“So I can give you no guide as to what principle you apply other than to say you draw inferences from the facts as you draw them in ordinary life in connection with your own personal concerns, save that if you have any reasonable doubt as to the inferences you are asked to draw, then the prisoner is entitled to get the benefit of it. The whole of the administration of our criminal law is based upon giving the prisoner the benefit of the doubt. When a point is raised before a Judge, his natural instinct is to give the prisoner the benefit of the doubt, if he has any, as to the point. The jury are bound in law to give the prisoner the benefit of the doubt; and when the case would go to the Court of Appeal, the natural bent of their minds is to give the prisoner the benefit of that doubt.”
It is argued that this statement is a misdescription of the functions of the Court of Appeal, and tended to lessen the jury’s sense of responsibility, and was misdirection of such a character as to render the trial unsatisfactory. Whilst references to the Court of Appeal by a Judge in his charge to the jury are inadvisable, and it would be desirable if such references were not made, it is obvious, however, that in this particular instance the learned Judge’s sole object was that of impressing strongly on the minds of the jury the necessity of giving the prisoner the benefit of any doubt that might exist, and he pointed out that that principle runs through the whole administration of the criminal law. The doubt might be a doubt a Judge entertained on the law, or the doubt that a jury might have on the facts. In either case, and in all cases, the prisoner must get the benefit of it. Earlier in his charge the learned Judge had, in most impressive words, warned the jury that the fact that there was now an appeal to the Court of Appeal “does not lessen our responsibilities; it only lessens our anxiety”; and then he went through the whole of the evidence, analysing it most carefully, and drawing the jury’s attention to their responsibility in regard to each item of it; and he concluded his charge with an earnest appeal to the jury that they were not to set the prisoner’s case aside “unless you are each individually satisfied beyond reasonable doubt that the truth of the case for the State compels you to do so.”
The Court is of opinion that the objection is unsustainable, and the words used in their proper context, that is, treating the charge of the Judge as a whole, do not justify the contention urged upon the Court.
The main grounds relied on are set forth in the first 10 heads in the notice of appeal. It appeared in evidence that shortly after the finding of the body of Joseph Bergin (the Monday after), James Murray disappeared. He went to Liverpool, and thence to Glasgow, where he remained for some time; and later to Buenos Ayres, where he arrived on May 10th. In October he returnedhe states to Glasgowon the 15th or 16th of December; and then he states he came back to Dublin. He was arrested on December 23rd. It is unnecessary to say more as regards the departure of the prisoner from Ireland than that the circumstances under which he left were relied upon by counsel for the State; and the prisoner’s counsel sought by evidence and comment to show he was absent under an arrangement with Colonel Costello. While he was away, four letters of a very remarkable character reached Colonel Costellothose letters appear in some respects to lead up to and throw light upon the controverted document.
The first letter (marked “D”) is as follows:
“To M., I have been thinking over the advisability of attempting to deal direct with the ‘P.’ and ‘M.D.’ regarding my case. Of course this would have to be very carefully thought over before any move is made, and would only be necessary in the event of there being no prospect of my returning to military duty, say, during the next year. My plan is roughly:to get a reliable clergyman to see P., and find out his views on the case, also to do likewise with the M.D. Then, as the thing would develop, I could place copies of all the captured stuff before them, with a statement to the effect that ‘B.’ was tried by Drumhead Courtmartial, and found guilty on his own statement. All this would necessarily be done under a promise of secrecy; and, in the event of their not being willing to reinstate me, I am sure they would make an offer of a settlement of some description. In any event, if the thing broke down completely no harm would have been done. In fact, it might do a lot of good, inasmuch as it would show them that I am not willing to let the matter rest, as has been done up to the present. My position at the moment is, that were it not for the fact that you would get yourself mixed up in the thing, I would be perfectly willing to place the full facts of the case before the public, and accept their judgment, no matter what sacrifice it might entail.
Having expressed these views, I think it would be a very good thing if you met me on this side any time at your own convenience and discussed the matter fully, exploring every possible channel which might be useful towards fixing the thing up, as I am sure a settlement would strengthen your position as much as mine, and, if they made an offer, no matter how little, it would give us a lever, as they would then have hopelessly compromised their position, and would have to give way to my demands for a settlement.
You will understand that I do not wish to embarrass you in any way, and I am willing to take your instructions regarding this matter, as I have done in every case up to the present, and I am only putting this plan to you in the nature of a suggestion, by which we can both find a way out of a very difficult position.
Before seeing you I would like to be in possession of the following information:What is the M.D.’s attitude, and reason for it? What is ‘R.’s’ attitude? How much do they know? Has Davie received orders for my apprehension? Have they circulated a photo or good description? Have they been sent on to the Yard? Have G.O.C.’s Commands received instructions for my arrest? Have Staff Duties been notified that I am missing? Have I appeared in orders as missing? What are the chances of getting copies of the finger prints, with a view of comparing them with mine? What are the chances of destroying C.G. records?
I will close now for the present, hoping that above scheme will meet with your approval, and that I shall be seeing you in the near future. Yours sincerely, ‘J.’
P.S.You can discuss the matter fully with bearer, as I have told him everything except that any person had knowledge of the thing before it was carried out. ‘J.'”
The second letter (Document “C”) is as follows:
“To M., I have been speaking to our friend, and am greatly surprised at your attitude regarding the proposal which I outlined in my last communication. However, I have decided to put the thing through on my own, and will start working on it immediately. I do not see how I can possibly do any harm in going ahead with it, and if I do not make some attempt to rectify matters I will be a hunted man for the rest of my life. You on your part, as far as I know, have done nothing to settle things. You did not even think it worth while to accede to my request for an interview, consequently I am obliged to withdraw the pledge of obedience to your orders which I have given. This does not mean that I am going to let you down, but it certainly does mean that I am going to use every means in my power to effect an understanding with the Government. Regarding your proposal to cross the Atlantic, I treat this with the contempt it deserves, as I look on it as a very poor attempt to get me quietly out of the way.
I hope, M., that you will consider this action in the light in which it is taken, as you know I am the only one that is paying the penalty, and as such I certainly am entitled to take such action as I think necessary for my own welfare, as long as I do not let any one down in doing so. To tell you candidly, my opinion of the whole matter is, that you are letting the thing play on your nerves, and consequently are not asserting yourself as you should do. I am very sorry to see that you are letting it wear you down as it has done, as I had, and still have, every confidence in your ability to strike out a plan of action, if you will only pull yourself together, and not let the situation overawe you. I am, yours sincerely, ‘Jimmy.'”
The third letter (Document “B”) is as follows:
“Dear M., with reference to my letter of to-day’s dateyou will no doubt have been surprised at the sudden change in front on my part. Well, the reason for that change is that certain things were pointed out to me, in a letter which I received to-day from Michael. These I will not discuss, as he will probably have seen you before you receive this, and will have told you a lot. Whilst accepting full responsibility for my purposed action, which may have seemed to you to be rather hasty, I, although realising that certain forces have been at work to cause me to take that action, believe that the situation could have been avoided if you had written to me, or sent over someone capable of expressing your views.
In the first place I told M. O’C. to inform you, when we went across the first time, that if you could put me on his staff at £5 per week, I would undertake to bring my wife to Glasgow temporarily, and thereby make things easier for you, as you would not have to provide any other funds.
I went into this matter fully with him, and he agreed that if you gave permission, he could do away with one or two men here, so that there need be no increase in his weekly cheque. This plan seemed to be a perfectly feasible one, and I thought
you would be willing to endorse it. When he returned he told me that you had absolutely turned it down without giving any reason for doing so.
I further told him that, when submitting to you my proposal regarding writing to P., he, in the event of your turning it down, should obtain your views on the whole matter. His answer to me was that you had nothing to say on the matter beyond the fact that you could not agree to my proposal.
Then again I had to consider 1, your repeated proposals that I should go to the States; 2, my wife writing to me for money; 3, you either consciously or unconsciously withheld four of the most important of the ‘B.’ papers from me. These things, together with the reports that I was getting, to the effect that you were getting afraid of the situation, forced me to decide on a definite and independent course of action, in the event of your not coming up to scratch.
I am not making an apology for my attitude, but am merely stating the main points which led up to my adopting it. I hope that when you receive this, you will write me, and let me know exactly what your attitude is. You know I am absolutely in the dark regarding your views, and I would be very thankful to have them. It would also be advisable, in the event of your writing, to address your letter to 41. Michael will give you full address. I would also welcome the chance of meeting you, and talking things over, as I am sure that a ten minutes’ conversation would show us both exactly how we stand.
It is a rotten thing that I should be jockeyed into the position of treating you unfairly, and I believe that if, in future, you communicate with me directly, these misunderstandings will vanish, and that no fresh ones will be created.
I am keeping an open mind on the matter, and will not, in any way, alter the attitude I am now adopting until I hear from you. But I may tell you candidly that if you do not reply to this letter, I will surrender for trial. My reason for doing so is that if you let me down, I could never again trust anyone. This would only mean that it would be far better to go through with it, win or lose, than be constantly waiting for the next to let me down. I remain, yours sincerely, Jimmy.
P.S.There are a lot of details which I would like to mention but will do so at a more appropriate time. ‘J.'”
The fourth letter (Document “A”) runs as follows:
“Dear ‘C.,’ just a few lines to let you know that because of certain circumstances over which I have no control I have been obliged to cut short my tour of the southern hemisphere, and as the period of one year for which you requested me to remain absent has almost expired, I would like to have an interview with you regarding my future action. For this purpose I intend to visit Dublin as soon as I have made the necessary arrangements regarding ‘digs,’ etc., and I can assure you that it would be to our mutual advantage to arrange an interview with me. I will not say anything further at present, as if you meet my wishes in the matter we will be able to go into everything, and thereby clear up the whole situation. Yours sincerely, Jimmy.”
These four letters were proved and admitted to be in the handwriting of James Murray. There is no controversy whatever about the authenticity of these particular documents. The theory put forward on behalf of the State is that they afford evidence of the prisoner’s guilt, that they were written designedly by the prisoner to implicate Colonel Costello in the crime, with the idea that by doing so the Government would not, if he came back, prosecute him for murder.
Mr. Carrigan, in his able cross-examination, put the matter in this way:”If I say that these series of letters are nothing but an attempt to bring pressure to bear on the heads of the State in the country to screen you from the consequences of your crime, would that be true?” The prisoner said it would not be true.
Mr. Gleeson, in the course of his cross-examination of Colonel Costello, in, reply to the Judge’s question, stated that he did not suggest that Colonel Costello was any party to the murder. Mr. Carrigan, in his cross-examination, asked James Murray the following question:
“You are the one innocent man of the four. The two men who went out in the car and Colonel Costello were the men who did it, and you went home that night and had no connection with it. Is that your case?”
The prisoner replied: “Yes, that is my case.” He also stated at a later stage that he had given no instructions to his counsel to exonerate Colonel Costello.
The respective views of these letters in the evidence of Colonel Costello and James Murray were for the jury, who were entitled to consider them.
In document “B” the prisoner said: “But I may tell you candidly that if you do not reply to this letter, I will surrender for trial. My reason for doing so is that if you let me down, I could never again trust anyone. This would only mean that it would be far better to go through with it, win or lose, than be constantly waiting for the next to let me down.”
In document “C” he said: “If I do not make some attempt to rectify matters, I will be a hunted man for the rest of my life.” Again: “I hope, M., that you will consider this action in the light in which it is taken, as you know I am the only one that is paying the penalty, and as such I certainly am entitled to take such action as I think necessary for my own welfare, as long as I do not let anyone dawn.” He then calls upon Colonel Costello “to strike out a plan of action.”
Letter marked “D” is a remarkable document. It was admitted in evidence that the letter “P.” meant the President, and “M.D.” meant the Minister of Defence; and it was clear that ‘B.’ was a reference to the murdered man, Bergin. The plan outlined in that letter was that the prisoner was to “place copies of all the captured stuff” before “P.” and “M.D.” The prisoner admitted at the trial that the “captured stuff” (that is, the documents found on Bergin) was still in his possession or procurement. He had stated in his evidence that he had received it on the morning of December 14th, 1923, from the two strange men who had gone off in the motor-car.
He stated also in document “D” that the copies of the”captured stuff” that were to be placed before the “P.” and the “M.D.” were to be accompanied by a “statement to the effect that ‘B.’ was tried by drumhead court-martial and found guilty on his own statement.”
In the same letter is stated a matter of the utmost importance in view of subsequent events:”My position at the moment is, that, were it not for the fact that you would get yourself mixed up in the thing, I would be perfectly willing to place the full facts of the case before the public and accept their judgment, no matter what sacrifice it might entail.”
Later he said: “If they made an offer, no matter how little, it would give us a lever, as they would then have hopelessly compromised their position, and would have to give way to my demands for a settlement.”
He states that he puts the plan before Colonel Costello “in the nature of a suggestion, by which we can both find a way out of a very difficult situation.”
The “information” that he asks for at the end of the letter, though in the form of questions, is capable of being regarded as of a most incriminating character. The question, “Has Davie received orders for my apprehension?” referred to Colonel Neligan, of the Civic Guard.
The following questions have their own significance:
“Have they circulated a photo or good description?”
“Have they been sent on to the Yard?”
“Have Staff Duties been notified that I am missing?”
“What are the chances of getting copies of the finger prints with a view of comparing them with mine?”
“What are the chances of destroying C.G. records?” (It was suggested that “C.G.” was a reference to the Civic Guard, and that Michael Costello was to destroy all the records of the crime.)
The postscript is capable of bearing a very sinister construction: “P.S.You can discuss the matter fully with bearer, as I have told him everything except that any person had knowledge of the thing before it was carried out.J.”
James Murray was called by his counsel as a witness in his defence, with all the risk as regards cross-examination that is attendant upon that course. He was skilfully cross-examined by Mr. Carrigan in regard to his movements on the date of the crime and subsequently, and on the four admitted letters already in evidence; and he was asked if he had contemplated making a statement to the effect that Bergin had been tried by drumhead court-martial and found guilty on his own statement; this he admitted, but subsequently denied that he had written a statement of the facts that he was going to put before the public.
The following questions were asked by the Judge during the course of the cross-examination:
“829. MR. JUSTICE HANNA: You said you would try by any means in your power to effect a settlementwhat settlement? To make some settlement with the Government.
830. MR. JUSTICE HANNA: To make some settlement with the Government? Yes.
831. MR. JUSTICE HANNA: That the Government were to agree, if you came back to this country, they would not prosecute you for murder? Yes.
832. MR. JUSTICE HANNA: Is that the idea? Yes, that was the idea.”
At a later stage of the cross-examination another document was put into his hands (document “E.”). At first he said: “It is like my handwriting.” Then he was asked: “Did you, for the purpose of making a statement to the public, or for any purpose, write a statement in your own handwriting to this effect?” The following document was then read to the prisoner:
“Statement of Captain James L. Murray regarding the shooting of Private Joseph Bergin.
On or about the 6th of December, 1923, I was informed by Colonel Costello, Acting Director of Intelligence, that Private Bergin, stationed at Tintown Camp, was in the pay of the Irregulars’ D.T. He instructed me to proceed to the Curragh and make inquiries, with a view of finding out the line of communication between B. and Irregular G.H.Q.
On Monday, 10th December, I again saw Colonel Costello at his office. He, on this occasion, told me that Bergin would have to be shot, as he was a very dangerous man. I replied to the effect that I was willing to carry out any orders he thought necessary. It was then arranged that I should go to the Curragh next day and report to him on the possibility of doing the job in such a way that the military would not be suspected. My brother, Commandant Michael Murray, was present at this interview.
I proceeded to the Curragh on the 11th, as instructed, and returned on the following day. I reported to Colonel Costello that it would be impossible to carry out his orders unless provided with a motor-car. He then said he would supply the car at 4 p.m. on the following day. Next day, 13th, I reported to Colonel Costello, accompanied by two men. He brought us to a Ford car which was waiting outside the office, and instructed the driver to take us a short distance outside the barracks, and hand the car over to me. I then drove to Kildare and picked up Bergin, whom I placed under arrest. I drove him to an empty house at Thomastown cross-roads, where I interrogated him, as instructed, during which he made a statement admitting his connection with the Irregulars. At this stage he was searched, and a large number of despatches addressed to the prisoners’ O.C.’s of the Internment Camps were found in his pockets. Also a personal note from Irregular Director of Intelligence. Bergin was then shot, and his body taken to Milltown Bridge and thrown into the canal.
The car was then driven back to Dublin, where it was left outside the guard-room at Crown Alley. I then reported to Colonel Costello at Portobello Barracks, at the same time handing over to him, unopened, all of the captured papers.
Later in the day I sent him a typewritten report confirming my verbal report made that morning.
I again saw Colonel Costello on the same afternoon, and he informed me that the body had been found and identified. I did not take very much notice of this, as I thought that the job was one of the usual unofficial executions. Nothing of importance transpired between this and Sunday afternoon, when I saw him at G.H.Q. He then informed me that the Civic Guard were well on the track, and stated that the position was getting very serious.
Under these circumstances I suggested that I should go away on seven days’ leave, and, if necessary, stop away in order that he should not be embarrassed by my being arrested. This step was agreed to on condition that he should look after my wife and family during my absence. My part of this agreement has been loyally adhered to; but, as he has refused to fulfil his, I do not see why I should any longer shoulder the responsibility alone.

Signed
J. MURRAY, Capt.

Witness,
M. MURRAY, ex-Comdt.”

The prisoner denied that he had written that document. He said: “It is very like my handwriting, but I never wrote it.”The prisoner’s counsel made no objection then, and the cross-examination proceeded. At the conclusion of the cross-examination, Mr. Gleeson re-examined the prisoner as to document “E.,”
when he reiterated his denial that he wrote it. A series of questions were put by his counsel, suggesting that the document had been kept back by the prosecution, and that the prisoner had never seen it until it was put into his hands in the witness box. Murray stated that throughout the entire proceedings in connection with the prosecution he had never heard of document”E.” In fact, the gravamen of the objection to the admission of this document, both at the trial and on this appeal, was that notice of the intention to use it was not given by the prosecution either to the prisoner’s advisers or to the prisoner; no reference was made to it in opening or at all until it was produced; and its production was unfair and a trap in the circumstances.
At the close of the defendant’s case two witnesses were called on behalf of the State. The first was Lieut. Arthur Quirke, an expert in handwriting, who deposed that he had carefully compared document “E” with documents “A,” “B,” “C,” and”D,” and that he had applied certain elaborate tests (which he described). The conclusion he had arrived at was that document”E” was in the handwriting of the prisoner, and that he was perfectly satisfied that all five documents were written by one and the same person. He stated also that the signature “M. Murray, ex-Comdt.,” at the end of document “E” was in the same handwriting as the handwriting in certain documents which Michael Murray, the prisoner’s brother, admitted on cross-examination that he had written.
Captain Feeney, of the Record Staff of the Intelligence Department, deposed that the first document in question had been in the custody of the Intelligence Department for about twelve months, and had been handed by him to Lieut. Quirke.
Captain Daniel Brien, an officer in the Intelligence Department, stated that he had received Document “E” from a man named Thomas Deegan, who was neither an officer nor a private in the Intelligence Department, but who had sometimes done secret service work for that department. Michael Murray, the prisoner’s brother, who was examined as a witness for the defence, stated on cross-examination that Deegan lived within a short distance from his house in Dun Laoghaire, and that he was a friend of the prisoner and of his. Mr. Carrigan asked these questions:
383. “Is he one of the private agents?” “Yes, he is Number 101 A.”
384. “And he is a friend of Jimmy’s and a friend of yours?””A friendyes.”
Counsel for the prisoner has formulated ten grounds of appeal with reference to Document “E”as to its admissibility, as to the circumstances under which it was produced on the cross-examination of the prisoner, as to the admission of the evidence of Lieut. Quirke, and as to the learned Judge’s alleged failure to direct the jury properly with reference to the whole matter. The Court has carefully considered all these grounds, and has arrived at a clear conclusion with reference thereto. The prisoner elected to go into the witness-box and become a”witness for the defence” by virtue of the Criminal Justice (Evidence) Act, 1924 (No. 37 of 1924). Having done so he became liable to be “asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged” (sect. 1 (e)). He, therefore, could be asked any question in the course of such cross-examination which might tend to criminate him as to the offence charged. The Act places no restriction on the cross-examination of a person charged who elects to be called as a witness, except that contained in sect. 1 (f), namely, that “a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he had committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character.” But even that restriction on the cross-examination of a prisoner is not to apply under certain circumstances which are set out in the Act.
One of the circumstances which renders a prisoner who has gone into the witness-box open to the risk of cross-examination as to character is where “the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution.” The charges made by the prisoner in the course of his evidence against Colonel Costello, who was the principal witness for the prosecution, have already been referred to.
Counsel for the State availed himself of his right to cross-examine Murray, and he did so with reference to his movements at the time of the crime, with reference to the statements made by him in the documents that Murray admitted, and with reference to Document “E.” The prisoner on his direct examination gave evidence that he had not left Dublin on the night of the 13th, and made other statements suggesting he was innocent of connection with the crime, and on his cross-examination he was confronted with Document “E,” which, if it was written by him, showed a former statement inconsistent with the evidence which he had given. At first he said that it was like his handwriting. Mr. Carrigan, as he was entitled to, and knowing that he could produce evidence that the document was in Murray’s handwriting, read it to him in full, and Murray then denied that he had written it. Subsequently the evidence of Lieut. Quirke and Captain Brien was tendered on behalf of the State and admitted by the learned Judge, without any objection being made nd no objection would be tenable by counsel for the prisoner.
The Attorney-General in his short, clear, and logical argument on behalf of the prosecution contends that the evidence
of these two officers, coupled with the various threats made by the prisoner in the four admitted letters, especially the threats that he was going to “place the full facts of the case before the public,” that he had “decided to put the thing through on my own,” and that he had been “forced” to decide on “a definite and independent course of action,” disposes of the suggestion of any unfair tactics in the conduct of the case. The Attorney-General further contended that the document was clearly admissible, and relied on sects. 4, 5, and 8 of Denman’s Act, 1865 (28 & 29 Vict. c. 18), which are as follows:
“4. If a witness, upon cross examination as to a former statement made by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
5. A witness may be cross-examined as to previous statements made by him in writing . . . . relative to the subject-matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the Judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.”
Sect. 8 enables comparison of a disputed writing with any writing proved to the satisfaction of the Judge to be genuine to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuineness or otherwise of the writing in dispute.
On consideration of these three sections of Denman’s Act, and of sect. 1 of the Criminal Justice (Evidence) Act, 1924, the Court is of opinion that document “E” was admissible, and properly allowed to go to the jury as a “former statement”made by Murray “relative to the subject-matter of the indictment, and inconsistent with his present testimony.”
One other of the grounds of appeal is the allegation that the learned Judge failed to direct, or misdirected, the jury as to the weight to be attached to document “E,” and as to the circumstances under which it was tendered and admitted as evidence. The Court is unable to see any ground for such a contention. The Judge was most scrupulous to place every fact and every point of view with reference to that document
before the jury, and he did so with unquestionable fairness, and with every regard for the rights of the prisoner.
We were referred during the course of the argument to Crippen’s Case (1) by counsel for Murray for the suggestion that the production of document “E” was a trap. The Court in that case affirmed the conviction, but the case is interesting from a passage to be found in the judgment of Darling J. (2):”It remains for us to deal with the criticism that was directed to the summing-up. Mr. Tobin has said, in the course of his argument, that every point that had been made on behalf of the prisoner was put to the jury, and put fully and fairly. But he has criticised a phrase used here and a phrase used there in the course of a long summing-up. Sitting in this Court, we have often said in similar cases that we should not interfere where attention is called to phrases ambiguously used, and not expressed quite so fully and clearly, or not expressed with the exactitude which, as counsel points out, might have been used. We must look and see whether, taking the summing-up as a whole, the Judge has put the issue fairly to the jury; whether all the evidence was before them, and whether the judge adequately directed the attention of the jury to where lay the burden of proof.”
The Court is of opinion that this appeal fails, and the leave to appeal must be refused.

 

The People (Attorney General) v. Flynn

Davitt P. [1963] IR 255
Court of Criminal Appeal

The judgment of the Court was delivered by Davitt P.

DAVITT P. :
The circumstances of this case are somewhat unusual. The applicant was tried in the Circuit Court at Mullingar on the 13th November, 1962, on an indictment containing five counts charging him with having had carnal knowledge of his niece, Winifred Flynn, a girl who on the dates alleged in the first four counts was under the age of fifteen years, and on the date alleged in the fifth count was over that age but under the age of seventeen years. He was convicted on all five counts and sentenced to twelve months’ imprisonment on the first count, nine months’ on each of the next three counts, and six months’ on the fifth count, all sentences to be served concurrently.
The material facts of the case appear to be as follows: On the 12th June, 1962, the girl, Winifred Flynn, was examined by Doctor Bartholomew Cullen and found to be pregnant. He conveyed her to the Manor House Hospital, Castlepollard, where she gave birth to a baby on the 30th August.
On the 20th June, she was visited by Superintendent McCague and Sergeant Coogan of the Garda Siochána and made a statement to them which was taken down in writing. In this she said that a man called Thomas Reilly had had sexual intercourse with her in December, 1961. She said that she had never been with any other man before or since that time.
On the 22nd June she was again visited by Superintendent McCague and Sergeant Coogan. She again made a statement which was taken down in writing. In this she said that she had not told the whole truth in her previous statement. In her second statement she gave detailed particulars of numerous acts of sexual intercourse with her uncle, the applicant. She placed the first of these acts as occurring in the kitchen of her uncle’s house on a Sunday in May, 1961. This is the act alleged in the first count of the indictment. She said that on every Sunday after that until August or September he had intercourse with her in the bedroom of the house, and that on a Sunday about a week before the 21st September he had intercourse with her in a field known as McDermott’s field. These acts are not the subject of any count. She said that two or three days after Christmas he again had connection with her in McDermott’s field. This is the subject of the second count. She also alleged an act occurring at the end of January, 1962, which is not the subject of any count. She alleged acts of intercourse occurring in the months of February, March and May which are the subjects of counts three, four and five. This statement was taken from her in the hospital in the absence of any friend or relative, and indeed in the absence of anyone but the two officers of the Garda Siochána.
The statement having been obtained from the girl, Sergeant Coogan, with three other members of the Garda Siochána, took the applicant into custody and brought him to the Garda Station in Castlepollard. There was no intention of charging him at that time with any offence. As Sergeant Coogan said in evidence, they travelled up from Castlepollard for the purpose of interviewing him and taking a statement from him. They brought him to the station and put him in the sergeant’s office, where, after some fifteen minutes, the sergeant began to question him. It was then about 11 a.m.
The sergeant had with him Winifred Flynn’s second statement, and, to use a neutral word, he “interviewed” the applicant for a period of about an hour and three-quarters. During that period the applicant was, to quote the sergeant,”completely unco-operative.” He denied all the allegations in the girl’s statement. At 12.45 p.m. the sergeant decided to have his lunch, and, as the station was apparently during the luncheon hour going to be bereft entirely of guards, it was considered necessary to lock the applicant in one of the cells, and this was done.
Sergeant Mulligan was the officer in charge of the station and he also went for his lunch. He brought back a meal for the applicant, who was brought from the cell to the day-room to eat it. During the course of the meal, according to Sergeant Mulligan’s evidence, he chatted freely about many things, including his relations with women in England and his association with his niece. He said that he treated them all the same; that when he had sexual intercourse with them he always withdrew before completion. Sergeant Mulligan, according to his own evidence, then advised him that, in view of what he had said, it would be just as well for him to tell the truth and make a statement about what he had told him. Sergeant Coogan returned about 2 p.m. and was told by Sergeant Mulligan that the applicant was prepared to make a statement. He was duly cautioned, and in the course of the afternoon made a detailed statement which was taken down in writing. In this he admitted having had sexual intercourse with his niece on seven occasions including the five which are the subjects of the charges in the indictment. Having made and signed this statement he was allowed to leave the station at 5.30 p.m. after spending some six and a half or seven hours in custody.
On the 27th January, four days later, he was arrested and charged with having carnal knowledge of his niece in May, 1961, and February, 1962, acts which are the subjects of counts 1 and 3 in the indictment. In reply to each charge he said: “I admit the charge.”
At his trial his statement was tendered in evidence. His counsel objected, and evidence as to the circumstances in which it was taken was given in the absence of the jury. The accused himself gave evidence and alleged that it was extracted from him by intimidation and violence. The learned trial Judge disbelieved this evidence, held that the statement had been voluntarily made, and ruled that it was admissible. It was in due course read to the jury.
The girl, Winifred Flynn, was called as a witness for the prosecution, but she denied that her uncle had ever had sexual intercourse with her. She said that only two men Thomas Reilly and Peter Reillyever had intercourse with her. Counsel for the prosecution was given leave to cross examine her as a hostile witness, and her second statement was put to her in detail. She said it was all untrue.
The evidence of the applicant as to the circumstances in which the statement was taken from him included the following: he said that Sergeant Mulligan told him that it would be better for him to make a statement admitting guilt, and to go and sec the girl’s parents, and to contribute to her child’s maintenance. He described acts of intimidation and violence, and said that what induced him to make the statement was the fear of being again put in the cell. He said that he decided to make a false statement as the only way to get out.
At the close of the case the only evidence against the applicant was his own statement and his admission made on being formally charged. In his charge to the jury the learned trial Judge not only failed to direct them that the girl’s statement (which they had, of course, heard put in detail to her and which they were allowed to read) was not evidence against the accused, but referred to it more than once as if it were evidence against him. At page 7 of the transcript of his charge he is recorded as saying: “You have heard the guards, you have heard the evidence they gave in regard to the obtaining of this statement, you have seen the girl in the box, you will have the statement before you, and it is for you to decide whether or not the facts contained in that statement are true or not, or whether they can be relied on.” Again, at p. 11, he is recorded as saying: “But if you think, gentlemen, that the statement made by this girl is, in fact, true and and that the statement made in the guards’ barracks in Castlepollard by the accused is true, then, gentlemen, I think the case is very clear as far as you are concerned, but you must be satisfied on both these scores . . .”
The two grounds of appeal relied upon are (a) that the accused’s statement was wrongfully admitted in evidence, and (b) that the jury were misdirected as to how they should regard the girl’s statement. It is conceded by counsel for the Attorney General that the jury were misdirected as to how they should regard the girl’s statement, and that this ground of appeal must be allowed. They submit, however, that having regard to the admissions made by the applicant no miscarriage of justice has actually occurred. It is necessary to consider, therefore, whether the applicant’s statement was properly admitted in evidence.
As already stated, the applicant alleged that the statement was extracted from him by intimidation and violence, and these allegations were disbelieved by the learned trial Judge. He was in a much better position of judge of the truth or otherwise of the allegations than we are, and we are not disposed to disagree with his view on this aspect of the matter. The guards concerned denied that any improper inducement was held out to the applicant in order to secure the statement, and averred that he made the statement freely and voluntarily.
It seems to us, however, that facts which are not in controversy afford strong circumstantial evidence tending to the conclusion that the statement should not be accepted as having been made voluntarily. It is, we think, abundantly clear that on the 23rd June the applicant was arrested, not for the purpose of charging him with any offence, but purely for the purpose of obtaining a statement from him. The guards had in the girl’s second statement, if she adhered to it, clear evidence of the commission of these serious offences; but there was, apparently, no corroborative evidence, and this was, of course, essential. The applicant was accordingly arrested and brought to Castlepollard Station, admittedly for the purpose of getting a statement from him. The nature of the statement sought can clearly be inferred from Sergeant Coogan’s evidence when he said that, though interviewed for nearly two hours in the morning he was “completely uncooperative.”He persisted in denying all his niece’s allegations. He was locked in a cell cluring the luncheon interval, and when Sergeant Coogan came back he found that where he had failed Sergeant Mulligan had succeeded. The applicant had decided to make a statement.
What was the secret of Sergeant Mulligan’s success? It will be remembered that the applicant said that the sergeant told him that it would be better for him to make a statement admitting his guilt. In his direct evidence the sergeant said that he told the applicant that “perhaps it would be just as well if you tell the truth about it and make a statement.” In cross-examination the sergeant admitted that his deposition recorded him as having said in the District Court: “I advised him, the accused, that it would be in his own interests that he should make a statement.” He said, however, that he did not think that he used those exact words, and that he certainly did not say “in his own interests.” It seems to us that all the circumstantial evidence favours the view that there must have been some inducement used by Sergeant Mulligan to persuade the applicant to agree to make a statement, and that it is more than likely that it was to the effect that it would be better for him to do so.
Having regard to this probability, and to the undoubted facts that the purpose of arresting the applicant and bringing him to the station was to get a statement from him; that though interviewed for nearly two hours in the morning he persisted in denying all his niece’s allegations; that he was kept nearly seven hours in custody, and that he was released only when he had made a statement admitting nearly all her allegations, we consider that notwithstanding the evidence of of the guards in question it is impossible to be sure that the statement was voluntarily made.
Accordingly, we are of opinion that the statement should not have been admitted in evidence, and that the only admissible evidence against the applicant was his answers when formally charged. These admissions were made on the 27th June, four days after he had been released from custody on making his statement. His counsel did not object to the admission of these answers, and we are not prepared, as matters stand at present, to question their admissibility. We are unable to hold, however, that if the applicant’s statement had been excluded, and the jury had been properly directed as to the girl’s statement, the applicant would have been convicted on counts 1 and 3. We cannot, therefore, be satisfied that there has been no miscarriage of justice in regard to these counts.
For the reasons stated we will allow the applicant leave to appeal against conviction and sentence; we will treat the hearing of his application as the hearing of the appeal: we will allow the appeal and set aside the conviction on all counts. Counsel for the Attorney General does not, in the circumstances, consider that we should direct a new trial on counts 1 and 3, and we think that he is quite right in this.

 

People (D.P.P.) v. Finnerty

Supreme Court, June 17, 1999,
JUDGMENT of the court delivered the 17th day of June, 1999 by Keane, J. [Nem. Diss.]

Introduction

1. At approximately 4 o’clock on a summer morning in 1998, a car being driven by the applicant was stopped by the gardaí in Letterkenny, County Donegal. A young woman who was a passenger in the car got out of it immediately, walked quickly to the patrol car and spoke to one of the gardaí. She told him she had been raped by the driver. She was distressed, weeping

 

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and shivering. The garda (Garda John Healy) told the applicant then and there what she had said and cautioned him in the usual terms. The applicant (whose reply was noted in writing by Garda Healy) said:-

“I didn‘t rape her. I met this girl at a disco. She came out willingly. We went down the road, pulled in, kissed and such. We left then and came back in.

The applicant was arrested and brought to the garda station in Letterkenny. He was there detained under the provisions of the Criminal Justice Act 1984 (hereafter “the 1984 Act”) and released at 4 pm on the 1st June, the period of detention having been duly extended. During that time, after having been properly cautioned and advised of his rights (including his right to consult a solicitor, of which he availed), the applicant was interviewed by the gardaí but made no further statement of any sort.

The applicant was subsequently returned for trial in the Central Criminal Court on two counts of rape. (The reason two counts were laid will become apparent at a later point.) Having been arraigned and having pleaded not guilty to both counts, the applicant was tried before Carney J and a jury in the Central Criminal Court.

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The complainant, who was a student at a local regional technical college at the time, gave evidence of having gone out for a celebration with some of the other students on the 30th May, after they had finished their examinations on that day. She met a man in the disco to which they went with whom she danced and to whom she talked for most of the evening. She said that he offered to drive her home and, that, since he seemed nice and she thought she could trust him, she agreed. When they came to his car, he said that he had to wait for a friend: the friend, who was another man wearing a form of jumper with a hood which, the complainant said, he pulled over his head, sat in the back seat behind her as they drove off. She said that she became very frightened because the passenger in the back seat began making physical advances to her and that her fear became even greater when the driver, instead of taking her home, drove her to a lonely spot on the Derry road. There, she said, the two men got out and after a brief conversation, the passenger with the hood got back into the car and said that he would drive the complainant home. The other man, she said, just walked off.

The complainant said that the man with the hood, despite her protests and threats to jump out of the car, brought her to another place where he drove the car into the driveway of a house and round to the back. Her evidence went on: (Transcript, Book 1, Q.23 1):-

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Q. The car drove in. Are you saying it stopped?

A. Yes, it stopped and before I knew it, the car just stopped and it happened so quickly that he was on top of me and he just reefed off my clothes.

The complainant went on to give a description of having been brutally raped by the driver. At one stage, she pleaded to be allowed to get out of the car to relieve herself: he eventually allowed her to but stood beside her. Following that incident, she said she was raped again in the same manner. (It was this sequence of events as narrated by the complainant which resulted in the laying of two separate counts.)

The complainant, who said that she was a virgin at the time of the alleged rape, identified the applicant as the perpetrator.

The complainant was then cross-examined on behalf of the applicant and it was put to her that her account in every material particular was false. She was told that the applicant would give evidence that they had in fact met in a pub where the complainant had gone with her friends before they went to the disco. The complainant, in her direct evidence had said that she and her friends had begun the evening in the pub, but she denied that she had met the applicant there or, in deed, at any time until after she had left the disco. She was told that

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the applicant would say that she told him she was going on to the disco, that they met there and had drinks together and that at one stage he sat on her knee. She was told that he would say that they had a discussion as to what might happen later on, that she explained that they could not go to her place because her mother was sharing a room with her in a guesthouse and that ultimately they decided to go for a drive in his car. It was further put to her that he would say that she made some physical advances to him while they were driving and that ultimately he stopped the car and that they had intercourse with her consent. All of this was denied by the complainant.

When the complainant had finished her evidence, prosecuting counsel told the learned trial judge, in the absence of the jury, that he now proposed to adduce evidence as to the fact that the applicant, during the period of his detention in the garda station under the 1984 Act, had made no statement of any sort. This was objected to by counsel on behalf of the applicant on the ground that the only issue in the case was as to whether the sexual intercourse which had admittedly taken place on the evening in question between the complainant and the applicant was with or without her consent. Counsel for the prosecution, however, submitted that, since it had been made clear on behalf of the applicant that he would be giving evidence which would contradict the account of events given by the complainant, the fact that he had given no such account when being interviewed in the garda station would be relevant when

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the jury came to assess his credibility. The learned trial judge, having heard the submissions on behalf of the prosecution and the applicant, ruled that the evidence was admissible.

The applicant gave evidence which was broadly similar to the account of events put on his behalf by counsel to the complainant. The only material addition in his evidence, which did not appear to have been put to the complainant, was that she expressed anxiety when the car was about to be stopped by the gardai, because her mother would be angry with her for having gone out drinking with the other students.

The applicant was cross-examined by prosecuting counsel as to what transpired in the garda station as follows (Transcript, Vol. 4, Q 310 et seq ):-

“Q. Now, you have told the members of the jury and his lordship what response you made to Garda Healy when he challenged you about the allegation made against you, isn‘t that right?

A. That’s correct, yes.

Q. Now, do you recall being in custody for 12 hours?

A. That’s correct, my Lord, yes.

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Q. Yes, and weren‘t several members of gardaí enquiring further into this allegation made by [the complainant]?

A. That ‘s correct, my Lord yes.

Q. Yes, cautioning you and asking you questions about it?

A. That’s correct, my Lord.

Q. Yes. Are they correct in saying that you didn‘t give a single answer to any questions posed to you about this matter, the complaint from [the complainant]?

A. I explained to the guards, when I got stopped that I met [the complainant] in the disco].

Q. Yes. About what? About two lines or thereabouts. We have had it already…

Now, you had told them what you are now telling the members of the jury, wouldn‘t you have told them well over a page of facts

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concerning this evening in which you were blissfully innocent of any wrongdoing?

A. Well, when I got to the police station, in Letterkenny, some of the guards passed remarks.

The applicant went on to say that during the course of the interview, some of the interviewing gardaí had said that the reason he had done what he was alleged to have done was because his parents had abused him when he was small. The applicant also said that he had given an account of what had happened to a lady garda in the interview room. It was put to him that none of the garda witnesses had been cross-examined to that effect. In re-examination he said that he had told his solicitors to make a complaint that he had been assaulted by one of the gardaí.

In the course of his charge to the jury, the learned trial judge made no reference to the issue raised by the prosecution as to whether the jury were entitled to take into account, in assessing the credibility of the applicant’s evidence, the unchallenged evidence of the garden that he had made no statement during the course of the detention. He did, however, refer to the applicant’s version in evidence as to what had transpired in the garda station in the following passage:-

-9-

“That was the evidence, members of the jury. In relation to this latter part, it wasn‘t put to any policeman that he was assaulted it wasn’t put to [the lady Garda] that she was seeing him on his own and failing to record material which he said which would be grossly improper, and it wasn‘t put to any one that they had said very improper things to him about his parents sexually abusing him and so forth. If allegations are going to be made against people, the procedures of the courts require that the matter be put to them so that they are given an opportunity to respond to it.”

2. The learned trial judge had, at an earlier point in the charge, referred as follows to that part of the applicant’s evidence:

“Now, there are certain legal, technical matters involved in a case where the evidence is directed to me rather than to you. There are certain circumstances where I have to decide that a person is in lawful detention and those decisions are for me to take and the evidence in that area is directed at me. So most of the admissions which are made here are matters which are directed at me rather than you but they do assume a certain significance because of evidence given in the very tail end of the case, I think to the

-10-

surprise of Mr. Finnerty’s legal advisers, but the admissions which were made at the time are the following:-

Joseph Finnerty was properly detained when he was being arrested under s. 4 of the Criminal Justice Act 1984.

“Now, members of the jury, a prisoner is not being properly detained if he is beaten and a prisoner is not being properly detained if interrogation techniques such as your parents sexually abused you’ are being directed at him. So at this point in the case there is a admission that Joseph Finnerty was properly detained when he was arrested under s.4 of the Criminal Justice Act, 1984.”

3. Junior counsel for the applicant, Mr. Grehan, made the following application in respect of these passages in the charge:-

“The next and final matter which I am addressing your lordship on, I don’t think is remediable by your lordship‘s simply recharging the jury.

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Mr. Justice Carney: You want me to discharge the jury?

Mr. Grehan: I am going to ask your lordship to discharge the jury in respect that your lordship told the jury that in relation to evidence which Mr. Finnerty gave on cross-examination, that it came as a surprise to Mr. Finnerty’s legal advisers, that it was made at one minute to midnight, that there were allegations of various matters that had never been put to police officers and in the context of certain statements of fact having been admitted by the defence at an earlier stage.

This case, my lord is about a rape allegation. It is not about whether Mr. Finnerty was assaulted at some stage by Garda John Healy in the course of his custody. There was no question whatsoever that the defence could have been taken by any surprise that Mr. Finnerty, when he was being cross-examined should give that evidence. It is set out clearly in the book of evidence in Garda John Rousse‘s statement that Mr. Dillon [the applicant ‘s solicitor] made a complaint of assault against Garda John Healy at 9.30 am on the morning of his detention. It’s set out clearly in the custody record but your lordship has given to the jury the suggestion that

-12-

this was something that came clearly out of the blue that the defence were never previously made aware of it and the only possible implication is that Mr. Finnerty made it up in the witness-box and he lied not only to the jury but also to his defence in this case.

Mr. Justice Carney: well, I have not read the Book of Evidence, Mr. Grehan, and I am conducting a trial on evidence being adduced here. If you want me to tell the jury that that was in the Book of Evidence very well, but it is a remarkable course of events for the defence to spring matters at one minute to midnight – I do not retreat from that phrase for a moment – when they had not been put to any of the prosecution witnesses.”

4. Mr. Grehan, in a further submission to the learned trial judge said:-

“At an earlier point in this trial, your lordship made a ruling, which is novel to me in my relatively limited experience of criminal experience compared to your lordship, which in effect abolished an accused’s right of silence and to exercise that right in the police station by determining that, not only can the fact that the

– 13 –

accused has exercised that right be brought to the attention of the jury, the fact that he refused to answer any questions can be brought to the attention of the jury and Mr. Mills in fact can cross-examine the accused as to what exactly occurred in the context of his detention in the station… In the normal course if this case had proceeded on the basis that Mr. Finnerty had simply exercised his right to silence or simply that nothing had occurred which was of probative value while he was in custody, none of these matters would have been gone into or would have come out and that is the only manner in which they have come out… This is a matter which only came out in the context of cross-examination and can now specifically, because of a ruling which your lordship made to the effect that his right to silence could now be undermined by the fact that it could be commented upon and that he could be questioned on it and in those circumstances it seems to me that your lordship has wholly undermined the defence of Mr. Finnerty in this case.”

5. Having heard counsel for the prosecution in reply, the learned trial judge recalled the jury and recharged them in respect of the other matters as to which requisitions had been made. He made no further reference to this matter,

 

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presumably because he did not consider it appropriate to discharge the jury and Mr. Grehan had made it clear that this was the only course he was inviting the trial judge to take.

6. As to the other evidence at the trial, it is sufficient to refer to those aspects which had a bearing on whether there was any evidence which the jury might have treated as corroborative of the complainant’s version of events.

7. The complainant was medically examined by Dr. Najma Ali, a registrar in Letterkenny Hospital. She said that the complainant seemed distressed but did not appear to have any external injuries. As to her examination of the genitalia, it can be summarised as indicating that what she found was consistent with forced sexual intercourse, but was also consistent with consensual sexual intercourse. She said that the complainant’s clothes were dishevelled but were not torn, the latter conclusion being borne out by the forensic examination of the gardaí. It should be pointed out that, while Dr. Ali found no sign of bruising, she agreed that it might have taken a day or more after the application of any force for such bruising to appear.

8. There were also blood stains on the underwear and on the seat of the car which, the forensic evidence, indicated would be consistent with either forcible or consensual intercourse.

9. The learned trial judge, in the course of his charge, warned the jury of the danger of convicting the applicant in the absence of corroboration but also told

 

-15-

them that, having carefully considered that warning, they were entitled so to convict. He also drew their attention to those aspects of the evidence which were capable of constituting corroboration, i.e. the complainant’s distress and confusion and her dishevelled appearance in the immediate aftermath of the alleged rape. He also was at pains, at the request of the defence, to point out to the jury that those matters were also consistent with consensual sex having taken place. No criticism has been, or could be, made of those aspects of his charge.

10. The jury found the applicant guilty in respect of the second count by a unanimous verdict. They were unable to agree in respect of a verdict on the first count. The case having been put back for a number of weeks for the obtaining of the appropriate reports, the applicant was sentenced to a term of 7 years’ imprisonment. The first count was adjourned so as to enable counsel for the prosecution to obtain instructions from the Director of Public Prosecutions as to whether to proceed with that charge again. An application for leave to appeal was refused.

The Court of Criminal Appeal

11. An appeal was brought from the refusal by the learned trial judge to grant leave to appeal. While the notice of appeal was not included in the books of

 

-16-

appeal lodged with this court, it can be inferred that the first two grounds were as follows:-

“1. That the learned trial judge erred in law and in fact in permitting the prosecutor to adduce evidence before the jury of a positive nature to the effect that the accused had refused to answer any questions put to him by members of An Garda Sííochána during his entire period of detention under s.4 of the Criminal Justice Act 1984.”

2. The learned trial judge erred in law and in fact in permitting the prosecutor to question the accused before the jury as to why he refused to answer any questions during his entire period of detention under s.4 of the Criminal Justice Act 1984.”

12. Other grounds were also argued in the Court of Criminal Appeal, but were not pursued in this court. The appeal was dismissed in an extemporary judgment of the court given by Lynch J. dealing with the first two grounds of appeal, the learned judge said:-

 

-17-

“The applicant claims that that permission to give that evidence of his silence and to cross-examine him about the silence was in breach of his right to silence. Now his right to silence was emphasised by the learned trial judge and the only purpose of this evidence and cross-examination by the prosecution of the Applicant related to the reliability of the Applicant’s detailed statement of explanation. There were before the jury manifestly two contradictory versions of what had happened on this particular night. The issue was which of these versions was to be believed and it was quite proper and reasonable for the prosecution to ask the Applicant why he had not given the full exculpatory account of the evening’s events at an early stage instead of for the first time during the course of the trial.

This course of events does not trench in any way on the right to silence which as I have said was emphasised very strongly by the learned trial Judge but this form of evidence of the Applicant’s silence in the garda station and of cross-examination by the prosecution was highly relevant to the credibility of the Applicant’s lately proffered account of events. The evidence as to his silence and his cross-examination about the silence were

– 18 –

permitted and adduced only for that purpose and that was made quite clear and in the circumstances of the case that course of proceedings was perfectly permissible and proper.

“In these circumstances the court rejects grounds 1 and 2 of the application for leave to appeal.”

13. It should be said at this point that the reference in this passage to the trial judge having emphasised the right to silence of the applicant appears to be an oversight, if it was intended as a reference to the applicant’s claimed right to remain silent during the period of his detention in the garda station. There is no reference in the charge of the learned trial judge to that right of the applicant: the learned trial judge did undoubtedly point out to the jury that the applicant was under no obligation to give evidence in his own defence, but that is a different matter.

14. Following the dismissal of the appeal, the applicant applied for a certificate pursuant to s.29 of the Courts of Justice Act 1924 enabling an appeal to be brought to this court. That application was acceded to by the court of Criminal Appeal, the certificate being in the following terms:-

 

-19 –

“The court certifies that its decision of the 22nd June 1998 involves a point of law of exceptional public importance which is set out in the Schedule hereto and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

Schedule

Counsel for the applicant in cross-examining the complainant put to her a detailed account of the events of the night of the 31st May/1st June 1995 in which he alleged that everything that happened on that night, including a journey in a motor car and sexual intercourse, happened with the full and free consent of the complainant. The only statement made by the applicant to members of the Garda Síochána was at the roadside when he was stopped between 4 and 5 am on the 1st June 1995 and was accused of rape by the complainant, which statement was as follows: –

“I didn‘t rape her. I met this girl at a disco. She came out willingly. We went out the road pulled in, kissed and such. We left then and came back.

– 20 –

In the foregoing circumstances, was it permissible for the prosecution:

1. To elicit from members of the Garda Síochána who interviewed the applicant during his twelve hours’ detention in the garda station on 1st June 1995 that he declined to say anything during such interviews in relation to the complainant’s accusations?

2. To cross-examine the applicant when he gave detailed evidence as to alleged consent by the complainant to everything that happened on the night in question as to why he did not give that account of events when interviewed by members of the Garda Síochána during his twelve hours’ detention in the garda station on the 1st June 1996?”

15. The notice of appeal to this court, pursuant to that certificate, in addition to the two grounds set out at p.16 above, contained the following additional grounds: –

“3. That the learned trial judge erred in law and in fact in failing to discharge the jury upon the requisition of counsel for the accused at the conclusion of his charge to the jury on the basis

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that part of the said charge which related to the evidence given by the accused was speculative and prejudicial to the accused and served to totally undermine and belittle the accused before the jury;

4. The learned trial judge erred in law and in fact in failing to hold the balance and remain impartial vis a vis the prosecutor and the accused in his charge to the jury;

5. That the learned trial judge in recharging the jury failed to do so in an impartial and balanced manner and in fact thereby undermined the requisitions made on behalf of the accused.”

The right to silence

16. It is important to emphasise at the outset that the more general constitutional and legal dimensions of what has come to be called “the right of silence” are not at issue in this appeal. That right, to the extent that it exists, can arise in a number of different contexts, only one of which is at issue here. Thus, it is not in dispute that the exercise by an accused person of his right not to give evidence in his own defence cannot lead to any inference adverse to him

 

– 22 –

being drawn by the court and that, in the case of a trial by jury, the jury must be expressly so advised by the trial judge.

17. Nor is the appeal concerned with the possible admissibility in evidence of a statement made in the presence of a defendant accusing him of a crime, upon an occasion which may be expected reasonably to call for some explanation or denial from him. Such a statement, although not evidence against him of the facts stated, may be accepted by him by word or conduct, action or demeanour and it is then the function of the jury which tries the case to determine whether it was accepted by him in whole or in part: (see Archbold on Criminal Pleading, Evidence and Practice, 1999 edition, 15 – 390 ). Nor are we concerned with the different considerations which may arise where the accused denies the charge and the adduction of that evidence, given its extremely limited probative value, may, at least in some circumstances, compromise the fairness of the subsequent trial. For that reason, it has been the law both in England and Ireland since the leading case of R. v. Christie [1914] AC 545 , that a trial judge should in most cases take care to ensure that such evidence is excluded where it has little or no evidential value. In the present case, that issue does not arise since the adduction in evidence of the exculpatory statement made by the applicant to Garda Healy when he was stopped by the gardai was not objected to on his behalf.

 

-23 –

18. Nor is this case concerned with the formal evidence routinely given in many cases as to the response by an accused person following his being charged and cautioned. Such evidence is normally led as one of the formal proofs in the prosecution’s case because, it is thought, rightly or wrongly, that evidence must be given of the accused having been charged and it would be unwise to allow the jury to speculate as to what he might have said in response. Except in cases where his response was inculpatory, such evidence is normally innocuous and will almost certainly have long faded from the jury’s minds when they retire to consider their verdict.

19. This case is solely concerned with the claimed right of a person detained under s.4 of the 1984 Act to refuse to answer questions put to him by the gardai during the course of his detention and the corollary of that right i.e. the need to ensure that no inferences adverse to him are drawn at any subsequent trial from the exercise of that right.

20. The history of the law prior to the enactment of the 1984 Act is relevant. Our criminal law, deriving ultimately from the Anglo-American system, historically reflected a tension between two competing principles. The first was the right and duty of the police to investigate crime of every sort in the interests of the community as a whole and the corresponding obligation on citizens to assist them in that task. The second was the right of a suspect at a defined stage in the investigation to refuse to answer any questions and the

 

-24 –

obligation on the police to inform him of that right in the almost universally known formula of the traditional police caution.

21. These principles were eventually enshrined in what became known as the “Judges’ Rules” set out in R. v. Voisin [1918] 1 KB 531 at 538. Those rules were intended solely as guidance for police officers in the conduct of investigation and were not rules of law. However, where admissions, alleged to have been made by an accused person, were made or obtained in circumstances which were in contravention of the rules, the trial judge had a judicial discretion to admit or not to admit the admissions in question, provided that he was satisfied that they were voluntary. If they were not voluntary, he was required to exclude them. (On this topic generally, see the decisions of this court in McCarrick v. Leavy [1964] IR 225 and The People (Attorney General) v.Cummins [1972] IR 312.) In the context of this case, the relevant rules are as follows:-

“2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions as the case may be.

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3. Persons in custody should not be questioned without the usual caution being first administered….
…..
5. The caution to be administered to a prisoner when he is formally charged should therefore be in the following words:

‘Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.

The common law also proceeded on the basis that the police had no right to detain a person whom they suspected of having committed a crime for the purpose of questioning him. Their only right was to arrest him and bring him before the appropriate court, there to be charged, as soon as practicable. Since, however, many people were unaware of their rights in this context and were not normally reminded of them, the practice, euphemistically described as “assisting the police with their enquiries”, mutated into what was, in practice if

– 26 –

not in theory, a form of unlawful detention. (See Duane v. Clinton [1930] IR 366 ; The People (DPP) v. O’Loughlin [1979] IR 85.)

Prior to the 1984 Act, one major abridgement of the citizen’s rights in this regard had been effected in the form of the Offences Against the State Acts, 1939 – 1972. While the provisions of that legislation were intended to afford the gardai specific powers in cases where the security of the State was threatened, they were routinely applied in cases of what came to be described as “ordinary crime”. Thus, a person who broke into a house and murdered the occupant could not be detained for questioning on the ground that he was suspected of having committed the murder; he could, however, be detained because he was suspected of having committed an act of malicious damage.

It was against this background that the 1984 Act was enacted. The policy of the legislation is clear: to end the dubious practice of bringing people to the station for the purpose of “assisting the gardaí with their enquiries”, or in purported reliance on the legislation directed primarily at subversive crime, and to substitute therefor an express statutory regime under which the gardaí would have the right to detain a person in custody for a specified period of six hours which could be extended for a further six hours for the purpose of investigating specified crimes. That included the right to question him concerning the crime, but the significant abridgement of the suspected person’s rights at common law was balanced by the provision of express safeguards. As elaborated in the rules

– 27 –

elaborated in the rules made on foot of the legislation, these included obligations on the gardaí, to keep detailed records as to the custody of the suspect and provisions designed to ensure that the questioning did not become unfairly oppressive. (See Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochána Stations) Regulations (S.I. No. 119 of 1987).

Section 5(1) of the 1984 Act requires the member in charge of the station to inform a person without delay of his right to consult a solicitor and to have that solicitor and another person named by the detainee notified of his detention and the station in which he is being detained. While there is no express requirement in the Act or the rules that the caution in the usual form must also be administered before a person is questioned, it is quite clear that it should be given and, indeed, was given in the present case. The law was stated in this court by Walsh J, in a passage subsequently approved of by Finlay CJ giving the judgment of the court in The People (Director of Public Prosecutions) v. Quilligan No. (3) [1993] 2 IR 305, as follows:-

“ …. whilst s. 30 and 52 [of the Offences Against the State Act, 1939] respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation

– 28 –

as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in the cases of arrest for ‘ordinary’ offences, may be asked any other question by members of the Garda Síochána present, but he is under no obligation to answer any of them and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all person detained under s.3 0…”

(The People (Director of Public Prosecutions) v. Quilligan [1986] IR 495)

22. It is clear that the same considerations apply to persons detained under s.4 of the 1984 Act.

23. The 1984 Act, accordingly, did not modify in any way the right of a person whom the gardaí suspect of having committed a crime to refuse to answer questions put to him by the gardaí and his entitlement under the Judges’ Rules to be reminded of that right before any questioning begins. That right would, of course, be significantly eroded if at the subsequent trial of the person concerned the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardai an account similar to that subsequently given by him in

 

– 29 –

evidence. It would also render virtually meaningless the caution required to be given to him under the Judges’ Rules.

24. It must also be borne in mind that it is a usual practice for solicitors to advise their clients while they are in custody not to answer any questions put to them by the gardaí, if they consider that it would not be in their interests to do so. However, if the jury could be invited to draw inferences from the failure to reply to such questions, the result would be that persons in custody would have to be advised by solicitors that, notwithstanding the terms of the caution, it might be inimical to their client’s interests not to make a full statement to the gardaí, thereby eroding further the right of silence recognised at common law.

25. Had the Oireachtas intended to abridge the right of silence in this manner, it would have expressly so legislated. Sections 18 and 19 of the 1984 Act enable the court of trial to draw inferences from the failure or refusal of a person arrested by the gardaí to account for the presence of certain objects in his possession or his having been found at a particular place. Such inferences may afford corroboration of any evidence, but the person may not be convicted of an offence solely on the basis of such inferences. This leads to the inevitable conclusion that no such general abridgement of the right of silence was intended to be effected where a person declined to answer questions put to him by the gardai during the course of such a detention.

 

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26. It is also noteworthy that such an alteration in the law was effected, in England, in circumstances of acute controversy, by s.34 of the Criminal Justice and Public Order Act 1994, which provides inter alia that, where a person, on being questioned under caution by an investigating police officer, fails to mention any fact relied on in his defence in the proceedings, the court or jury:-

“May draw such inferences from the failure as appears proper”.

27. That in turn led to an amendment in that Act of the traditional form of caution which, as set out in Code C, para. 10.4, is now as follows:-

“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

28. The absence of any such provisions in the 1984 Act speaks for itself. In the case of the Offences Against the State Act 1939, the right of silence was modified in so far as s.52 of that Act made a failure to account for one’s movements, when requested to do so under that Act, a punishable offence. In Heaney v. Ireland, [1994] 3 IR 593 , Costello J, as he then was, concluded that the right of silence modified by this provision was a

 

-31-

constitutional right deriving from Article 38.1 of the Constitution guaranteeing that no person would be tried on any criminal charge “save in due course of law”. He held, however, that the abridgement of the right of silence effected by s.52 was proportionate to the objectives intended to be achieved by the legislation. He, accordingly, rejected the challenge to the constitutionality of the provision and his decision was upheld by this court, although in the judgment of O’Flaherty J the constitutional right to remain silent is traced to a different source, i.e. as being a corollary to the freedom of expression also recognised by the Constitution. The same principles were applied by this court in Rock v. Ireland [1998] 2 ILRM 35 where the constitutionality of s.s. 18 and 19 of the 1984 Act were upheld. (See also the decision of Barrington J, speaking for the court, in In re National Irish Bank Limited (Under Investigation) and The Companies Act 1990 [1999] 1 ILRM 321)

29. It follows that the right of suspects in custody to remain silent, recognised by the common law, is also a constitutional right and the provisions of the 1984 Act must be construed accordingly. Absent any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion follows inevitably that the right is left unaffected by the 1984 Act save in cases coming within s.s. 18 and 19, and must be upheld by the courts.

 

– 32 –

Conclusions

30. Mr. Grehan, who argued this case on behalf of the applicant with conspicuous ability, accepted that he would have had no complaint if the prosecution had simply informed the court that the applicant had been detained under the 1984 Act but that nothing of probative value had emerged from the detention. He urged, however, that that was not what had happened in this case: on the contrary, evidence was adduced by the prosecution to the jury as to what transpired during the detention, after the complainant had been cross-examined, with the avowed intention of cross-examining the applicant as to his failure to give such an account during the course of his detention when he came to give evidence, a course of action strenuously objected to on behalf of the defence but permitted by the learned trial judge.

31. Again, while Mr. Grehan accepted that he had not objected to the cross-examination when it eventually took place, he also pointed out that at that stage the trial judge had already made his ruling on the matter and that, in any event, the damage was done so far as the defence was concerned once the cross-examination on this topic was under way. While also accepting that it was open to him at that stage to apply to the trial judge to discharge the jury, he submitted that this was a dubious course for the defence to adopt in a case where the jury had been presented with two diametrically opposed versions of what had happened on that evening between the complainant and the applicant

 

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and the defence might justifiably have hoped that the jury would be left with a reasonable doubt as to whether the complainant’s version was true.

32. The court is satisfied that Mr. Grehan’s submissions are well founded. The defence should not have been put at any disadvantage on the hearing of the appeal by the decision, reasonable in all the circumstances, not to object to the cross-examination or apply for the discharge of the jury.

33. The principles applicable in a case such as the present where a defendant while detained under the provisions of the 1984 Act has refused to answer questions put to him can be stated as follows:-

(1) Where nothing of probative value has emerged as a result of such a detention but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant during the course of his detention to answer any questions be permitted.

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(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.

34. The application of the first and second of these principles to the present case must result in the appeal being allowed. Unfortunately, the difficulties were compounded by the passage in the trial judge’s charge which was by implication critical of the appellant for having made statements as to what transpired during the course of his detention which had not been put to the gardaí and which, the trial judge invited the jury to infer, had not been transmitted to his legal advisers.

35. It must be said, in fairness to the trial judge, that, once the misapprehension he was under when making those observations was made clear to him, he might have been prepared to rectify the matter when the jury was recalled. The defence, however, adopted the position, as they were entitled to do, that the matter was beyond rectification and sought the discharge of the jury, a course opposed by the prosecution which the trial judge did not adopt. The jury, accordingly, in deliberating on the guilt or innocence of the accused, might well have been under the impression that they were not only entitled to draw adverse inferences from the failure of the defendant to give his version of events in detail in the garda station but that they were also entitled to draw such

 

– 35 –

inferences from the supposed failure of the applicant to instruct his legal advisers as to what had transpired during the course of that questioning.

36. Any inferences which the jury might have drawn to that effect would have been in direct violation of the applicant’s constitutionally guaranteed right to remain silent, and might well have been a factor in the jury’s assessment of the credibility of the applicant’s account of what happened between him and the complainant on that night. The verdict of the jury cannot, accordingly, in those circumstances be regarded as safe or satisfactory.

37. The appeal will be allowed and in place of the order of the Court of Criminal Appeal there will be an order reversing the conviction and directing that the applicant be retried in respect of count number 2.

 

People (DPP) v M

[2018] IESC 21

Judgment of Ms. Justice Iseult O’Malley delivered the 21st day of March 2018
Introduction
1. The appellant was granted leave to appeal to this Court under Article 34.5.3° of the Constitution on the following issue:

Where a person has volunteered an exculpatory statement and thereafter responds to questions by referring to the statement and saying that he or she has nothing further to say, should such responses be seen as
(a) an exercise of the right to silence, or

(b) relevant and probative evidence in the trial?

2. The issue arises in the following circumstances. The appellant was convicted on one count of indecent assault after a trial in which evidence of a prepared written statement given by him to investigating gardaí was followed by evidence that, in reply to subsequent questions put by the gardaí, he had referred to the statement and said that he had nothing further to say. The appellant contends that in so doing he was exercising his right to silence. He claims that he was irretrievably prejudiced by the disclosure of the full interview to the jury, and that this was a clear violation of his right to silence contrary to the principles confirmed in DPP v Finnerty [1999] 4 I.R. 364. The three rules set out in Finnerty apply to evidence relating to questioning of the accused while in garda custody and are as follows
(i) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.
(ii) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.

(iii) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.

3. The respondent argues that on the facts of the case the accused was not exercising his right to silence, and that the contents of the interview were relevant and probative evidence which could assist in assessing the credibility of the statement.
Background facts
4. The appellant is a medical doctor. The complaint giving rise to the trial was an allegation that in December, 1989, in the course of a routine visit to the home of the complainant (“Ms. H”) to treat her terminally ill mother, he subjected the complainant to a medical examination and while so doing he assaulted her indecently.

5. The complaint to the gardaí was made in October, 2010. The appellant was arrested on the 22nd June, 2011, for the purpose of questioning. It seems obvious that he had previously been made aware of the complaint against him, and he brought with him to the station a prepared statement.

6. At the start of the interview the appellant was cautioned in the standard fashion as follows:

“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.”
7. The appellant confirmed that he understood the caution and that he had been offered the services of a solicitor. He was then asked various uncontroversial questions about, for example, his personal and family life, professional background, and the location and layout of his surgery. He replied fully to all such questions. Next, he was asked if he remembered a girl by the name of M.H being a patient of his, to which he responded “I have a statement here in relation to [M.H]. Other than that I have nothing to say.” The gardaí requested that the statement be read out and signed and the appellant complied with that request.
8. According to his statement the appellant recalled that M.H. had been a patient around the time of the death of her late mother, but he did not retain records from that time. He recalled the final illness of the late Mrs. H. and that he attended in her home, several times a week, up to her death. He did not recall having been at the house after that. The complainant had attended him as a patient on a few occasions around the time of her Leaving Certificate. He did not recall having physically examined her on any occasion. He said that he was “deeply shocked and greatly distressed” that a patient would make allegations against him that were “blatantly false and extremely damaging”.

9. The interviewing Garda then asked a number of questions arising from the complainant’s written statement. These commenced with a query as to whether it was correct that M.H. had been a patient of the appellant from 1989 to 1992, and finished by reading out from her statement the details of the allegation of assault in her home. The appellant was asked if he recalled that happening. In response to each question the appellant replied with the sentence “I have nothing to say other than what’s written in my statement” (or some slight variation thereof).

10. By agreement between counsel these supplementary exchanges were not introduced in evidence in the first trial, which ended in a disagreement. At the second trial the appellant’s statement was adduced in evidence before the jury in the normal way. Counsel for the prosecution then proceeded to lead evidence of the additional questions and responses. It is clear that this was done without notification to counsel for the defence. The latter did not immediately object, because, he says, of fear of drawing the attention of the jury to the evidence in the event that the objection was unsuccessful. However when the jury went out for lunch he immediately informed the trial judge that he was going to apply to have the jury discharged but that he needed to look up some law. The judge asked him why, and counsel responded that the evidence had been inadmissible under the Finnerty rules. Counsel said that he had expected that the evidence given would be confined to the written statement made by his client (and he therefore had not raised an objection in advance).

11. The trial judge refused to discharge the jury, saying:

“Well, it is not at all comparable with Finnerty, because what the man says is not that I’ve no comment, I rely entirely on what I said in my statement, which is completely different to Finnerty and would not be a ground for discharging the jury whether you look up law or not.”
12. The appellant then went into evidence. He was not asked about the interview, either in evidence in chief or in cross-examination. No comment on any part of the interview was made by counsel on either side in their closing speeches. In summarising the evidence in his charge to the jury, the trial judge referred to the appellant’s written statement and sworn evidence, and summarised the key assertions. He did not refer to the contentious part of the interview. However, the entirety of the interview memo was made an exhibit and was given to the jury.
13. Following his conviction the appellant was sentenced to a term of imprisonment of two years. Although the Court of Appeal rejected his appeal against conviction it reduced the sentence to twelve months. Bail was subsequently extended by order of this Court.
Decision of the Court of Appeal
14. The appellant originally appealed against his conviction on two grounds. For the purposes of this appeal the only relevant issue argued was that the trial judge erred in refusing to discharge the jury “in circumstances where evidence was adduced by the prosecutor which had no probative value and excessively prejudiced the appellant”.

15. The judgment of the Court of Appeal was delivered on the 13th October, 2016, (see The People at the Suit of the Director of Public Prosecutions v. K.M. [2016] IECA 283). It is apparent from the judgment that the case made on behalf of the Director was that what had occurred did not offend against the right to silence or the privilege against self-incrimination, and that the appellant’s response to the garda questions was not to be compared with a person who actually remains silent, or who consistently says “No comment” or “No comment on the advice of my solicitor”. He had elected not to maintain silence but instead had presented a statement.

16. In the course of its summary of the Director’s submissions, the judgment attributes to her the contention that, consonant with this, the defence had presented to the jury an accused who showed consistency in his account, provided the jury were prepared to accept it, between (i) the contents of his statement; (ii) his responses to the supplementary questions put to him in interview; and (iii) his testimony in the trial. Having considered the trial transcript it appears that this was an error – no reference was made by defence counsel to the supplementary questions. It may be that prosecution counsel was advancing an argument that this course of action would have been open to the defence, but it is clear that the latter did not share this view.

17. The Court of Appeal stated that it agreed with the case made by the respondent, saying (at paragraph 25):

“There is a great deal of difference between saying ‘No comment’ or ‘I don’t wish to say anything’, on the one hand, and saying, having already in fact commented, that ‘I have nothing to add to what I have said already’, on the other hand. The latter was what, in effect, this appellant was saying when confronted with the specifics of the complainant’s statement of complaint. He was not saying nothing or refusing to comment.”
18. The Court seems also to have agreed with the suggestion (if such it was) that the evidence in fact favoured the accused, saying that:
“It was the prosecutor’s duty, as a ‘Minister for Justice’, to elicit before the jury all admissible evidence gathered in the course of the investigation that was both relevant and probative and not just such evidence as happened to be favourable to the prosecution. The prosecution is not therefore to be criticised for adducing before the jury admissible evidence that was both relevant and probative.”
19. I note here that the phrase “ministers of justice” was used by this Court in Director of Public Prosecutions v. Special Criminal Court [1999] 1 IR 60, in the context of a disputed ruling of a trial court as to the prosecution’s obligation of disclosure. The point being made was that counsel for the prosecution may not act solely in the interests of the prosecution but also bears some responsibility for ensuring a fair trial.
20. The Court of Appeal held that the evidence was probative

“…in the sense of demonstrating that, when confronted with the specifics of the complainant’s allegations, the appellant’s answer was to continue to rely on his pre-prepared statement in which he had expressly said that the allegations against him were blatantly false.”
21. This was “on one view of it”, potentially of assistance to the defence. The questions asked did not “suggest the accused’s guilt” but merely afforded him the opportunity to add to, or change, what he had said in his statement, in the light of the specific details of the complaint.
22. The Court of Appeal therefore concluded that in the circumstances the appellant had not been exercising his right to silence.
Submissions in the appeal
23. The dispute in this case is about whether or not the appellant’s responses amounted to a refusal to answer questions (and thus an exercise of the right to silence), or relevant and probative evidence not covered by the first rule in Finnerty. As it happens, the second and third rules were complied with, whether or not prosecution counsel and the trial judge thought that they were applicable.

24. The appellant submits that the trial judge and the Court of Appeal erred in their interpretation of what had occurred in the interview. That interpretation is summarised as being that the appellant said, in effect “I have nothing to say in response to this particular question other than what is written in my statement”, whereas the appellant’s contention is that he was saying “I have nothing to say in this interview other than what is written in my statement.”

25. As well as Finnerty, reliance is placed by the appellant on the decision of the House of Lords in R. v. Director of the Serious Fraud Office ex p. Smith [1993] AC 1, which was cited with apparent approval in this jurisdiction by the High Court in Heaney v. Ireland [1994] 3 IR 593. In the House of Lords, Mustill J. noted (at pp. 30-31) that the right to silence does not denote merely a single right but rather “refers to a disparate group of immunities” which includes, inter alia:

“… a specific immunity (at least in certain circumstances which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before trial, or (b) to give evidence at the trial.”
26. Counsel points out that it is common for interviews in detention to result in mixed responses on the part of the suspect, with some questions being answered while others are met with silence or with some form of express refusal to answer. That has given rise to the practice, followed since the judgment in Finnerty, of editing interview memoranda to remove instances of an accused person exercising his or her right to silence. In this regard counsel cites DPP v. Brazil (Unrep., Court of Criminal Appeal, 22nd March, 2002).
27. Counsel submits that the prejudice to the appellant lay in the fact that, in the circumstances of the case, his credibility was squarely pitted against the credibility of the complainant. The presentation of the disputed interview material portrayed him as not being forthright or co-operative with the gardaí, and as having something to hide. The real risk that arose was that the jury might infer guilt from silence.

28. While it is recognised that inferences may now, pursuant to s. 19A of the Criminal Justice Act 1984, be drawn from pre-trial silence in relation to all serious offences, it is submitted that such provisions would be unnecessary if a jury could simply be told that an accused had invoked the right to silence without being given any direction in relation to such. In any event, the safeguards specified in section 19A(3) of the Act were not met in this case. It is argued that the constitutionality of statutory provisions of this nature, as considered by this Court in Rock v. Ireland [1997] 3 IR 484, is dependent on such limiting factors. It is also submitted that, if a “no comment” interview can be adduced in evidence in this fashion, the caution in its current form is inadequate and would require amendment.

29. Reference has also been made to the jurisprudence of the European Court of Human Rights, beginning with Funke v France (1993) 16 EHRR 297 (where the Court held that the right to silence or privilege against self-incrimination was protected under the fair trial guarantee in Article 6 of the Convention). That was confirmed in Murray v. United Kingdom (1996) 22 EHRR 29, although the Court made it clear that the right to silence was not absolute and that it could in some circumstances be limited by appropriate inference-drawing provisions.

30. On behalf of the respondent, it is submitted that there was no exercise of the right to silence, and therefore no question of drawing adverse inferences from such an exercise. It is pointed out that the act of volunteering an exculpatory statement is an instance of waiving the right to silence. Evidence that the suspect referred to the statement in response to subsequent questions, saying that he had nothing further to add, should be seen as relevant and probative evidence which might assist the jury in assessing the credibility of the statement given.

31. It is submitted that the situation here is similar to that of DPP v. O’Shea [2014] IECCA 49. In that case the trial judge had agreed to the deletion of most “no comment” responses from the memoranda of interview but had left others for the purpose, as described in the Court of Appeal judgment, of giving context to the question being asked. The Court of Appeal considered that she had done so correctly and that only material of probative value had been admitted. Finnerty was distinguished because the interviews with Mr. O’Shea had produced evidence which could be described as having some probative value, while no statement of any description was offered by the accused in Finnerty. The respondent submits that the rationale behind the decision in O’Shea was to distinguish between an accused invoking his right to silence and an accused who decides to answer particular questions while remaining silent when follow up questions are posed.

32. The respondent also cites DPP v. O’Reilly [2009] IECCA 18 and argues that there is a difference between disclosing to the jury the simple fact that an accused exercised his right to silence in questioning and inviting the jury to draw adverse inferences from the failure of an accused to give certain explanations to the gardaí while in custody.

33. It is stressed that the jury in the present case was not invited by the prosecution or the trial judge to draw any inferences, and nor did the prosecution invite the jury to infer that the accused had exercised his right to silence. In fact, the prosecution case was and is that the appellant at no stage exercised his right to silence.

34. The respondent submits that the rights protected by Article 6 of the European Convention of Human Rights are not absolute and cites the judgment of the European Court of Human Rights in the case of Murray v. United Kingdom (1996) 22 EHRR 29.
The constitutional status of the right to silence
35. There is no doubt about the proposition that the right to silence is protected by the Constitution. In Heaney v. Ireland and Rock v. Ireland, this Court approached the matter on the basis that the protection lay in the provisions of Article 40.6, finding that the right to silence was a corollary of the right of freedom of expression.

36. However, much of the emphasis in Rock is on the possible consequences of inference-drawing provisions (in that case, ss. 18 and 19 of the Criminal Justice Act 1984) for the fairness of the trial process. It was stressed that the trial court was entitled but not obliged to draw inferences, and that there were safeguards for the accused in the trial process. At p. 497 of the report Hamilton C.J. stated:

“In deciding what inferences may properly be drawn from the accused person’s failure or refusal, the court is obliged to act in accordance with the principles of constitutional justice and having regard to an accused person’s entitlement to a fair trial must be regarded as being under a constitutional obligation to ensure that no improper or unfair inferences are drawn or permitted to be drawn from such failure or refusal.”
37. Subsequent authorities have confirmed that, notwithstanding the Heaney analysis, the right also belongs to the group of fair trial rights protected by Article 38.1 (the right to trial in due course of law). This is clearly stated in Re National Irish Bank [1999] 3 IR 145, where one of the issues was whether answers given to Companies Act inspectors, under powers of compulsion, might be used in criminal proceedings against the persons questioned. Barrington J. (with whom the other members of the Court agreed) traced the common law development of the privilege against self-incrimination and then went on to consider its status under the provisions of the Constitution, with particular reference to Article 40.6.1° and Article 38.1. In the context of the case, Article 40.3.2° was seen as reinforcing the other two constitutional guarantees.
38. Having considered the principles considered by the Court in Heaney v. Ireland, Barrington J. held that, so far as Article 40.6 was concerned, the powers given to the inspectors to compel answers were not disproportionate to the public interest in investigating illegality and malpractice in the banking sector. Accordingly, interviewees were not entitled to refuse to answer questions. However, different considerations arose in respect of Article 38.1.

“That Article, as reinforced by Article 40.3, deals with the conduct of a criminal trial and provides that no person is to be tried on any criminal charge ‘save in due course of law’. The phrases ‘due course of law’ and ‘due process of law’ like the phrase ‘equality before the law’ embody dynamic constitutional concepts into which lawyers have obtained deeper insights as society has evolved. But it is doubtful if the principle of proportionality – so important in other branches of constitutional law – can have any useful application here. A criminal trial is conducted ‘in due course of law’ or it is not.”
39. This approach is consonant with the analysis of this Court in Director of Public Prosecutions v Gormley [2014] 2 IR 591 of the right to consult a solicitor prior to questioning by gardaí. Prior to Gormley this issue had generally been dealt with as a matter affecting the legality of a suspect’s detention. Having considered the authorities in this jurisdiction and other common law countries, as well as the jurisprudence of the European Court of Human Rights, the members of the Court agreed with Clarke J. that arrest and detention for the purposes of investigation should be regarded as a stage of the criminal trial process, attracting the protection of Article 38.1. The right to legal advice was thus seen as part of the protection afforded by the Constitution to fair trial rights. While legal advice might be needed by a person in detention in relation to many matters, Clarke J. was satisfied that the constitutional right to advice was designed to support the right not to incriminate oneself, amongst other rights including the right to a fair trial. It was, for that reason, an important constitutional entitlement of high legal value.
Finnerty and subsequent authorities
40. Finnerty is sometimes characterised as a case where the accused made no comment in response to questioning. This is true to a certain extent – he answered no questions during the interviews while he was in garda custody. However this is not an entirely comprehensive description.

41. The complainant in the case alighted from the accused’s car in a distressed state and immediately made an allegation of rape to gardaí in the vicinity. The accused was thereupon confronted and cautioned by the gardaí. His response was exculpatory in effect – he denied rape and said that he and the complainant had engaged in consensual kissing “and such”. He was then arrested and detained, and availed of his right to legal advice. He made no further statement of any sort.

42. At the trial, the complainant was cross-examined by counsel for the defence on the basis that her entire account of the evening was false and that the accused would give evidence of consensual sexual intercourse. He did so, and prosecution counsel was permitted, on application to the trial judge, to cross-examine him as to the fact that he had not given this account to the gardaí.

43. The conviction was initially upheld by the Court of Criminal Appeal for reasons that are particularly relevant to the instant case. In an ex tempore judgment Lynch J. said:

“The Applicant claims that that permission to give that evidence of his silence and to cross-examine him about the silence was a breach of his right to silence. Now his right to silence was emphasised by the learned trial judge and the only purpose of this evidence and cross-examination by the prosecution of the Applicant related to the reliability of the Applicant’s detailed statement of explanation. There were before the jury manifestly two contradictory versions of what had happened on this particular night. The issue was which of these versions was to be believed and it was quite proper and reasonable for the prosecution to ask the Applicant why he had not given the full exculpatory account of the evening’s events at an early stage instead of for the first time during the course of the trial.
This course of events does not trench in any way on the right to silence which as I have said was emphasised very strongly by the learned trial Judge but this form of evidence of the Applicant’s silence in the Garda Station and of cross-examination by the prosecution was highly relevant to the credibility of the Applicant’s lately preferred account of events. The evidence as to his silence and his cross-examination about the silence were permitted and adduced only for that purpose and that was made quite clear and in the circumstances of this case that course of proceedings was perfectly permissible and proper.”

44. It was noted in the subsequent appeal to this Court, where the appeal was unanimously allowed, that the reference in the judgment to the trial judge having emphasised the right to silence was mistaken. He had in fact made no reference to the accused’s right to silence while under questioning, although he had stressed that the accused had not been obliged to give evidence in his own defence.
45. Giving the sole judgment in this Court, Keane J. emphasised that the more general constitutional and legal dimensions of the right to silence were not in issue in the appeal. Similarly, the court was not concerned with the common law principles relating to the possible admissibility of a statement made in the presence of a defendant accusing him of a crime, upon an occasion which might reasonably be expected to call for some explanation or denial. At this point the judgment continues:

“Nor are we concerned with the different considerations which may arise where the accused denies the charge and the adduction of that evidence, given its extremely limited probative value, may, at least in some circumstances, compromise the fairness of the subsequent trial. For that reason, it has been the law both in England and Ireland since the leading case of R. v. Christie [1914] A.C. 545, that a trial judge should in most cases take care to ensure that such evidence is excluded where it has little or no evidential value. In the present case, that issue does not arise since the adduction in evidence of the exculpatory statement made by the applicant to Garda Healy, when he was stopped by the gardaí, was not objected to on his behalf.”
46. The sole issue in the appeal was the claimed right of a person detained under s.4 of the Criminal Justice Act 1984 to refuse to answer questions put to him by gardaí during the course of his detention and the corollary of that right, i.e. the need to ensure that no inferences adverse to him were drawn at any subsequent trial from the exercise of that right.
47. Having outlined the position at common law before the enactment of the Act of 1984, Keane J. found that the introduction of that Act, along with the safeguards provided for the rights of persons detained pursuant to its provisions, did not in any way modify the right of a person so detained to refuse to answer questions put to him by the gardaí and his entitlement to be reminded of that right before any questioning began. He continued:

“That right would, of course, be significantly eroded if at the subsequent trial of the person concerned, the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardaí an account similar to that subsequently given by him in evidence. It would also render virtually meaningless the caution required to be given to him under the Judges’ Rules.
It must also be borne in mind that it is a usual practice for solicitors to advise their clients while they are in custody, not to answer any questions put to them by the gardaí, if they consider that it would not be in their interests to do so. However, if the jury could be invited to draw inferences from the failure to reply to such questions, the result would be that persons in custody would have to be advised by solicitors that, notwithstanding the terms of the caution, it might be inimical to their client’s interests not to make a full statement to the gardaí, thereby eroding further the right to silence recognised at common law.

Had the Oireachtas intended to abridge the right to silence in this manner, it would have expressly so legislated. Sections 18 and 19 of the Act of 1984 enable the court of trial to draw inferences from the failure or refusal of a person arrested by the gardaí, to account for the presence of certain objects in his possession, or his having been found at a particular place. Such inferences may afford corroboration of any evidence, but the person may not be convicted, of an offence solely on the basis of such inferences. This leads to the inevitable conclusion that no such general abridgment of the right of silence was intended to be effected where a person declined to answer questions put to him by the gardaí during the course of such a detention.”

48. Having regard to the judgments of the Court in Heaney v. Ireland, Rock v. Ireland and Re National Irish Bank Ltd., Keane J. concluded that the right of suspects in custody not to answer questions, recognised at common law, was also a constitutional right and the provisions of the Act of 1984 must be construed accordingly. In the absence of any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion followed “inevitably” that the right was unaffected by the Act (save in cases coming within ss. 18 and 19), and must be upheld by the courts.
49. Given the course of events in the trial in Finnerty, Keane J. considered that the jury might well have been under the impression that they were entitled to draw adverse inferences from the failure of the defendant to give his version of events in detail in the garda station. Any inferences drawn to that effect would have been in direct violation of the applicant’s constitutionally guaranteed right to remain silent, and might well have been a factor in the jury’s assessment of the credibility of the applicant’s account of what happened between him and the complainant.

50. The consequences of the ruling in Finnerty were further explored in a sequence of appeals before the Court of Criminal Appeal.

51. In The People (Director of Public Prosecutions) v. Brazil (Unreported, Court of Criminal Appeal, 22nd March, 2002), the prosecution relied in part on evidence of verbal statements alleged to have been made by the accused in the course of interview. The defence had objected to the evidence on the ground that it was not in any way probative and was prejudicial. The trial judge directed that the interview notes be edited to exclude the parts that simply recorded the exercise of the right to silence, leaving to the jury only those parts that recorded statements that were either incriminatory or exculpatory. That was done, but one of the garda witnesses volunteered in evidence the fact that the accused had been asked a number of questions to which he had made no reply. The Court of Appeal (presided over by Keane C. J.) held that this “passing reference” would not of itself be sufficient to render any verdict subsequently arrived at unsafe or unsatisfactory. Referring to Finnerty, Keane C. J. said:

“It has to be remembered that in the DPP v Finnerty case the applicant had maintained his right to silence throughout the garda interview and nonetheless the prosecution in that case sought to adduce evidence and indeed to cross-examine the defendant when he came to give evidence as to why he had given no account of the matter to the gardaí. That is the context in which that ruling of the Supreme Court has to be seen. In the present case the court is satisfied that the ruling of the trial judge perfectly properly sought to exclude, as far as possible, any indication that the applicant had simply declined to answer questions and the volunteering by Sergeant McCarrick of that particular answer would not vitiate the account of the interview and the record of the interview which was before the jury to such an extent as to render it unsafe for the jury to take into account.”
52. In The People (Director of Public Prosecutions) v. McCowan [2003] 4 I.R. 349 the evidence went beyond “a passing reference”. Two garda witnesses gave evidence that in some interviews the accused had stated in answer to many questions that he would say nothing on the advice of his solicitor. The first reference was volunteered by the witness, but the second was in response to a leading question from counsel for the prosecution. Giving the judgment of the Court of Criminal Appeal, Hardiman J. said:
“We consider that this should not have occurred and indeed it is not disputed that this should not have occurred. The authority of the court and the judgment of Keane J. in The People (Director of Public Prosecutions) v. Finnerty [1999] 4 I.R. 364 is very clear. That authority is also very simple to observe and we would be gravely perturbed if it were thought that it could be departed from at the expense of a rebuke or a comment by this court, but that it would not be taken seriously beyond that.”
53. At p. 353 of the report, having dealt with other issues, the judgment returns to this topic. It is stated that a court should be slow to accept an argument by the prosecution that nothing turned on a breach of the rules of this nature.
“We are certainly slow to accept it in the circumstances of this case because we feel that The People (Director of Public Prosecutions) v. Finnerty was well established at the time that this trial took place and that this was a pretty clear breach of what is laid down in that case. Therefore we are not disposed either to consider that it was of little or no importance (it was of sufficient importance for the prosecution deliberately to bring the evidence out), or that the proviso could be applied as we could not be sure that no miscarriage followed from it.”
54. Finnerty was further discussed in The People (Director of Public Prosecutions) v. O’Reilly [2009] IECCA 18. The issue there arose from the fact that, while the interview memoranda given to the jury had been edited in order to comply with Finnerty and to exclude irrelevant material, the times at which the interviews started and ended had been left in. The defence argued that since some of the memoranda would appear very short considering the length of time taken in interview, the jury members would inevitably become aware that the accused had exercised his right to silence for at least some of the time. It was submitted that this breached the Finnerty principles.
55. In rejecting this ground of appeal, the Court of Criminal Appeal (in a judgment given by Murray C.J.) observed that it was not the law that any evidence from which it might be inferred that an accused had exercised his right to silence should be excluded from the jury for that reason alone. That observation is followed by the comment that such evidence could certainly be excluded on grounds of irrelevance if it was not relevant to an issue in the trial.

56. Murray C.J. analysed Finnerty in the following terms:-

“The Finnerty case was not about disclosing to the jury just the simple fact that an accused had exercised his right to silence but the overt proof of that fact for the purpose of inviting the jury to draw adverse inferences from the failure of the accused to give certain explanations to the gardaí when in custody. The Finnerty case concerned a decision by the prosecution, in the course of the trial, and permitted by the trial judge, to expressly elicit from An Garda Síochána who interviewed the accused, the fact that he declined to say anything during such interviews in relation to the complainant’s accusations. This was done by the prosecution for the express purpose of inviting the jury to draw adverse inferences as to the credibility of the accused and in particular for the purpose of cross-examining the accused, when he gave evidence, (it already having been stated that he would be giving evidence) as to why he did not give his account of events when interviewed by the members of An Garda Síochána during his detention. Nothing of that nature occurred in this case.”
57. It was noted that, by contrast, in O’Reilly the prosecution had consciously sought not to introduce evidence of questions which the accused had declined to answer, because it had no evidential value. At no stage had the prosecution invited the jury to infer that the accused had exercised his right to silence, and the jury had not been left under the impression that they were entitled to draw inferences adverse to the accused from his silence. The trial judge had told them that what they heard in evidence with regard to the interviews were the answers to relevant questions, and that anything else that had occurred was irrelevant and not of evidential value.
58. This case is not concerned with the operation of any of the various statutory provisions that can lead, in certain circumstances, to the drawing of inferences at trial from evidence that the accused exercised the right to silence in the pre-trial investigation. However it is relevant to note that the Court has emphasised that such provisions must be strictly construed, and that the statutory safeguards provided must be enforced. In Director of Public Prosecutions v. A. McD. [2016] 3 IR 123 the discussion by McKechnie J. of the operation of s. 19 of the Criminal Justice Act 1984 commenced with the observation that the right to silence, in its variety of forms, was based not only on the common law but also had a “strong constitutional setting”.

“In the context of a detained person who is under interrogation as a suspect in the commission of a criminal offence and who subsequently is in fact charged with such an offence, the right, if in issue at the trial, is firmly anchored in Article 38.1 of the Constitution. This is particularly so where, as in this case, the potential consequences of exercising that right are directly in play at the trial. Therefore, it is not necessary to say where in other circumstances the right can also be found, such as in Article 40.3.1° of the Constitution, or in Article 40.6.1° as a corollary to the right of freedom of expression, as stated by this Court in Heaney v. Ireland [1996] 1 I.R. 580 and reiterated in Rock v Ireland [1997] 3 I.R. 484 at p. 499.”
59. McKechnie J. therefore stated that, notwithstanding the authorities pursuant to which statutes providing for the drawing of inferences from silence had been upheld, it remained the case that the provisions in question amounted to an impairment of a right that had protection at constitutional level.
60. In McD. part of the debate concerned the question whether the respondent to the appeal had, in fact, “failed or refused” to give an account for the purposes of the section. In discussing this issue McKechnie J. observed that a refusal will entail a degree of deliberateness and an unwillingness to engage with the investigating authorities.

61. In Director of Public Prosecutions v Wilson [2017] IESC 53 the Court quashed a conviction where the inference provisions had been invoked incorrectly.
Conclusions
62. The prosecution argument in the instant case is, of course, that what occurred between the appellant and the interviewing garda is not properly described as an exercise by the appellant of the right of the right to silence, and that it did not seek to have the jury draw any adverse inferences from it. It has maintained that the responses of the appellant to the supplementary questions were relevant and probative in that they demonstrated that the appellant was standing by what he had said in his statement.

63. In my view this contention is not only questionable in relation to the facts of the case but leaves open a real risk that what occurred in the trial was contrary to the principles established in the authorities.

64. The discussion in this case, as in Finnerty, is concerned with the consequences of a suspect’s responses to garda questioning, and not with the different evidential consequences that may attend failure to respond to allegations in other settings.

65. The first consideration is that the Court is dealing with a right protected under the Constitution, as well as at common law and under the European Convention on Human Rights. Waiver of a constitutional right is of course possible. The commonplace occurrence of admissions of guilt to the gardaí, and formal pleas of guilty in court, means that the right to silence is probably waived every day in the garda stations and courts of every county. However it is not to be lightly assumed that waiver of a constitutional right has taken place – the courts have always held that it must be clear from either an express statement or by necessary implication that the suspect has spoken freely and voluntarily, in the knowledge that he or she is not obliged to do so. In cases of dispute, it has always been for the prosecution to prove this beyond reasonable doubt.

66. Furthermore, it has always been accepted that a suspect is entitled to elect to answer some questions and to refuse to answer others. That is why practitioners and trial judges are used to the concept of editing interview memoranda. The making of a voluntary statement, as in this case, amounts to a clear waiver of the right to silence to that extent, but it does not follow that the suspect thereby waives the right in respect of either a prior or subsequent refusal to answer questions. I consider that the constitutional protection afforded to the right to silence is such that waiver cannot be held to be implied by ambiguous words. Moreover, it is not appropriate to parse the words used as if they were the words of a parliamentary draughtsman. A consideration of the context is essential. I would therefore hold that it was incorrect for the trial judge to distinguish Finnerty simply on the ground that the appellant had not employed the “no comment” formula.

67. The Court of Appeal saw the answers in this case as amounting, in each instance, to a definite response to the questions posed, confirming the appellant’s statement that the allegation against him was false. This view would imply that it was as if the appellant had stated, in response to each question, that he had already said that everything alleged by the complainant was false. Whether that is the way the trial judge saw it is not at all clear from his ruling – all he said was that the case was not the same as Finnerty. Yet Finnerty involved a suspect who gave an initial exculpatory statement and thereafter refused to answer questions. If the trial judge thought that there had been an express or implicit waiver of the right to silence in this case, he should have explained his finding.

68. My own view, looking at the transcript, would be that on the face of it the probability is that the course of action intended and adhered to by the appellant during the interview was to answer questions about himself that did not involve discussion of the allegation made against him, and then, when the allegation was specifically raised, to state that he would say nothing other than what was in his prepared statement. He was not thereby implying that each and every detail contained in the complainant’s statement was untrue – some, such as a reference to his wife’s practice as a reflexologist, were entirely innocuous. If that view is correct, then the correct interpretation of what happened would be that the appellant was refusing to answer questions put to him by the gardaí about the allegation. That is an exercise of the right to silence.

69. However, it may be that this serves only to demonstrate that it is possible for different judges reading the interview notes to reach different interpretations of the words used by the appellant. The problem is that because of the way events unfolded in the trial, the issue was never put up for resolution by the trial judge until the contentious evidence had already been given. It is unfortunate that counsel for the prosecution did not adopt the normal practice of alerting the defence to the fact that he intended altering the course taken by him in the first trial, so that objection could have been taken at the appropriate time and, if necessary, evidence could have been heard on the issue.

70. Having ruled that the evidence was not rendered inadmissible by reason of the Finnerty principles, the trial judge did not indicate a view as to the basis for admitting it. He did not explain its relevance to any issue in the trial, or why he was rejecting counsel’s complaint that his client had been prejudiced in the eyes of the jury. It must be borne in mind that one of the primary considerations in relation to the admissibility of evidence is relevance. If evidence is clearly irrelevant it may be possible to disregard it even where it has already been adduced before the jury, but it must be excluded if its relevance and probative value are outweighed by its prejudicial effect.

71. It must be assumed that the trial judge thought that the evidence was both relevant and probative, and not unduly prejudicial, but in that case it was, in my view, necessary that some guidance should have been given to the jury as to how it should be treated. The closing speech of counsel for the prosecution did not advert to the matter at all and, as it happens, the judge did not, in his charge to the jury, address in any way the lawful approach to drawing inferences from evidence. Juries are entitled to assume that evidence presented to them is relevant and probative, and if they are not instructed as to the drawing of inferences may well feel further entitled to draw any inferences that appear to them to be appropriate.

72. It may be that the jury drew the favourable inference that the appellant had maintained a consistent position throughout. However, in the absence of any guidance as to how they should approach the evidence, or what it was intended to prove, it seems to me that the court could not discount the real possibility that the jury in this case drew an adverse inference to precisely the same effect as that of the Court of Criminal Appeal in Finnerty – that the deliberate refusal of the appellant to engage with the specific questions reflected adversely on the credibility of his sworn evidence. The judgment of this Court in that case explains clearly why such an approach is impermissible.

73. This is not, as in Director of Public Prosecutions v. O’Reilly, a question of a mere passing reference in the evidence. The interview notes were read out in full before the jury and were given to them unedited as an exhibit. As Hardiman J. said in McGowan, the court cannot accept that nothing turned upon this factor.

74. I would respectfully adopt the words of Cory J. in R. v. Chambers [1990] 2 S.C.R. 1293:

“It has as well been recognised that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.”
75. In the circumstances I would allow the appeal and quash the conviction.

Re National Irish Bank

[1999] 1 I.L.R.M. 321
Shanley J
On 30 March 1998 the Honourable John Blayney, a retired judge of the Supreme Court, and Thomas Grace, FCA, were appointed by the High Court on the application of the Minister for Enterprise and Employment pursuant to s. 8(1) of the Companies Act 1990 to be joint inspectors to investigate and report on the affairs of National Irish Bank Ltd relating to:

(i) The improper charging of interest to accounts of customers of the said National Irish Bank Ltd between 1988 and 30 March 1998;

(ii) The improper charging of fees to accounts of customers of the said National Irish Bank Ltd between 1988 and 30 March 1998;

(iii) The improper removal of funds from accounts of customers of the said National Irish Bank Ltd between 1988 and 30 March 1998;

(iv) All steps and action taken by National Irish Bank Ltd, its directors and officers, servants or agents in relation to the charging of such fees or interest or the removal of any funds without the consent of the account holders and their actions arising from the issues when discovered;

(v) The manner in which the books, records and accounts of the said National Irish Bank Ltd reflected the foregoing matters;

(vi) The identity of the person or persons responsible for and aware of any of the practices referred to above;

(vii) Whether other unlawful or improper practices existed in National Irish Bank Ltd which served to encourage the evasion of any revenue or other obligations on the part of the bank or third parties.

The High Court having so appointed the inspectors, directed them to investigate the said matters and deliver an interim report to the High Court not later than 22 June 1998. Prior to that date, the inspectors sought the court’s directions on a number of matters in consequence of which Kelly J pursuant to s. 7(4) of the Companies Act 1990 directed, on 11 June 1998, that there be a trial of issues identified in a draft notice of motion then proffered to the court by the inspectors. The following are the issues:

1. A determination that persons (whether natural or legal) from whom information, documents or evidence are sought by the inspectors in the course of their investigation under the Companies Act 1990 are not entitled to refuse to answer questions put by the inspectors or to refuse to provide documents to the inspectors on the grounds that the answers or documents may tend to incriminate him, her or it.

2. A determination that the procedures outlined by the inspectors in their letters dated 4 June (contained within exhibits C and D to the affidavit of John Blayney and Tom Grace sworn herein on 11 June 1998) are consistent with the requirements of natural and constitutional justice.

Kelly J, in his order of 11 June 1998, directed service of the notice of motion on National Irish Bank Ltd (herein called NIB), the Attorney General, the Minister for Enterprise and Employment and on an employee representing all employees and agreed by such employees to represent them.

In an affidavit sworn on 11 June 1998 the inspectors indicated the work undertaken by them up to that point in time. They indicated that they had written to the bank and all its current and former employees who held office since 1988 asking for any information or documents relevant to the enquiries of the inspectors. The inspectors also advertised in the newspapers and also set about arranging interviews. After writing to these employees, they received correspondence from solicitors acting for such employees or from employees themselves. In summary that correspondence asserted that the employees (or former employees of NIB) had:

(a) The right to be legally represented at any interview.

(b) The right to be legally represented and present when evidence was given concerning their clients.

(c) The right to cross-examine anyone giving evidence concerning their clients.

(d) The right to advance notice of questions to be asked at interview.

(e) The right to all documents concerning their clients.

(f) The right to refuse to answer questions where the answer might possibly incriminate them.

Having regard to these assertions and concerns, the inspectors wrote to the solicitors for the employees or former employees of NIB on 4 June 1998. Their letter to Mason Hayes & Curran (who represented 75 employees) was as follows:

Dear Sirs,

National Irish Bank Limited

Your clients John O’Reilly and others

We refer to your letter of 21 May 1998, your fax of 26 May 1998 and our subsequent meeting with your Mr Hoy and Mr McDowell SC. Arising from that correspondence and meeting it may be helpful to set out the approach we intend to take in relation to certain issues discussed.

1. Right to refuse to answer questions on the ground of self-incrimination.
We have been advised that a person giving evidence to inspectors pursuant to s. 10 of the Companies Act 1990 is not entitled to refuse to answer any question on the ground that the answer may tend to incriminate him or her. We understand that you may take a different view or at least do not consider that you can advise your clients to accept without determination of the issue by the court, that they are not entitled to refuse to answer questions on this basis. Without prejudging the course the inspection may take, we also understand that this issue is likely to arise in the course of interviews and indeed you have expressed concern that one or other of your clients might somewhat arbitrarily become the subject of a test case.

2. Procedures to be followed.
We have explained that we consider that the first phase of interviews with witnesses will be an information gathering exercise. These interviews will be conducted in private. A transcript of the witness’s evidence will be available to the witness from the stenographers on payment of the cost of the additional copy. We have no objection to any witness being accompanied by a legal adviser at such interview but, with respect, we consider that it would be inappropriate, certainly premature and probably impossible to treat such interviews as approximating to a trial with an entitlement to attend and cross-examine the evidence given by other witnesses.

There can be no question of our indemnifying your clients or any of them in relation to costs whether legal or otherwise. S. 13 of the Companies Act 1990 states that the expenses of and incidental to an investigation shall be defrayed by the Minister for Justice. We have no role to play in this regard and any question of costs which you wish to pursue must be addressed to the minister.

We do not propose to circulate lists of questions in advance of the taking of any evidence from witnesses. Given the nature of our work it will be impossible to predict with certainty what questions will or will not arise at any particular interview.

If however the outcome of the first phase of interviews indicates that it is possible that adverse conclusions may be drawn in relation to certain individuals dependent in whole or in part on the testimony of others then it is our intention that a hearing will be held at which such issues can be addressed, and at which persons who may be at risk of an adverse finding will be entitled to attend to hear the evidence, cross-examine the witnesses and give evidence themselves. In the light of these procedures we consider it would be inappropriate and inconsistent with the statutory procedure to provide copies of the draft report to witnesses and invite comments on it.

3. Request for assistance by letter 8 May 1998.
The matters the subject matter of this inspection have already been the subject of public discussion and internal and external enquiries. We believe your clients ought to be able to provide this assistance promptly and we look forward to receiving such documentation and information as your client possesses, as soon as possible and in particular without awaiting the outcome of any proceedings which may be initiated to clarify other issues. In this regard we confirm that the documents referred to are documents in your clients’ own possession.

We understand from the meeting of 25 May 1998 that your clients as presently advised do not accept that they are not entitled to refuse to answer questions on the ground of self-incrimination when interviewed by the inspectors. You might confirm that this remains the case. If so, it is our intention to bring the matter before the court at the earliest possible opportunity to obtain a definitive ruling and avoid unnecessary delay, expense and confusion. It is not clear if your clients also take issue with any aspect of the procedure we propose to adopt. If they do, we invite you to so inform us immediately in order that this issue could also be determined at the same time and any unnecessary delay avoided.

We await hearing from you.

Yours faithfully,

John Blayney and Tom Grace

Joint Inspectors

It is clear from this letter that the inspectors propose a two stage procedure in their examination: the first, an information gathering exercise; the second stage, arising only when the first stage indicates it is possible that adverse conclusions may be drawn in relation to certain individuals dependent in whole or in part on the testimony of others. At the latter stage such individuals at risk will be entitled to attend, hear the evidence, cross-examine the witnesses, and give evidence themselves.

John O’Reilly, the manager of the Limerick branch of National Irish Bank Ltd, is the employee of NIB agreed by his fellow and former employees to represent them on the hearing of this notice of motion. He has been since 1969 an employee of Northern Bank Ltd, now known as National Irish Bank Ltd. In an affidavit sworn by him on 24 June 1998, he indicated the concerns of himself and his fellow employees and former employees that if they are to answer questions posed by the inspectors they should be entitled to avail of the privilege against self-incrimination. He further indicated that this Court should decide not only whether he was compelled to answer such questions but also whether such questions could be used against him in subsequent legal proceedings.

The right to silence and the privilege against self-incrimination

The common law privilege against self-incrimination has been part of English law since the constitutional struggles which resulted in the abolition of the Courts of Star Chamber and High Commission in the second half of the 17th century. While the word ‘privilege’ has been associated with the phrase since those early days, it should be said that the privilege against self-incrimination has always encapsulated a right in the individual to refuse to answer a question or produce a document when to do so would in the opinion of a court tend to expose such an individual to a real risk of criminal prosecution or penalty. The right is one which is vested in witnesses before courts and in all persons subjected to investigations whether they be formal investigations or not.

There are a number of important values underlying the privilege: it is, first and foremost, concerned with respecting the will of an accused person to remain silent; but it is also a privilege which recognises the right to privacy: as Lord Mustill said in his speech in R. v. Director of Serious Fraud Office, ex p. Smith [1993] AC 1 at p. 31, the right is ‘a reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business’. A further reason justifying the privilege was the prospect of an accused’s guilt being extracted or established solely on his own testimony: such a process was offensive to the common law’s latter day sense of ‘fair play’ and, according to Lord Mustill, it was thus unfair to put a person in a position where he was exposed to punishment whatever he did (at p. 32):

If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal.

While respect for fair procedures, the right to privacy and silence all fostered the growth of the privilege and its extension to extra-curial contexts, its origins, as I have indicated, were provided and provoked by a reaction to the abuses perpetrated by the judges of the Star Chamber in the misuse of interrogation under oath.

In Heaney v. Ireland [1994] 3 IR 593; [1994] 2 ILRM 420, Costello J (as he then was) analysed with clarity the ‘common law right to silence’ (as he described it). He said (at pp. 603–604/428–429):

1. The right to silence can arise in a variety of different circumstances. The nature and scope of the right and the reasons why it was conferred by law can differ in significant ways and will depend on the circumstances in which it is conferred and exercised.

2. The right to silence can properly be referred to as an immunity or a privilege against self-incrimination. This immunity has also been termed by the Supreme Court as ‘the right to protection against self-incrimination’.

3. When a person is arrested as a suspect and subsequently charged with an offence two discrete immunities are conferred by the common law. The common law recognises:

(a) the immunity against self-incrimination of a suspect and
(b) the immunity against self-incrimination of an accused person during his trial.
The suspect’s immunity was developed to avoid the risk of untrue confessions being obtained from a person whilst in police custody. The law does not prohibit a suspect from confessing to a crime — nor does it prohibit the questioning of a suspect in custody. It provides, however, that a suspect should not be required to answer questions on pain of punishment should he not wish to do so: that he is free to remain silent should he so choose and that he should be informed of his right to do so. An accused’s immunity was developed from the objections taken by the common law courts to the abuses arising from court procedures involving the judicial interrogation of accused persons. As a result, an accused cannot be required to give evidence at his own trial or be compelled to adduce evidence on his own behalf and is entitled to remain silent during it, and not to be questioned either by the prosecution or the presiding judge.

4. The common law immunity against self-incrimination also exists in favour of a person who is subject to interrogation by a person in authority other than a police officer.

O’Flaherty J, delivering the judgment of the Supreme Court in Heaney v. Ireland [1996] 1 IR 580; [1997] 1 ILRM 117, noted that an Irish text on the law of evidence ( Gilbert’s Law of Evidence ) published in Dublin in 1794 stated:

Our law … differs from the civil law, that it will not force any man to accuse himself and in this we certainly follow the law of nature, which commands every man to endeavour his own preservation and therefore pain and force may compel men to confess what is not the truth ….

The right to silence, the privilege against self-incrimination and the Constitution

Nowhere in the Constitution is the right to silence or the privilege against self-incrimination expressly recognised. In People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 IR 305, Finlay CJ expressing the view of the court said (at p. 323):

The court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection or self-incrimination is an unenumerated right pursuant to the Constitution.

In Heaney, supra, Costello J held that the immunity (of an accused at his trial) whereby he is not obliged to give evidence or be required to adduce evidence on his own behalf or be questioned against his will was such a basic concept of criminal trials that it was:

[S]o widely accepted as basic to the rules under which criminal trials are conducted that it should properly be regarded as one of those which comes within the terms of the guarantee of a fair trial contained in Article 38.1 (at pp. 606/430).

In the Supreme Court, the court declined to reach a conclusion as to whether Article 38 was applicable or not, but O’Flaherty J, speaking for the court, said at pp. 589/126–127:

The right to freedom of expression necessarily implies the right to remain silent. The provisions of statutes of the British parliament are not necessarily a safe guide to what is constitutionally permissible for the Irish legislature. However, it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right — the right to silence.

It is perhaps appropriate at this stage to indicate the facts in issue in Heaney, supra. The plaintiff was arrested under Part IV of the Offences Against the State Act 1939. S. 52(1) of the Act empowered a member of An Garda Síochána to demand of a person arrested under Part IV of the Act:

A full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or subsections of this Act or any scheduled offence.

S. 52(2) provides that failure to give the account or information demanded shall be an offence carrying a sentence not exceeding six months. The plaintiffs challenged the constitutionality of s. 52 on the grounds, inter alia, that it infringed the constitutionally guaranteed right to silence. Costello J held that while the right to silence was protected by Article 38.1, the provisions of s. 52 were an appropriate restriction of that right. The Supreme Court dismissed the appeal of the plaintiffs against the decision of Costello J. The Supreme Court as I have indicated declined to reach a conclusion as to whether Article 38 was applicable to the case observing at (pp. 584/123) that:

Nothing touching the due course of a trial arose as a result of the plaintiff’s failure so to answer, the court accepts that on occasion what happens prior to trial may have an adverse impact on the trial.

Accordingly, while the Supreme Court recognised a right to silence as a correlative right to the right of freedom of expression contained in the Constitution, it did not exclude the possibility that compelled evidence of an accused at his trial might have the protection of Article 38.1 of the Constitution. Both Costello J and the Supreme Court accepted that whatever the nature of the right ( i.e. whether founded on Article 38 or Article 40) it was not an absolute right and could, in certain circumstances, be abridged by the legislature where it passed a test of ‘proportionality’. Costello J expressed the position thus at pp. 607/431–2:

The objective of the impugned provision must be of sufficient importance to warrant overriding 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:

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible; and

(c) be such that their effects on rights are proportional to the objective …

In the Supreme Court, O’Flaherty J. at pp. 590/128, adopting the same approach expressed the view that:

The court concludes that there is a proper proportionality in the provision between any infringement of the citizen’s rights with the entitlement of the State to protect itself.

A similar approach was adopted by the Supreme Court in Rock v. Ireland [1998] 2 ILRM 35, when considering the constitutionality of ss. 18 and 19 of the Criminal Justice Act 1984. Hamilton CJ, speaking for the court, said at p. 49:

The question to be considered by this Court is whether the restrictions which the impugned sections place on the right to silence is any greater than is necessary to enable the State to fulfil its constitutional obligations.

Abrogation of the privilege against self-incrimination at common law

Lord Mustill in R. v. Director of Serious Fraud Office, ex p. Smith [1993] AC 1 observed that ‘Statutory interference with the right ( i.e. the privilege against self-incrimination) is almost as old as the right itself’. He said (at p. 40):

Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated.

These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. The statute occasionally provides in so many terms that the information may be used in evidence: sometimes that it may not be used for certain purposes, inferentially permitting its use for others; or it may be expressly prescribed that the evidence is not to be admitted; or again, the statute may be silent.

That there was a lengthy history of statutory interference with the right against self-incrimination was accepted by the Supreme Court in Heaney v. Ireland, supra. O’Flaherty J said at pp. 587/125:

The Irish legislative experience is somewhat akin to what has been enacted in Britain but with an important qualification, touching the primacy of the Constitution, which will be considered hereafter.

A selection, but not an exhaustive list, of statutes in diverse areas which require disclosure include: the Customs Consolidation Act 1876; the Road Traffic Act 1961; the Companies Acts, 1963 to 1990; the Income Tax Acts and Finance Acts; the Offences Against the State (Amendment) Act 1972; the Criminal Law Act. 1976; the Criminal Justice Act 1984; the Bankruptcy Act 1988; the Criminal Justice (Forensic Evidence) Act 1990; the Pensions Act 1990 and the Social Welfare (Consolidation) Act 1993.

Having observed on the differences in substance and objectives between the various statutes O’Flaherty J said (at pp. 588/125–126):

In the light of the inconsistencies between each, it would be idle to engage in summarising or parsing the various statutes any further; however, they each serve to illustrate that in certain circumstances a person may be required to disclose information under threat of penal sanction. They invoke a legislative intent to abrogate, to various extents, the right to silence, in a myriad of contrasting circumstances.

Restriction on the constitutional right to silence

As I have already indicated, the acceptance that the right to silence is an unenumerated constitutional right requires the court, when considering the constitutional validity of legislation restricting such a right, to assess whether the restriction which the impugned sections place on the right to silence is any greater than is necessary to enable the State to fulfil its constitutional obligations.

Saunders v. The United Kingdom

Ernest Saunders was the chief executive officer of Guinness plc in 1986 when it was competing with Argyll Group plc to take over a third company, Distillers Company plc. Allegations of misconduct during the course of the take-over battle led the Secretary of State for Trade and Industry in the United Kingdom to appoint inspectors under ss. 432 and 442 of the English Companies Act 1985. Saunders was interviewed on nine separate occasions during the year 1987; transcripts of these interviews were given to the police. Saunders was ultimately charged with offences relating to the illegal share support operation involved in the take-over of the Distillers company. The transcripts were admitted in evidence in the course of his trial and read to the jury over a period of three days. The prosecution sought to contradict Mr Saunders’ oral testimony with the contents of these transcripts. Saunders was convicted on twelve counts in respect of conspiracy, false accounting and theft. He received an overall prison sentence of five years. In its judgment the European Court of Human Rights (at paragraph 67 of its judgment) observed on the investigative functions of the inspectors appointed under the Companies Act 1985:

In this respect the court recalls in its judgment in Fayed v. UK where it held that the functions performed by the inspectors under s. 432(2) of the Companies Act 1985 were essentially investigative in nature and that they did not adjudicate either in form or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities — prosecuting, regulatory, disciplinary or even legislative. As stated in that case, a requirement that such preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6.1 would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities.

Article 6.1 of the European Convention on Human Rights in so far as it is relevant states:

In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an independent and impartial tribunal.

The court, however, held that there had been an infringement of Mr Saunders’ right not to incriminate himself in that transcripts obtained in the non-judicial investigation were used to incriminate Mr Saunders in the trial proceedings. The court expressly rejected the use of such evidence, obtained under compulsion, at the trial of Mr Saunders.

The representative respondent’s submissions

The representative respondent’s submissions on the issue relating to self-incrimination can broadly be summarised as follows:

(i) This Court when deciding whether a person is obliged to answer questions put to him under s. 10 of the Companies Act 1990 must also decide whether (if required to answer) such answers or their fruits may be used in initiating a prosecution or at a criminal trial of such a person.

(ii) The privilege against self-incrimination can only be abrogated by statute or rule of law where such a statute or rule of law recognises that compelled answers to questions (and their fruits) are ‘sterile’ and where the purpose of the requirement is proportionate to the infringement of the right to silence.

(iii) There is a constitutional right in a citizen not to be confronted with the dilemma of ‘confess and be punished or refuse to confess and be punished’.

(iv) There is a constitutional right not to have compelled testimony used against one at one’s trial.

(v) Ss. 10 and 18 of the Companies Act 1990 should be construed together. If s. 18 of the Companies Act 1990 authorises the admission of compelled answers in criminal proceedings it is unconstitutional. It should be construed as excluding such answers and their ‘fruits’.

Part II of the Companies Act 1990

Part II of the Companies Act 1990 deals with investigations and provides for the appointment of inspectors by the court for the purposes of carrying out those investigations. S. 8 in particular provides for the appointment of inspectors on the application of the minister where the court is, inter alia, satisfied that there are circumstances suggesting that the affairs of a company are being conducted in an unlawful manner or for a fraudulent or unlawful purpose. S. 10 imposes an obligation on officers of the company and others to produce all books and documents of the company under investigation and to give all assistance to the inspectors.

S. 10(1) of the Companies Act 1990 provides:

It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of s. 9 to produce to the inspectors all books and documents of or relating to the company, or, as the case may be, the other body corporate which are in their custody or power, to attend before the inspectors when required so to do and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give.

S. 10 (2) provides:

If the inspectors consider that a person other than an officer or agent of the company or other body corporate is or may be in possession of any information concerning its affairs, they may require that person to produce to them any books or documents in his custody or power relating to the company or other body corporate, to attend before them and otherwise to give them all assistance in connection with the investigation which he is reasonably able to give; and it shall be the duty of that person to comply with the requirement.

S. 10(4) of the Act provides:

An inspector may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of the company or other body corporate and such person as is mentioned in subs. (2) in relation to its affairs and may —

(a) administer an oath accordingly,

(b) reduce the answers of such person to writing and require him to sign them.

S. 10(5) of the Act provides as follows:

If any officer or agent of the company or other body corporate or any such person as is mentioned in sub. (2) refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence ….

S. 10(6) provides:

… make any order or direction it thinks fit, including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer particular questions put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector.

S. 18 of the 1990 Act provides as follows:

An answer given by a person to a question put to him in exercise of powers conferred by —

(a) S. 10;

(b) S. 10 as applied by ss. 14 and 17; or

(c) rules made in respect of the winding up of companies whether by the court or voluntarily under s. 68 of the Courts of Justice Act 1936, as extended by s. 312 of the Principal Act;

may be used in evidence against him, and a statement required by s. 224 of the Principal Act may be used in evidence against any person making or concurring in making it.

S. 22 of the Companies Act 1990 provides as follows:

A document purporting to be a copy of a report of an inspector appointed under the provisions of this Part shall be admissible in any civil proceedings as evidence —

(a) of the facts set out therein further proof unless the contrary shown, and

(b) of the opinion of the inspector in relation to any matter contained in the report.

Finally, s. 23(1) of the Companies Act 1990 provides as follows:

Nothing in this Part shall compel the disclosure by any person of any information which he would, in the opinion of the court, be entitled to refuse to produce on the grounds of legal professional privilege or authorise the taking of possession of any document containing such information which is in his possession.

S. 10 obliges directors and others to give all assistance to the inspector: this duty clearly embraces answering questions put to them by the inspector. S. 18 provides that such answers may be used against the person. The only entitlement expressly given to a person to refuse to answer a question is where the answer would disclose information the subject of legal professional privilege. I am satisfied that I cannot construe s. 10 of the Act as preserving the privilege against self-incrimination: to do so would require a qualification on the duty imposed by the Act such that the duty to answer applied save where the giving of such answers would tend to incriminate the witness . No such saver appears in s. 10. It seems to me clear that, had the Oireachtas intended to save the privilege, it could easily have done so. I am satisfied therefore that as a matter of statutory interpretation a witness may not refuse to answer questions on the grounds that his answers might tend to incriminate him and that s. 10 has the effect of impliedly abrogating the right against self-incrimination. I am fortified in this view by the large number of instances where our courts have allowed that statutory provisions have impliedly abrogated the right to self-incrimination. Some of the many statutory provisions are outlined by O’Flaherty J in Heaney v. Ireland, supra, at pp. 587/125. Cases which have dealt with such statutory provisions are People (Attorney General) v. Gilbert [1973] IR 383 (in relation to s. 107 of the Road Traffic Act 1961); Heaney v. Ireland, supra (in relation to s. 52 of the Offences Against the State Act 1939); People (Director of Public Prosecutions) v. McGowan [1979] IR 45 (in relation to s. 52 of the Offences Against the State Act 1939). Apart from the foregoing Irish cases in which the courts were concerned with statutory provisions requiring persons to provide information, there are a number of English cases where the courts in that jurisdiction have construed a statute as not preserving the privilege. In passing, I should note that I have found no Irish or English authority for the proposition (advanced by the respondents) that a valid abrogation at common law requires the sterilisation of answers to questions or the fruits of those answers. The most relevant English authority on the question of abrogation of the privilege is the Court of Appeal decision in In re London United Investments plc [1992] 2 All ER 842 where it was held that a company director or a person possessing relevant information was not entitled to invoke the common law privilege against self-incrimination when questioned by inspectors appointed by the Secretary of State under s. 432(2) of the Companies Act 1985 to investigate the affairs of the company, since it was clear from the scheme and purpose of Part XIV of that Act that inspectors would in many cases be appointed to investigate where there were circumstances suggesting that there had been fraud in the conduct or the management of the company’s affairs, that parliament intended that a person possessing relevant information would be under a duty to comply with the requirements to answer questions properly put to him by the inspectors and that the inspectors’ report might lead the Secretary of State to petition for the winding up of the company or to bring civil proceedings in the company’s name in the public interest. In those circumstances the court held that the privilege against self-incrimination had been impliedly removed by Part XIV of the 1985 Act.

Dillon LJ said at p. 853:

On these provisions, I reach without hesitation the conclusion that as:

(i) inspectors will in very many cases have been appointed where there are circumstances suggesting that there has been fraud in the conduct or management of a company’s affairs, and

(ii) persons questioned are bound to answer the inspectors’ questions, and

(iii) the inspectors’ report may lead the Secretary of State to petition for the winding up of the company or to bring civil proceedings in the company’s name in the public interest, the privilege against self-incrimination is impliedly excluded and is not available to the person being questioned by the inspectors.

While in my view the words of s. 10, and the other sections of Part II of the Companies Act 1990, make it clear that the legislature intended to abrogate the privilege against self-incrimination such as might arise during the course of an inspector’s investigation and, while both Irish and English authority suggests that the privilege can be abrogated by statute, nonetheless the respondents submit that I should go further and examine the legislative history of the Companies Act 1990 with a view to construing s. 10 of the 1990 Act. In particular, the respondents suggest that the court should use the Dáil Debates as an aid in the construction of s. 10(5) of the Act. In People (Director of Public Prosecutions) v. McDonagh [1996] 1 IR 565; [1996] 2 ILRM 468, Costello P sitting as a judge of the Supreme Court expressed the view (with which the other members of the court agreed) at pp. 570/474 that:

It seems to me that the court should have regard to any aspect of the enactment’s legislative history which may be of assistance.

Dáil debates are, of course, a record of part of the legislative history of an Act of the Oireachtas, and it seems clear that I can look at these debates in construing s. 10 of the 1990 Act. The respondents point to the Dáil debates for 14 December 1988; there the Minister for State at the Department of Industry and Commerce said at Volume 385, column 1514:

My main problem with Deputy Cullen’s amendment is that it is in direct conflict with s. 18 which provides that an answer given by a person to a question put to him by an inspector may be used in evidence against him. The section also appears in corresponding UK legislation and is important to ensure effective investigation procedures. Without it I do not think we could have effective investigation procedures. I understand Deputy Bruton’s reservations about this procedure but, now that we have adopted the notion of having it, it is important that we make it effective.

On the other hand, the idea behind the amendment may be covered in s. 10(5) which provides that, if a person refuses to answer an inspector’s question, the inspector may refer the matter to the court. Where this happens the court can inquire into the case and after hearing evidence for the defence, can punish the person concerned as if he had been guilty of contempt of court. If a person persisted in claiming that his refusal to answer a question was based on a fear that he might incriminate himself, the court would be in a fairly good position to adjudicate on any such claim under s. 10(5).

This view as expressed by the minister, it is urged, assists the court in concluding that s.10, far from abrogating the privilege against self-incrimination, was providing a forum for its existence. While of course respecting the views expressed by the minister it does not appear to me, on a perusal of the debate, that his contribution to that debate had the effect of indicating a legislative intention to preserve the privilege against self-incrimination. His contribution represented Dáil material more evidencing his own personal view of the effect of s. 10 than material disclosing the legislative intention behind the section. Having regard to the unambiguous language used in Part II of the Companies Act 1990 (which clearly indicates, in my view, a legislative intention to abrogate the privilege against self-incrimination) I do not feel it would be safe to rely upon what was said by the minister at the committee stage of the Companies Bill 1987 as a guide to the legislative intention behind Part II of the Act.

 

Accordingly, a consideration of the scheme and purpose of Part II of the 1990 Companies Act, a consideration of its legislative history and a consideration of the various Irish and English authorities on the question of the statutory abrogation of the privilege against self-incrimination lead me to the firm conclusion that the statute had the effect of abrogating the privilege. It remains, of course, to be considered whether such an abrogation was constitutionally permissible.

The constitutional question

As we have seen, the Supreme Court in Heaney, supra, recognised the constitutional status of the right to silence as a correlative right to the freedom of expression conferred by Article 40 of the Constitution. It also accepted that:

Just as the freedom of expression clause in the Constitution is itself qualified, so must the entitlement to remain silent be qualified (at pp. 585/213) …. [H]owever, it is clear that the right to freedom of expression is not absolute. It is expressly stated in the Constitution to be subject to public order and morality. The same must hold true of its correlative right — the right to silence (at pp. 589/127 per O’Flaherty J in Heaney, supra)

The approach of the court in determining whether a legislative encroachment upon the right to silence is constitutionally permissible is one of applying as I have already indicated a test of proportionality and asking whether the restriction which the impugned sections place on the right to silence is any greater than necessary to enable the State to fulfil its constitutional obligations.

Part II of the 1990 Act as stated provides a mechanism for the investigation of companies by inspectors. The scheme of the Act allows the appointment of inspectors by the court on the application of the minister where there are circumstances which suggest to the court that the company has been operated in an unlawful or fraudulent manner. The inspectors are given investigative powers including a power to compel answers from officers and other persons. It is clearly envisaged by the Act that prosecutions can follow. Speaking of the statutory policy behind the corresponding provisions of the English Act of 1985 Scott J said in In re London United Investments plc [1992] BCLC 91 at pp. 113–114:

It is a regrettable feature of commercial and corporate fraud in these modern times that facilities are available for sophisticated fraudsters to prevent the trail leading to the unravelling of the fraud from being followed up. The secrecy provisions of some countries’ corporate and banking laws operate to this effect. Nominee shareholdings in offshore companies do so as well. There is often no alternative if frauds and dishonest stratagems are to be laid bare but to demand answers from those who are in a position to give them. This, in my opinion, is at least part of the statutory policy behind Part XIV of the Companies Act 1985.

It is, of course, a legitimate objective of the State, and entirely in the public interest, to lay bare frauds and dishonest stratagems, and where the only means of effectively achieving such an objective is to provide an investigative procedure without a right to silence (as in the instant case) then one can properly assert that the restrictions imposed by s. 10 on the right to silence are no greater than is necessary to enable the State to fulfil its constitutional obligations of ensuring equality before the law and of protecting the property rights of every citizen. Because the abrogation (by s. 10 of the 1990 Act) of the right to silence is no greater than is necessary to enable the State to discharge such constitutional duties, s. 10, in my view, is not invalid having regard to the provisions of the Constitution.

The respondents assert that there is a constitutional right not to have compelled testimony used against one at one’s trial and that this Court should decide, at this stage, whether answers compelled under s. 10, or their fruits can be used in evidence. It is argued that the right asserted is one which flows from Article 38.1, namely, the right to be tried in due course of law. I do not believe that in determining that s. 10 abrogates the right to silence, I should have regard to the use to which such answers are put. The statutory obligation to answer self-incriminatory questions is not inconsistent with the right to trial in due course of law. When asked questions by an inspector, the witness does not stand as an accused person. If he becomes an accused person, having answered incriminating questions, his right to a fair trial may not even at that stage be infringed: it depends on whether the compelled testimony is tendered against him at his trial; if it is, he may, of course, object to it and it would be a matter for the trial judge to determine its admissibility. It is at that stage, and no sooner, that an adjudication on the admissibility of answers (or the fruits of such answers) is to be made. I therefore see no necessary connection between the occasion of questioning by an inspector and the occasion, at trial, of tendering compelled testimony. No right to a fair trial is infringed at the questioning stage; the use to which the answers are put is a separate matter and where such use threatens to, or does, infringe a constitutional right of the witness that right can be then asserted and vindicated. That it is appropriate to look at the inspectors’ investigative and questioning role separately from any subsequent trial finds support in the decision already referred to of Saunders v. United Kingdom, supra, where (in relation to the Companies Act 1985 in the United Kingdom) the European Court of Human Rights said at paragraph 67 of the equivalent of s. 10:

A requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6.1 would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities.

Accordingly the court allowed that the privilege against self-incrimination was not applicable to such preparatory investigations. However, the court found that the use of such compelled testimony at the trial was indeed a breach of Article 6.1 of the convention. Equally, in Heaney v. Ireland, supra, the Supreme Court upheld the constitutionality of s. 52(1) of the Offences Against the State Act 1939 and declined to consider the moot point of whether information lawfully obtained pursuant to s. 52 could be used in evidence. The position is no different here: whether or not there is a constitutional right not to have compelled testimony, or its fruits, used against an accused is an issue which I do not now have to decide because it has not as yet arisen. That is a matter which falls to be decided on the occasion when such evidence is tendered. Accordingly I do not have to consider the implications of the wording of s. 18 of the 1990 Companies Act.

I propose therefore to answer the first question which is addressed to the court in the motion paper as follows, namely, that persons (whether natural or legal) from whom information, documents or evidence are sought by the inspectors in the course of their investigation under the Companies Act 1990 are not entitled to refuse to answer questions put by the inspectors or to refuse to provide documents to the inspectors on the grounds that the answers or documents may tend to incriminate him, her or it.

Procedures proposed by inspectors

In a letter dated 4 June 1998 addressed to the solicitors for the representative respondent (Messrs O’Mara Geraghty McCourt) the inspectors outlined the procedures they propose to follow. It was a letter in almost identical terms to the letter they had sent to Messrs Mason Hayes & Curran which I have quoted in full at pp. 4 and 5 of this judgment.

Objection is taken to the procedure (outlined in the letter) by the representative respondent. While the applicant suggested the first stage of the inspectors’ process is entirely investigative, the representative respondent disagrees. He says it is accusatory. He points to the affidavit grounding the application to appoint the inspectors. It is, he says, replete with accusations of criminal conduct: there are allegations, he says, from anonymous sources of crimes committed at particular National Irish Bank branches including Carrick-on-Shannon at which he, Mr O’Reilly, was a manager for a particular period of time. He says that he now stands in the public domain accused of criminality and is therefore in no different a position to the position of Padraig Haughey himself when he stood before the Public Accounts Committee of Dáil Éireann accused of criminal conduct. It is submitted on behalf of Mr O’Reilly that he is entitled to the full panoply of ‘Haughey’ rights: a copy of the evidence reflecting on his good name, the opportunity to cross-examine his accusers, the opportunity to give rebutting evidence and the entitlement to address the inspectors. He contends that having regard to such rights he is entitled to all and any material in the hands of the inspectors which reflect on his good name and reputation and is further entitled to cross-examine his accusers before he himself is sworn and examined. I do not believe this submission to be well founded. The rights identified by the Supreme Court in the case of In re Haughey [1971] IR 217 were rights which the court believed should be afforded to a person who had been accused of conduct reflecting on his character and good name and where the accusations made were upon the hearsay evidence of a witness before the Public Accounts Committee of Dáil Éireann. While it is undoubtedly the case that allegations of the commission of criminal offences have been made in the media against National Irish Bank and its officers, the case differs from the Haughey case where the accusations were made by evidence under oath from one Superintendent Fleming before the Public Accounts Committee. It was that evidence that the Supreme Court held Mr Haughey was entitled to have tested; in the present case, there is no evidence; there is documentation in the hands of inspectors but that documentation has not become and is not evidence in the sense understood by the Supreme Court in In re Haughey. Accordingly, the inspectors cannot be compelled at this point in time to produce any documents to the representative respondent and, he in turn, is not entitled to any documents or to the facility of cross-examining any person at this intitial stage in the process.

I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspectors’ work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in the Haughey case. I therefore determine that the procedures outlined by the inspectors in their letters dated 4 June 1998 (contained within exhibit C and D to the affidavit of John Blayney and Tom Grace sworn on 11 June 1998) are consistent with the requirements of natural and constitutional justice.

SUPREME COURT
BARRINGTON J

(O’Flaherty, Murphy, Lynch and Barron JJ concurring) delivered his judgment on 21 January 1999 saying: This case raises an important point on the position of the right to silence in Irish law.

The appeal is an appeal against the judgment and order of Shanley J made herein on 13 July 1998.

By his said order the learned trial judge declared:

(i) that persons (whether natural or legal) from whom information, documents or evidence are sought by the inspectors in the course of their investigation under the Companies Act 1990 are not entitled to refuse to answer questions put by the inspectors or to refuse to provide documents to the inspectors on the grounds that these answers or documents may tend to incriminate him/her or it;
(ii) that the procedures outlined by the inspectors in their letters dated 4 June 1998 (contained within exhibits C. and D. to the affidavit of John Blayney and Tom Grace sworn on 11 June 1998) are consistent with the requirements of natural and constitutional justice.
In the course of the hearing before this Court counsel for the appellants abandoned their appeal against the second declaration quoted above. In the course of their written submissions counsel had stated that they were only concerned with the rights of natural persons and were not concerned to argue the case for legal persons.

The present appeal accordingly is concerned only with the right to silence so far as it affects natural persons. This means, in effect, that the court is concerned with the rights of Mr John O’Reilly and other employees of the National Irish Bank Ltd in respect of whom he is the representative respondent and appellant.

Factual background to the case
On 30 March 1998 the High Court, on the application of the Minister for Enterprise and Employment, pursuant to s. 8(1) of the Companies Act 1990 appointed the Honourable Mr John Blayney, a retired judge of the Supreme Court, and Mr Thomas Grace, FCA, to be joint inspectors to investigate and report on the affairs of National Irish Bank Ltd relating to:

(i) the improper charging of interest to accounts of customers of the said National Irish Bank Ltd between 1988 and 30 March 1998;
(ii) the improper charging of fees to accounts of customers of the said National Irish Bank Ltd between 1988 and 30 March 1998;
(iii) the improper removal of funds from accounts of customers of the said National Irish Bank Ltd between 1988 and 30 March 1998;
(iv) all steps and action taken by National Irish Bank Ltd, its directors and officers, servants or agents in relation to the charging of such fees or interest or the removal of any funds without the consent of the account holders and their actions arising from the issues when discovered;
(v) the manner in which the books, records and accounts of the said National Irish Bank Ltd reflected the foregoing matters;
(vi) the identity of the person or persons responsible for and aware of any of the practices referred to above;
(vii) whether other unlawful or improper practices existed in National Irish Bank Ltd which served to encourage the evasion of any revenue or other obligations on the part of the bank or third parties or otherwise.

The inspectors, having carried out extensive preparatory work, intended to commence interviewing employees of the bank on 28 May 1998. However four firms of solicitors wrote to the inspectors on behalf of employees or former employees. One firm represents 75 such persons, another five, another a single retired employee and the fourth also represents a single retired employee. The relevant issue raised by the solicitors, so far as the present appeal is concerned, is whether interviewees, in the context of an investigation under Part II of the Companies Act 1990, have a right to refuse to answer questions put by the inspectors on grounds of possible self-incrimination, and, if they have not, whether answers or other evidence obtained from the employees can be used against them in any subsequent criminal trial.

The inspectors who had been advised that interviewees would not have the right to refuse to answer questions on the grounds that the answers might be incriminating, applied to Kelly J in the High Court for directions.

Kelly J, in deciding to settle the present issue for decision by the High Court referred to the procedure set out in s. 10(5) of the Companies Act 1990 and rejected it as being far too cumbrous having regard to the large number of prospective interviewees contemplated by the present case.

The relevant provision of s. 10(5) provides that in a case where:

If any officer or agent of the company or other body corporate or any such person as is mentioned in subs. (2) refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case ….

In his judgment delivered on 11 June 1998 Kelly J stated at pp. 3–4:

I am also satisfied that it would not be in the interests of an expeditious and efficient conduct of the investigation or indeed in the public interest that these matters be left to be dealt with under the procedures prescribed in s. 10(5) of the Act. They would involve a cumbersome, time-consuming and wholly unsatisfactory way of dealing with these matters, particularly in the context of a large number of proposed interviewees. The operation of that subsection would require individuals to be called before the inspectors and upon refusing to answer questions, the inspectors in each case certifying that refusal to this Court and a subsequent hearing on the matter.

Under s. 7(4) of the Act the court is entitled to give directions. That subsection reads—

Where the court appoints an inspector under this section or s. 8 it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible.

I am satisfied that this is an appropriate case in which to give directions so that these issues may be determined fairly, efficiently and with the minimum of costs being incurred.

Statutory background
The relevant statutory background to the present case is contained in ss. 10 and 18 of the Companies Act 1990.

S. 10 (so far as relevant and as modified as a result of the decision of the Supreme Court in Desmond v. Glackin [1993] 3 IR 67) reads as follows:

10.—

(1) It shall be the duty of all officers and agents of the company and of all officers and agents of any other body corporate whose affairs are investigated by virtue of s. 9 to produce to the inspectors all books and documents of or relating to the company, or, as the case may be, the other body corporate which are in their custody or power, to attend before the inspectors when required so to do and otherwise to give to the inspectors all assistance in connection with the investigation which they are reasonably able to give.

(2) If the inspectors consider that a person other than an officer or agent of the company or other body corporate is or may be in possession of any information concerning its affairs, they may require that person to produce to them any books or documents in his custody or power relating to the company or other body corporate, to attend before them and otherwise to give them all assistance in connection with the investigation which he is reasonably able to give; and it shall be the duty of that person to comply with the requirement ….

(4) An inspector may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of the company or other body corporate and such person as is mentioned in subs. (2) in relation to its affairs and may:

(a) administer an oath accordingly,

(b) reduce the answers of such person to writing and require him to sign them.

(5) If any officer or agent of the company or other body corporate or any such person as is mentioned in subs. (2) refuses to produce to the inspectors any book or document which it is his duty under this section so to produce, refuses to attend before the inspectors when required so to do or refuses to answer any question which is put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal under their hand to the court, and the court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence, …

(6) … make any order or direction it thinks fit, including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer a particular questions put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector ….

S. 18 provides as follows:

18.— An answer given by a person to a question put to him in exercise of powers conferred by—

(a) s. 10;

(b) s. 10 as applied by ss. 14 and 17; or

(c) rules made in respect of the winding up of companies whether by the court or voluntarily under s. 68 of the Courts of Justice Act 1936, as extended by s. 312 of the Principal Act;

may be used in evidence against him, and a statement required by s. 224 of the Principal Act may be used in evidence against any person making or concurring in making it.

The right to silence at common law and under the Constitution of the Irish Free State
The so called right to silence was developed by the common law courts in reaction to the abuses of the Courts of Star Chamber. The classic decision on the position of the right to silence at common law and under the Constitution of the Irish Free State is contained in the case of the State (McCarthy) v. Lennon [1936] IR 485.

That case arose out of an amendment made to the Constitution of the Irish Free State by the Constitution (Amendment No. 17) Act 1931. The effect of that amendment was to insert a new article (Article 2A) into the Constitution of the Irish Free State the provisions of which article were to override the subsequent articles of the Constitution in the event of a clash between them. The amendment also established a tribunal with wide ranging powers and, conferred on police officers wide powers of arrest and interrogation and made it a criminal offence potentially punishable by death, for an arrested person to refuse to answer certain questions duly put to him under these powers.

The prosecutor, McCarthy, had been duly arrested and interrogated under the provisions of Article 2A. He had initially refused to answer questions but, when the implications of his refusal were drawn to his attention, had made a statement. This statement was admitted at his trial despite counsel’s objection. It was the only substantial evidence against him and he was convicted. State (McCarthy) v. Lennon was an application for certiorari and habeas corpus and the point at issue was whether the statement had been properly admitted at the trial. The Supreme Court of the Irish Free State held by two votes to one that it had.

Fitzgibbon J, in one of the majority judgments, described the position of the common law rule against self-incrimination and the effect of Article 2A of the Constitution of the Irish Free State upon it, as follows (at pp. 499–500):

By the common law, which existed for centuries before the Free State was constituted, statements or confessions obtained from an accused party by threats or inducements held out by persons in authority could not be given in evidence against him, and the maxim nemo tenetur se ipsum accusare was rigidly enforced by the judges. When the Constitution of the Free State was framed that law was continued in force here by Article 73. In 1791 it had been adopted by the people of the United States in Article V of that part of their Constitution which has always been popularly known as the Bill of Rights:

‘No person … shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty, or property without due process of law’; and under our Constitution as originally adopted it would have been impossible to put McCarthy’s statement in evidence against him.

It is true that the rigid rule had been relaxed in a very special class of cases, those under the bankruptcy code, where bankrupts and insolvents were compelled by the special bankruptcy statutes to make full disclosures of their trading and affairs, and it was decided that statements so made were admissible in evidence in criminal prosecutions against the bankrupt who made them. He had, however, this protection, that his statements were made in the presence of a judicial officer, and not in a prison cell under what was tantamount to a threat of capital punishment.

But whatever may have been the state of the law in this country before the enactment by the Oireachtas of the Constitution (Amendment No. 17) Act on 17 October 1931, it has been expressly enacted by s. 2 of Article 2A of that statute that Article 73 of the Constitution, which introduced the common law and the maxim to which I have referred, shall be read and construed subject to the provisions of Article 2A, and that in case of any inconsistency between Article 2A and Article 73, Article 2A shall prevail. Therefore full effect must be given by the courts to whatever is enacted in Article 2A, notwithstanding any statute or common law previously in force under Article 73.

It does not appear that Fitzgibbon J was suggesting, in the passage quoted, that the right to silence had obtained the status of a constitutional right under the Constitution of the Irish Free State but rather that, by virtue of the provisions of Article 73 of the Constitution of the Irish Free State, the common law right to silence had continued as part of the law of the Irish Free State. The distinction, however, was of no importance for that judgment because, whatever the status of the right to silence prior to the enactment of the 17th Amendment to the Constitution of the Irish Free State, by virtue of that amendment, it was subordinated to Article 2A of the Constitution.

The majority in the court seem also to have been influenced by the provisions of the Bankruptcy Acts and in particular by the construction which had been placed upon them in R. v. Scott (1856) 7 Cox CC 164 which had held not only that a bankrupt was bound to answer certain questions even if they tended to incriminate him but also that his answers could be used against him in a subsequent criminal trial. Indeed counsel for the State appears to have relied on R. v. Scott for the proposition that once the privilege against self-incrimination had been removed, it was removed for all purposes.

This proposition was vigorously rejected by Kennedy CJ in his dissenting judgment. He said (at pp. 495–6 of the report):

I understood his proposition to be capable of statement shortly in this way: When the privilege accorded to evidence of a criminating character is removed for any purpose, it is gone for every purpose, and the evidence is lawfully admitted for every purpose, from which he argues that if the police are given authority by statute to compel a person to answer questions put by them to him, subject to a statutory penalty if he refuses to answer, any statement which the individual makes to a policeman in answer to any such question is admissible in evidence against the individual, free from the privilege which the individual might otherwise set up against the admission of such statement in evidence against him. I answer simply: Non sequitur. My simple logic cannot trace any sequence from the sworn evidence given compulsorily in a court of law to a statement, not on oath, privately extracted by a policeman from a man, in his custody and unprotected, without eyewitness of the alleged examination or record of what passed, without regulation of time or place or circumstance. The maxim nemo tenetur se ipsum accusare may no doubt be derived from the English common law in force in this country by force of statute, recognised, indeed, in some of our own legislation. Whatever be its origin, it contains a sound principle, one, indeed, to which appeal has been made often in the past. It is certainly now firmly established in our practice and one of the best known rules of law amongst the public and generally accepted. If parliament wishes to suspend the application of that principle I look for an express repeal of it.

There is no trace in the Constitution Amendment [Act] of a purpose of using a prisoner’s extorted answers in evidence in any court for any purpose.

The last sentence in the passage quoted illustrates the weakness of the court’s position. At the time of the enactment of the 17th Amendment to the Constitution of the Irish Free State the Oireachtas was in a position to amend the Constitution without reference to the people. The Oireachtas was, for the time being, in the position of a sovereign parliament. Article 2A was to prevail over subsequent provisions of the Constitution in the event of an inconsistency between it and them. There was no point therefore in appealing to such inconsistency between it and them. The judges were virtually in the same position as judges under the British Constitution. It was simply a question of working out what parliament meant from what parliament said. If it was clear from the words of the amendment and the surrounding circumstances that parliament intended to remove the right of silence that was the end of the matter. The only point which could still be made was that made by Kennedy CJ to the effect that the fact that the person was legally compellable to answer a police question did not automatically make his answer admissible against him at a subsequent criminal trial.

Many years later, in In re McAllister [1973] IR 238 Kenny J stated that a bankrupt was entitled to decline to answer any question the answer to which might incriminate him or which might disclose that he had committed a criminal offence. He added (at p. 243):

… I know that it has been the practice of the judges who have exercised bankruptcy jurisdiction during the last 20 years to warn witnesses that they are not obliged to answer questions if their evidence would show that they had committed a criminal offence.

Subsequently s. 21(4) of the Bankruptcy Act 1988 provided that:

A bankrupt or other person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him but none of his answers shall be admissible in evidence against him in any other proceedings, civil or criminal, except in the case of any criminal proceedings for perjury in respect of any such answer.

Constitutional provisions
The right to silence had its origins in the common law but was elevated into a constitutional principle by the 5th Amendment to the American Constitution. It grew out of the revulsion of the judges for forced confessions as being both unjust in their origin and unreliable in practice. Some judges also seemed to have felt that it was unfair to place a man in a position where he was condemned no matter what he did. As Lord Mustill put the matter in R. v. Director of Serious Fraud Office, ex p. Smith [1993] AC 1 at 32:

Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal ….

An American judge had the same idea in mind when he referred to ‘the cruel trilemma of self-accusation, perjury or contempt’ (see Murphy v. Waterfront Commission of New York Harbour (1964) 378 US 52 at p. 55).

The right to silence or privilege against self-incrimination was a judge made law and could be abridged or abolished at any time by a sovereign parliament. The most the judges could do was to insist that, if parliament wished to abolish such a cherished doctrine of the common law it should state its intention clearly. This was the dilemma which faced the Irish judges in the case of State (McCarthy) v. Lennon. The Oireachtas had, for the time being, untrammelled legislative power. It accordingly had power to introduce the Constitution (Amendment No. 17) Act 1931 giving power to the tribunal established by that Act to inflict penalties up to and including the death penalty on suspects who refused to answer questions. There was nothing the courts could do about it.

If however one regards the right to silence as not merely a common law privilege but as a constitutional right, one must ask oneself ‘What is the extent of it and what limitations can be placed upon it? Is a confession to be rejected because it was obtained by the application of executive power but to be accepted if obtained solely by the application of legislative power? Or is it the element of compulsion which makes the confession unacceptable?’

The provisions of our Constitution invoked by the appellant as assisting his submission are Article 40.6.1°, Article 40.3 and Article 38.1.

The relevant parts of these three constitutional provisions read as follows:

6.1° Article 40
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.
3.1° Article 40
3.1° 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.

2. 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.
Article 38
1. No person shall be tried on any criminal charge save in due course of law.
In the context of the present case the effect of Article 40.3 is merely to reinforce the other two constitutional guarantees the first of which, as interpreted by this Court, applies to the right to silence generally and the second of which applies to the conduct of a criminal trial.

 

Article 40.6
This Court in Heaney v. Ireland [1996] 1 IR 580; [1997] 1 ILRM 117 derived the general right to silence from the right to freedom of expression guaranteed to citizens by Article 40.6. The court held that the constitutional right of freedom of expression carried with it, by necessary implication, the correlative right to remain silent. In this respect the court followed the reasoning of an earlier Supreme Court in the Educational Company v. Fitzpatrick (No. 2) [1961] IR 345 which derived from the constitutional right of freedom of association the correlative right to refuse to associate. In this respect the present Supreme Court differed from the then President of the High Court Costello P who had derived the right to silence from Article 38.1 of the Constitution. But the court held that the right to silence was not absolute but might in certain circumstances have to give way to the exigencies of the common good provided the means used to curtail the right of silence were proportionate to the public object to be achieved.

In the Heaney case the court was dealing with a provision of the Offences Against the State Act 1939 which was an Act dealing with threats to the security of the State and the court held that the curtailment of the right of silence contained in s. 52 of the Act was no more than was necessary in the circumstances.

The present case deals with the investigation of commercial fraud. No doubt this may often be a much less serious matter than the matter under investigation by the court in the Heaney case but nevertheless potentially it is a matter of great importance in modern society.

The powers of inspectors appointed by the Secretary of State under the British Companies Act 1985 are broadly similar to the powers of inspectors appointed by the court under our Companies Act 1990. For that reason it is interesting to note that in Saunders v. United Kingdom (1996) 23 EHRR 313 the European Court of Human Rights in its judgment dated 17 December 1996 at p. 337, paragraph 67 said that the powers of inspectors appointed under the British Companies Act 1985:

were essentially investigative in nature and that they did not adjudicate either in form or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities — prosecuting, regulatory, disciplinary or even legislative (Fayed v. United Kingdom (1994) 18 EHRR 393, judgment of 21 September 1994, Series A no. 294-B, p. 47, paragraph 61). As stated in that case, a requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6 paragraph 1 would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities (ibid., p. 48, paragraph 62).

Accordingly the court’s sole concern in the present case is with the use made of the relevant statements at the applicant’s criminal trial.

Likewise if there are grounds for believing that there is malpractice or illegality in the operation of the banking system, it is essential, in the public interest, that the public authorities should have power to find out what is going on. It appears to me that the powers given to the inspectors under s. 10 of the Companies Act 1990, as set out earlier in this judgment, are no greater than the public interest requires. Their meaning is clear and they pass the proportionality test. Accordingly it appears to me that interviewees are not entitled to refuse to answer questions properly posed to them by the inspectors pursuant to the inspectors’ powers under the Act.

Article 38.1
Article 38.1 deals with a different matter. That article, as reinforced by Article 40.3, deals with the conduct of a criminal trial and provides that no person is to be tried on any criminal charge ‘save in due course of law’. The phrases ‘due course of law’ and ‘due process of law’ like the phrase ‘equality before the law’ embody dynamic constitutional concepts into which lawyers have obtained deeper insights as society has evolved. But it is doubtful if the principle of proportionality — so important in other branches of constitutional law — can have any useful application here. A criminal trial is conducted ‘in due course of law’ or ‘with due process of law’ or it is not. The question then arises would a trial, at which a confession, obtained from the accused under penal sanction imposed by statute, was admitted in evidence against the accused, be a trial in due course of law?

Should the court attempt to give guidance at this stage
A preliminary difficulty arises in attempting to answer this question. The difficulty is that the conduct of a criminal trial in due course of law is primarily a matter for the trial judge. The question of whether a statement is or is not a voluntary statement depends upon the circumstances in which it was made. The fact that inspectors are armed with statutory powers or may even have invoked them does not necessarily mean that a statement made in reply to their questions is not voluntary. This consideration appears to have influenced the learned High Court judge and to have caused him to decline to give any further guidance than is contained in his judgment.

Nevertheless a practical problem has arisen in the course of the inspectors’ enquiries. The inspectors and the solicitors advising the bank officials disagree as to the correct interpretation of the inspectors’ powers and as to the implications for the bank officials of answering the inspectors’ questions. In these circumstances the inspectors have applied to the High Court for guidance. Kelly J took the view that the inspectors’ application was a proper one and decided to settle the present issue as the most practicable way of resolving the problems which had arisen between the inspectors and the solicitors for the bank officials. Under these circumstances this Court — while in no way attempting to pre-judge or anticipate the actual decision of any trial judge who may, hereafter, have to conduct a criminal trial arising out of any matter disclosed by the inspectors’ investigations, should, in my opinion give further guidance.

The Saunders case
Earlier in this judgment I have referred to the fact that the majority judges in the European Court in the Saunders case found powers such as those vested in the inspectors in the present case to be necessary to enable the public authorities to investigate fraud. At the same time the court found that some of the answers given by Saunders in reply to inspectors in that case were self incriminating and that the use made by the prosecution, at the subsequent criminal trial, of Saunders’ replies to the inspectors was such as to deny him a ‘fair trial’ within the meaning of Article 6.1 of the European Convention on Human Rights. At paragraph 74 (p. 340) of its judgment the court stated:

The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings …. Moreover the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right.

The Ferreira case
A similar line of reasoning led the Constitutional Court in South Africa in Ferreira v. Levin [1996] 1 SA 984 to conclude that part of s. 417 of the South Africa Companies Act 1973 was unconstitutional. The section in question dealt with the examination of directors and officers of an insolvent company in the course of a winding up. It provided that any such person should be required to answer questions put to him notwithstanding that the answer might tend to incriminate him and that ‘any answer given to any such question may thereafter be used in evidence against him’. The court held that the provision contained in the words quoted was unconstitutional as violating an accused person’s right to a fair trial.

The Irish cases
A fundamental rule of Irish law is that a confession is not admissible at a criminal trial unless it is voluntary. In People (Attorney General) v. Cummins [1972] IR 312 (at p. 322) Walsh J delivering the unanimous judgment of the Supreme Court, reiterated this principle in the following words:

It should be said at once that a trial judge has no discretion to admit an inculpatory or an exculpatory confession, or statement, made by an accused person which is inadmissible in law because it was not voluntary. It is a matter for the trial judge to decide, when he has heard the evidence on the point, whether or not he will admit a statement, but if he is satisfied that it was not voluntary then his decision can be only to exclude it.

This dictum of Walsh J was applied by the Court of Criminal Appeal in the later case of People (Attorney General) v. Gilbert [1973] IR 383. In that case the accused was tried in the Circuit Court on indictment for receiving a motor car knowing it to have been stolen, contrary to s. 33(1) of the Larceny Act 1916. Before the trial a policeman had invoked s. 107 of the Road Traffic Act 1961, and had asked the accused to state who was using the car at a particular time. The accused had answered that he was using it at that time. Under s. 107 of the Act of 1961 a person commits an offence if he fails to give any information in his power relating to the identity of the person using a vehicle, if so requested by a policeman. The accused had been informed of the penalty under s. 107 before he was questioned. At the trial of the accused evidence of his incriminating statement was given and he was convicted.

The Court of Criminal Appeal held that the accused’s statement made in answering questions posed pursuant to s. 107 of the Road Traffic Act 1961 was not a voluntary statement and that evidence of that statement should not have been admitted in evidence at the trial.

In the course of its judgment the court (at pp. 386–387 of the report) stated:

That a statement by an accused person which is not voluntary cannot be admitted in evidence is quite clear; this has been confirmed recently by the Supreme Court in People (Attorney General) v. Cummins [1972] IR 312.

The court then quotes the passage quoted above from the judgment of Walsh J in the Cummins case and continues (at p. 387):

As in the present case the statement in question was made after the sergeant had stated that a failure or refusal to answer would constitute an offence involving serious penalties, in our opinion it could not be said in any sense to be a voluntary statement and so the trial judge should not have admitted it in evidence on the trial of the offences with which the appellant was charged under the Larceny Act 1916. We express no opinion on the position which would have existed if the charges had been for offences under the Road Traffic Acts.

The reference to the Road Traffic Acts in the last sentence is puzzling. Presumably the court did not wish to cast any doubt on the powers of the police to collect information under the Road Traffic Acts. But, in principle, a confession, once involuntary, would appear to be equally objectionable no matter what the nature of the criminal prosecution.

A rather different view was taken, albeit obiter, by the Court of Criminal Appeal, in the case of People (DPP) v. McGowan [1979] IR 45. In that case the accused had been arrested under s. 30 of the Offences Against the State Act 1939. He had subsequently made an incriminating statement which both the trial court and the Court of Criminal Appeal were satisfied was a voluntary statement. S. 52 of the Offences Against the State Act 1939 had not been invoked by the police while the accused was in custody under s. 30 and there was no evidence that the accused was even aware of the provisions of that section. The status of statements made by an accused person in response to the exercise by the police of their powers under s. 52 of the Offences Against the State Act was not therefore properly before the court. The judgment does however contain the following passage which is obviously obiter (at pp. 52–3):

Even if s. 52 of the Act of 1939 had been invoked, or even if the accused had been aware of its provisions, in the view of this Court the submission would still not be sound in law. S. 52 of the Act of 1939 is almost identical in terms with s. 15(1) of Article 2A of the Constitution of the Irish Free State. In State (McCarthy) v. Lennon the former Supreme Court held that a statement taken in pursuance of the provisions of s. 15 of Article 2 was lawfully taken and was admissible in evidence. Counsel on behalf of McCarthy had objected at the trial to the admission of the statement in evidence on the ground that it was not voluntary, being made under compulsion by reason of the punishment to which persons declining to answer questions put to them pursuant to s. 15 of Article 2A rendered themselves liable. In the course of his judgment, Fitzgibbon J said at p. 500 of the report:

The plain and obvious effect of Article 2A, s. 15, is to empower the Garda Síochána to interrogate persons detained on suspicion under the article, and s. 16 makes it a criminal offence to refuse to answer, or to answer untruthfully. Therefore statements so obtained are obtained lawfully, and I know of no law which makes statements or confessions lawfully obtained or made, inadmissible as evidence in any legal proceeding.

At p. 506 Murnaghan J said that he could not see how relevant evidence which had been obtained in a lawful manner could be declared inadmissible. This Court respectfully agrees with those opinions. In the opinion of this Court, the law applicable is succinctly summarised at p. 248 of the 4th edition of Cross on Evidence where it is stated:

It seems that, if information has been lawfully obtained pursuant to statutory provisions and there is no express restriction on the use which can be made of the information, the person giving it cannot object to its being used in evidence against him either on the ground that such use would infringe his privilege against self-incrimination or because the information would not have been given voluntarily.

Therefore, this ground also fails. Accordingly, the court refuses both applications for leave to appeal.

The passage quoted compares s. 52 of the Offences Against the State Act 1939 with s. 15(1) of Article 2A of the Constitution of the Irish Free State but does not advert to the fact that Article 2A of the Constitution of the Irish Free State overrode all subsequent articles of that Constitution whereas s. 52 of the Offences Against the State Act 1939 is governed by the present Constitution. Moreover it quotes from Cross on Evidence without adverting to the fact that Cross was referring to the British Constitution where parliament is supreme whereas statutes of the Oireachtas are subject to the Constitution and must be interpreted in the light of it.

State (McCarthy) v. Lennon was again referred to by the Court of Criminal Appeal in People (DPP) v. Doyle (reported with People (DPP) v. Madden) [1977] IR 336. The judgment of O’Higgins CJ in that case contains a discussion of a hypothetical problem as to whether a person who had been arrested under s. 52 of the Offences Against the State Act 1939 and had given a true account of his movements in response to a demand made under s. 52 of that Act would be entitled to refuse to give a second account of his movements and whether, if he gave such second account, it would be admissible against him at his trial. But it is clear that the Chief Justice, relying on the decision in State (McCarthy) v. Lennon considered that the first account which he had given of his movements would be admissible. The passage appears at pp. 356–357 of the report and reads as follows:

Apart from the provisions of this section, any person detained by the Garda Síochána, whether under the provisions of the Act of 1939 or otherwise, would be entitled in law to refuse to answer any questions or to refuse to give any account of his movements or any information concerning the commission or intended commission of any criminal offence. Furthermore, apart from this section any person so detained would not, subject to the possibility of committing the offence of creating a public mischief, or of misprision, be committing any criminal offence if the account he gave of his movements or the information he gave with regard to the commission or intended commission of a criminal offence were false or misleading. Therefore, the section must be construed as one which limits or restricts what otherwise is the right of a person to remain silent under certain circumstances and, in particular, his right not to incriminate himself. Furthermore, it is a section creating a criminal offence and, on either basis, must be strictly construed: see In re Article 26 and the Emergency Powers Bill 1976 [1977] IR 159.

If a person, of whom is demanded whilst in custody under the provisions of the Act an account of his movements for a specified period, gives such an account which is complete and is neither false nor misleading, it would not appear to constitute an offence were he to refuse a request by the same, or another, member of the Garda Síochána to give again an account of his movements for the same period. The confining of the obligation of a person under s. 52 to the giving of a single account of his movements for any specified period, provided it is complete and true, does not prohibit questioning of that person by members of the Garda Síochána further or by way of repetition, though it does remove the sanction in the event of the person detained refusing to answer such further or repeated questions.

The former Supreme Court held in State (McCarthy) v. Lennon [1936] IR 485 (in respect of almost identical provisions contained in s. 15 of Part III of the schedule to Article 2A of the Constitution of the Irish Free State) that evidence obtained as a result of a request made by a member of the Garda Síochána was lawfully obtained and was admissible in any court, even though the request was made with the sanction that a refusal to comply with it constituted a criminal offence. Were it not for the express provisions in s. 52 of the Act of 1939, evidence obtained as the result of informing a person in detention that, if he did not give an account of his movements, he would be liable to imprisonment would clearly be inadmissible as a statement obtained under threat — quite apart from the fact that it would also constitute a breach of the Judges’ Rules. Therefore, if any of the statements made by the accused and challenged on his behalf had been made by him as a result of a repeated request for an account of his movements and he had complied on a previous occasion with a request from the same or another garda, the question would undoubtedly arise as to whether such statements could receive the apparent protection of s. 52 of the Act of 1939, or whether they should be excluded as being involuntary.

Finally, in People (DPP) v. Quilligan (No. 3) [1993] 2 IR 305 the Supreme Court rejected a challenge to the constitutionality of s. 30 of the Offences Against the State Act 1939 as being unconstitutional but left open the question as to whether the right to silence or the protection against self-incrimination is an unenumerated right pursuant to the Constitution.

The relevant passage appears at p. 323 of the report and reads as follows:

The court is not satisfied, having regard, in particular, to the various protections of the right of silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s. 30(5) available to a member of the Garda Síochána in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise, constitutes an invasion of or failure to protect the right of silence of a citizen. On that basis the court is satisfied that the challenge under this heading must fail. The court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution.

Conclusion
From the above discussion I draw the following conclusion. The decision in State (McCarthy) v. Lennon is not a safe guide for any person seeking to establish the rights of the citizen under the Irish Constitution. That decision was based on an interpretation of a provision deriving from Article 2A of the Constitution of the Irish Free State which article was designed to bypass all the constitutional guarantees contained elsewhere in that Constitution. The fact therefore that s. 52 of the Offences Against the State Act may be almost identical in wording with s. 15 of Part III of the Schedule to Article 2A of the Constitution of the Irish Free State is of little relevance. The important distinction is that s. 15 was intended to be above constitutional challenge while s. 52 is subject to the Constitution. It appears to me that the better opinion is that a trial in due course of law requires that any confession admitted against an accused person in a criminal trial should be a voluntary confession and that any trial at which an alleged confession other than a voluntary confession were admitted in evidence against the accused person would not be a trial in due course of law within the meaning of Article 38 of the Constitution and that it is immaterial whether the compulsion or inducement used to extract the confession came from the executive or from the legislature.

Section 18
The relevant provisions of s. 18 of the Companies Act 1990 may be abbreviated to read as follows:

18.— An answer by a person to a question put to him in exercise of powers conferred by —

(a) S. 10 … may be used in evidence against him ….

There is no doubt that the quoted provision covers civil cases but it is necessary to address the problem of whether the quoted provision is broad enough to cover the admission of involuntary confessions in criminal cases. One could argue that if it was intended to remove the common law privilege against self-incrimination the statute should have said so. On the other hand it can be argued that the statute expressly preserves legal professional privilege (see s. 23) but does not mention the common law privilege against self-incrimination. It is therefore possible to argue that had it been intended to preserve the common law privilege against self-incrimination the statute would have said so.

However this line of reasoning becomes irrelevant once one is satisfied that Article 38 of the Constitution confers on accused persons a right not to have involuntary confessions accepted in evidence at a criminal trial and that this right is reinforced by the general provisions of Article 40.3 of the Constitution. The Companies Act 1990 is a post constitutional statute and must therefore be presumed to be constitutional. This means that in interpreting the Act the constitutional interpretation must be favoured. As Walsh J delivering the judgment of the Supreme Court, put the matter in East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] IR 317 at p. 341:

Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.

Accordingly the better interpretation of s. 18 in the light of the Constitution is that it does not authorise the admission of forced or involuntary confessions against an accused person in a criminal trial, and it can be stated, as a general principle, that a confession to be admissible at a criminal trial must be voluntary. Whether however a confession is voluntary or not must in every case in which the matter is disputed be a question to be decided, in the first instance, by the trial judge.

The fruits
The judgment in this case follows the decision in Heaney v. Ireland in so far as that case decided that there may be circumstances in which the right of the citizen to remain silent may have to yield to the right of the State authorities to obtain information. It is not inconsistent with the decision in Rock v. Ireland [1998] 2 ILRM 37 that there may be circumstances in which a court is entitled to draw fair inferences from the accused having remained silent when he could have spoken. It follows People (Attorney General) v. Cummins [1972] IR 312 in so far as that case decided that for a confession to be admissible in a criminal trial it must be voluntary.

In the course of the submissions the question arose of what would be the position of evidence discovered by the inspectors as a result of information uncovered by them following the exercise by them of their powers under s. 10. It is proper therefore to make clear that what is objectionable under Article 38 of the Constitution is compelling a person to confess and then convicting him on the basis of his compelled confession. The courts have always accepted that evidence obtained on foot of a legal search warrant is admissible. So also is objective evidence obtained by legal compulsion under, for example, the drink driving laws. The inspectors have the power to demand answers under s. 10. These answers are in no way tainted and further information which the inspectors may discover as a result of these answers is not tainted either. The case of People (Attorney General) v. O’Brien [1965] IR 142, which deals with evidence obtained in breach of the accused’s constitutional rights has no bearing on the present case. In the final analysis however, it will be for the trial judge to decide whether, in all the circumstances of the case, it would be just or fair to admit any particular piece of evidence, including any evidence obtained as a result or in consequence of the compelled confession.

In these circumstances I would uphold the decision of the learned High Court judge but would add the statement that a confession of a bank official obtained by the inspectors as a result of the exercise by them of their powers under s. 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of such official unless, in any particular case, the trial judge was satisfied that the confession was voluntary.

 

People (DPP) v. Finnerty

[2000] 1 I.L.R.M. 191
Keane J
Introduction
At approximately 4 o’clock on a summer morning in 1995, a car being driven by the applicant was stopped by the gardaí in Letterkenny, County Donegal. A young woman who was a passenger in the car got out of it immediately, walked quickly to the patrol car and spoke to one of the gardaí. She told him she had been raped by the driver. She was distressed, weeping and shivering. The garda (Garda John Healy) told the applicant then and there what she had said and cautioned him in the usual terms. The applicant (whose reply was noted in writing by Garda Healy) said:

I didn’t rape her. I met this girl at a disco. She came out willingly. We went down the road, pulled in, kissed and such. We left then and came back in.

The applicant was arrested and brought to the garda station in Letterkenny. He was there detained under the provisions of the Criminal Justice Act 1984 (hereafter ‘the 1984 Act’) and released at 4 pm on 1 June, the period of detention having been duly extended. During that time, after having been properly cautioned and advised of his rights (including his right to consult a solicitor, of which he availed), the applicant was interviewed by the gardaí but made no further statement of any sort.

The applicant was subsequently returned for trial in the Central Criminal Court on two counts of rape. (The reason two counts were laid will become apparent at a later point.) Having been arraigned and having pleaded not guilty to both counts, the applicant was tried before Carney J and a jury in the Central Criminal Court.

The complainant, who was a student at a local regional technical college at the time, gave evidence of having gone out for a celebration with some of the other students on 30 May, after they had finished their examinations on that day. She met a man in the disco to which they went with whom she danced and to whom she talked for most of the evening. She said that he offered to drive her home and, that, since he seemed nice and she thought she could trust him, she agreed. When they came to his car, he said that he had to wait for a friend; the friend, who was another man wearing a form of jumper with a hood which, the complainant said, he pulled over his head, sat in the back seat behind her as they drove off. She said that she became very frightened because the passenger in the back seat began making physical advances to her and that her fear became even greater when the driver, instead of taking her home, drove her to a lonely spot on the Derry road. There, she said, the two men got out and after a brief conversation, the passenger with the hood got back into the car and said that he would drive the complainant home. The other man, she said, just walked off.

The complainant said that the man with the hood, despite her protests and threats to jump out of the car, brought her to another place where he drove the car into the driveway of a house and round to the back. Her evidence went on: (Transcript, Book 1, Q.231):

Q. The car drove in. Are you saying it stopped?

A. Yes, it stopped and before I knew it, the car just stopped and it happened so quickly that he was on top of me and he just reefed off my clothes.

The complainant went on to give a description of having been brutally raped by the driver. At one stage, she pleaded to be allowed to get out of the car to relieve herself; he eventually allowed her to but stood beside her. Following that incident, she said she was raped again in the same manner. (It was this sequence of events as narrated by the complainant which resulted in the laying of two separate counts.)

The complainant, who said that she was a virgin at the time of the alleged rape, identified the applicant as the perpetrator.

The complainant was then cross-examined on behalf of the applicant and it was put to her that her account in every material particular was false. She was told that the applicant would give evidence that they had in fact met in a pub where the complainant had gone with her friends before they went to the disco. The complainant, in her direct evidence had said that she and her friends had begun the evening in the pub, but she denied that she had met the applicant there or, indeed, at any time until after she had left the disco. She was told that the applicant would say that she told him she was going on to the disco, that they met there and had drinks together and that at one stage he sat on her knee. She was told that he would say that they had a discussion — as to what might happen later on, that she explained that they could not go to her place because her mother was sharing a room with her in a guesthouse and that ultimately they decided to go for a drive in his car. It was further put to her that he would say that she made some physical advances to him while they were driving and that ultimately he stopped the car and that they had intercourse with her consent. All of this was denied by the complainant.

When the complainant had finished her evidence, prosecuting counsel told the learned trial judge, in the absence of the jury, that he now proposed to adduce evidence as to the fact that the applicant, during the period of his detention in the garda station under the 1984 Act, had made no statement of any sort. This was objected to by counsel on behalf of the applicant on the ground that the only issue in the case was as to whether the sexual intercourse which had admittedly taken place on the evening in question between the complainant and the applicant was with or without her consent. Counsel for the prosecution, however, submitted that, since it had been made clear on behalf of the applicant that he would be giving evidence which would contradict the account of events given by the complainant, the fact that he had given no such account when being interviewed in the garda station would be relevant when the jury came to assess his credibility. The learned trial judge, having heard the submissions on behalf of the prosecution and the applicant, ruled that the evidence was admissible.

The applicant gave evidence which was broadly similar to the account of events put on his behalf by counsel to the complainant. The only material addition in his evidence, which did not appear to have been put to the complainant, was that she expressed anxiety when the car was about to be stopped by the gardaí, because her mother would be angry with her for having gone out drinking with the other students.

The applicant was cross-examined by prosecuting counsel as to what transpired in the garda station as follows (Transcript, Vol. 4, Q. 3 10 et seg. ):

Q. Now, you have told the members of the jury and his lordship what response you made to Garda Healy when he challenged you about the allegation made against you, isn’t that right?

A. That’s correct, yes.

Q. Now, do you recall being in custody for 12 hours?

A. That’s correct, my Lord, yes.

Q. Yes, and weren’t several members of gardaí enquiring further into this allegation made by [the complainant]?

A. That’s correct, my Lord, yes.

Q. Yes, cautioning you and asking you questions about it?

A. That’s correct, my Lord.

Q. Yes. Are they correct in saying that you didn’t give a single answer to any questions posed to you about this matter, the complaint from [the complainant]?

A. I explained to the guards, when I got stopped, that I met [the complainant] in [the disco].

Q. Yes. About what? About two lines or thereabouts. We have had it already …

Now, if you had told them what you are now telling the members of the jury, wouldn’t you have told them well over a page of facts concerning this evening in which you were blissfully innocent of any wrongdoing?

A. Well, when I got to the police station, in Letterkenny, some of the guards passed remarks.

The applicant went on to say that during the course of the interview, some of the interviewing gardaí had said that the reason he had done what he was alleged to have done was because his parents had abused him when he was small. The applicant also said that he had given an account of what had happened to a lady garda in the interview room. It was put to him that none of the garda witnesses had been cross-examined to that effect. In re-examination he said that he had told his solicitors to make a complaint that he had been assaulted by one of the gardaí.

In the course of his charge to the jury, the learned trial judge made no reference to the issue raised by the prosecution as to whether the jury were entitled to take into account, in assessing the credibility of the applicant’s evidence, the unchallenged evidence of the gardaí that he had made no statement during the course of the detention. He did, however, refer to the applicant’s version in evidence as to what had transpired in the garda station in the following passage:

That was the evidence, members of the jury. In relation to this latter part, it wasn’t put to any policeman that he was assaulted, it wasn’t put to [the lady garda] that she was seeing him on his own and failing to record material which he said, which would be grossly improper, and it wasn’t put to any one that they had said very improper things to him about his parents sexually abusing him and so forth. If allegations are going to be made against people, the procedures of the courts require that the matter be put to them so that they are given an opportunity to respond to it.

The learned trial judge had, at an earlier point in the charge, referred as follows to that part of the applicant’s evidence:

Now, there are certain legal, technical matters involved in a case where the evidence is directed to me rather than to you. There are certain circumstances where I have to decide that a person is in lawful detention and those decisions are for me to take and the evidence in that area is directed at me. So most of the admissions which are made here are matters which are directed at me rather than you but they do assume a certain significance because of evidence given in the very tail end of the case, I think to the surprise of Mr Finnerty’s legal advisers, but the admissions which were made at the time are the following:

Joseph Finnerty was properly detained when he was being arrested under s. 4 of the Criminal Justice Act 1984.

Now, members of the jury, a prisoner is not being properly detained if he is beaten and a prisoner is not being properly detained if interrogation techniques such as ‘your parents sexually abused you’ are being directed at him. So at this point in the case there is an admission that Joseph Finnerty was properly detained when he was arrested under s. 4 of the Criminal Justice Act 1984.

Junior counsel for the applicant, Mr Grehan, made the following application in respect of these passages in the charge:

The next and final matter which I am addressing your lordship on, I don’t think is remediable by your lordship’s simply recharging the jury.

Mr Justice Carney: You want me to discharge the jury?

Mr Grehan: I am going to ask your lordship to discharge the jury in respect that your lordship told the jury that in relation to evidence which Mr Finnerty gave on cross-examination, that it came as a surprise to Mr Finnerty’s legal advisers, that it was made at one minute to midnight, that there were allegations of various matters that had never been put to police officers and in the context of certain statements of fact having been admitted by the defence at an earlier stage.

This case, my lord, is about a rape allegation. It is not about whether Mr Finnerty was assaulted at some stage by Garda John Healy in the course of his custody. There was no question whatsoever that the defence could have been taken by any surprise that Mr Finnerty, when he was being cross-examined, should give that evidence. It is set out clearly in the book of evidence in Garda John Rousse’s statement that Mr Dillon [the applicant’s solicitor] made a complaint of assault against Garda John Healy at 9.30 am on the morning of his detention. It’s set out clearly in the custody record but your lordship has given to the jury the suggestion that this was something that came clearly out of the blue, that the defence were never previously made aware of it and the only possible implication is that Mr Finnerty made it up in the witness-box and he lied not only to the jury but also to his defence in this case.

Mr Justice Carney: Well, I have not read the book of evidence, Mr Grehan, and I am conducting a trial on evidence being adduced here. If you want me to tell the jury that that was in the book of evidence very well, but it is a remarkable course of events for the defence to spring matters at one minute to midnight — I do not retreat from that phrase for a moment — when they had not been put to any of the prosecution witnesses.

Mr Grehan, in a further submission to the learned trial judge said:

At an earlier point in this trial, your lordship made a ruling, which is novel to me in my relatively limited experience of criminal experience compared to your lordship, which in effect abolished an accused’s right of silence and to exercise that right in the police station by determining that, not only can the fact that the accused has exercised that right be brought to the attention of the jury, the fact that he refused to answer any questions can be brought to the attention of the jury and Mr Mills in fact can cross-examine the accused as to what exactly occurred in the context of his detention in the station …. In the normal course if this case had proceeded on the basis that Mr Finnerty had simply exercised his right to silence or simply that nothing had occurred which was of probative value while he was in custody, none of these matters would have been gone into or would have come out and that is the only manner in which they have come out …. This is a matter which only came out in the context of cross-examination and can now specifically, because of a ruling which your lordship made to the effect that his right to silence could now be undermined by the fact that it could be commented upon and that he could be questioned on it and in those circumstances it seems to me that your lordship has wholly undermined the defence of Mr Finnerty in this case.

Having heard counsel for the prosecution in reply, the learned trial judge recalled the jury and recharged them in respect of the other matters as to which requisitions had been made. He made no further reference to this matter, presumably because he did not consider it appropriate to discharge the jury and Mr Grehan had made it clear that this was the only course he was inviting the trial judge to take.

As to the other evidence at the trial, it is sufficient to refer to those aspects which had a bearing on whether there was any evidence which the jury might have treated as corroborative of the complainant’s version of events.

The complainant was medically examined by Dr Najma Ali, a registrar in Letterkenny Hospital. She said that the complainant seemed distressed but did not appear to have any external injuries. As to her examination of the genitalia, it can be summarised as indicating that what she found was consistent with forced sexual intercourse, but was also consistent with consensual sexual intercourse. She said that the complainant’s clothes were dishevelled but were not torn, the latter conclusion being borne out by the forensic examination of the gardaí. It should be pointed out that, while Dr Ali found no sign of bruising, she agreed that it might have taken a day or more after the application of any force for such bruising to appear.

There were also blood stains on the underwear and on the seat of the car which, the forensic evidence indicated would be consistent with either forcible or consensual intercourse.

The learned trial judge, in the course of his charge, warned the jury of the danger of convicting the applicant in the absence of corroboration but also told them that, having carefully considered that warning, they were entitled so to convict. He also drew their attention to those aspects of the evidence which were capable of constituting corroboration, i.e. the complainant’s distress and confusion and her dishevelled appearance in the immediate aftermath of the alleged rape. He also was at pains, at the request of the defence, to point out to the jury that those matters were also consistent with consensual sex having taken place. No criticism has been, or could be, made of those aspects of his charge.

The jury found the applicant guilty in respect of the second count by a unanimous verdict. They were unable to agree in respect of a verdict on the first count. The case having been put back for a number of weeks for the obtaining of the appropriate reports, the applicant was sentenced to a term of seven years’ imprisonment. The first count was adjourned so as to enable counsel for the prosecution to obtain instructions from the Director of Public Prosecutions as to whether to proceed with that charge again. An application for leave to appeal was refused.

The Court of Criminal Appeal
An appeal was brought from the refusal by the learned trial judge to grant leave to appeal. While the notice of appeal was not included in the books of appeal lodged with this Court, it can be inferred that the first two grounds were as follows:

1. That the learned trial judge erred in law and in fact in permitting the prosecutor to adduce evidence before the jury of a positive nature to the effect that the accused had refused to answer any questions put to him by members of An Garda Síochána during his entire period of detention under s.4 of the Criminal Justice Act 1984.
2. The learned trial judge erred in law and in fact in permitting the prosecutor to question the accused before the jury as to why he refused to answer any questions during his entire period of detention under s. 4 of the Criminal Justice Act 1984.
Other grounds were also argued in the Court of Criminal Appeal, but were not pursued in this Court. The appeal was dismissed in an ex tempore judgment of the court given by Lynch J. Dealing with the first two grounds of appeal, the learned judge said:

The applicant claims that that permission to give that evidence of his silence and to cross-examine him about the silence was in breach of his right to silence. Now his right to silence was emphasised by the learned trial judge and the only purpose of this evidence and cross-examination by the prosecution of the applicant related to the reliability of the applicant’s detailed statement of explanation. There were before the jury manifestly two contradictory versions of what had happened on this particular night. The issue was which of these versions was to be believed and it was quite proper and reasonable for the prosecution to ask the applicant why he had not given the full exculpatory account of the evening’s events at an early stage instead of for the first time during the course of the trial.

This course of events does not trench in any way on the right to silence which as I have said was emphasised very strongly by the learned trial judge but this form of evidence of the applicant’s silence in the garda station and of cross-examination by the prosecution was highly relevant to the credibility of the applicant’s lately preferred account of events. The evidence as to his silence and his cross-examination about the silence were permitted and adduced only for that purpose and that was made quite clear and in the circumstances of the case that course of proceedings was perfectly permissible and proper.

In these circumstances the court rejects grounds 1 and 2 of the application for leave to appeal.

It should be said at this point that the reference in this passage to the trial judge having emphasised the right to silence of the applicant appears to be an oversight, if it was intended as a reference to the applicant’s claimed right to remain silent during the period of his detention in the garda station. There is no reference in the charge of the learned trial judge to that right of the applicant; the learned trial judge did undoubtedly point out to the jury that the applicant was under no obligation to give evidence in his own defence, but that is a different matter.

Following the dismissal of the appeal, the applicant applied for a certificate pursuant to s.29 of the Courts of Justice Act 1924 enabling an appeal to be brought to this Court. That application was acceded to by the Court of Criminal Appeal, the certificate being in the following terms:

The court certifies that its decision of 22 June 1998 involves a point of law of exceptional public importance which is set out in the schedule hereto and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

Schedule

Counsel for the applicant in cross-examining the complainant put to her a detailed account of the events of the night of 31 May/1 June 1995 in which he alleged that everything that happened on that night, including a journey in a motor car and sexual intercourse, happened with the full and free consent of the complainant. The only statement made by the applicant to members of the Garda Síochána was at the roadside when he was stopped between 4 and 5 am on 1 June 1995 and was accused of rape by the complainant, which statement was as follows:

I didn’t rape her. I met this girl at a disco. She came out willingly. We went out the road, pulled in, kissed and such. We left then and came back.

In the foregoing circumstances, was it permissible for the prosecution:
1. To elicit from members of the Garda Siochána who interviewed the applicant during his twelve hours’ detention in the garda station on 1 June 1995 that he declined to say anything during such interviews in relation to the complainant’s accusations?
2. To cross-examine the applicant when he gave detailed evidence as to alleged consent by the complainant to everything that happened on the night in question as to why he did not give that account of events when interviewed by members of the Garda Siochaina during his twelve hours’ detention in the garda station on 1 June 1995?
The notice of appeal to this Court, pursuant to that certificate, in addition to the two grounds set out at p.16 above, contained the following additional grounds:

3. That the learned trial judge erred in law and in fact in failing to discharge the jury upon the requisition of counsel for the accused at the conclusion of his charge to the jury on the basis that part of the said charge which related to the evidence given by the accused was speculative and prejudicial to the accused and served to totally undermine and belittle the accused before the jury;
4. The learned trial judge erred in law and in fact in failing to hold the balance and remain impartial vis-a-vis the prosecutor and the accused in his charge to the jury;
5. That the learned trial judge in recharging the jury failed to do so in an impartial and balanced manner and in fact thereby undermined the requisitions made on behalf of the accused.
The right to silence
It is important to emphasise at the outset that the more general constitutional and legal dimensions of what has come to be called ‘the right of silence’ are not at issue in this appeal. That right, to the extent that it exists, can arise in a number of different contexts, only one of which is at issue here. Thus, it is not in dispute that the exercise by an accused person of his right not to give evidence in his own defence cannot lead to any inference adverse to him being drawn by the court and that, in the case of a trial by jury, the jury must be expressly so advised by the trial judge.

Nor is the appeal concerned with the possible admissibility in evidence of a statement made in the presence of a defendant accusing him of a crime, upon an occasion which may be expected reasonably to call for some explanation or denial from him. Such a statement, although not evidence against him of the facts stated, may be accepted by him by word or conduct, action or demeanour and it is then the function of the jury which tries the case to determine whether it was accepted by him in whole or in part: (see Archbold on Criminal Pleading, Evidence and Practice , 1999 edition, 15–390). Nor are we concerned with the different considerations which may arise where the accused denies the charge and the adduction of that evidence, given its extremely limited probative value, may, at least in some circumstances, compromise the fairness of the subsequent trial. For that reason, it has been the law both in England and Ireland since the leading case of R. v. Christie [1914] AC 545, that a trial judge should in most cases take care to ensure that such evidence is excluded where it has little or no evidential value. In the present case, that issue does not arise since the adduction in evidence of the exculpatory statement made by the applicant to Garda Healy when he was stopped by the gardaí was not objected to on his behalf.

Nor is this case concerned with the formal evidence routinely given in many cases as to the response by an accused person following his being charged and cautioned. Such evidence is normally led as one of the formal proofs in the prosecution’s case because, it is thought, rightly or wrongly, that evidence must be given of the accused having been charged and it would be unwise to allow the jury to speculate as to what he might have said in response. Except in cases where his response was inculpatory, such evidence is normally innocuous and will almost certainly have long faded from the jury’s minds when they retire to consider their verdict.

This case is solely concerned with the claimed right of a person detained under s.4 of the 1984 Act to refuse to answer questions put to him by the gardaí during the course of his detention and the corollary of that right i.e. the need to ensure that no inferences adverse to him are drawn at any subsequent trial from the exercise of that right.

The history of the law prior to the enactment of the 1984 Act is relevant. Our criminal law, deriving ultimately from the Anglo-American system, historically reflected a tension between two competing principles. The first was the right and duty of the police to investigate crime of every sort in the interests of the community as a whole and the corresponding obligation on citizens to assist them in that task. The second was the right of a suspect at a defined stage in the investigation to refuse to answer any questions and the obligation on the police to inform him of that right in the almost universally known formula of the traditional police caution.

These principles were eventually enshrined in what became known as the ‘Judges’ Rules’ set out in R. v. Voisin [1918] 1 KB 531 at p. 539. Those rules were intended solely as guidance for police officers in the conduct of investigation and were not rules of law. However, where admissions, alleged to have been made by an accused person, were made or obtained in circumstances which were in contravention of the rules, the trial judge had a judicial discretion to admit or not to admit the admissions in question, provided that he was satisfied that they were voluntary. If they were not voluntary, he was required to exclude them. (On this topic generally, see the decisions of this Court in McCarrick v. Leavy [1964] IR 225 and People (Attorney General) v. Cummins [1972] IR 312.) In the context of this case, the relevant rules are as follows:

2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him questions, or any further questions as the case may be.
3. Persons in custody should not be questioned without the usual caution being first administered ….
…
5. The caution to be administered to a prisoner when he is formally charged should therefore be in the following words:
Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.

The common law also proceeded on the basis that the police had no right to detain a person whom they suspected of having committed a crime for the purpose of questioning him. Their only right was to arrest him and bring him before the appropriate court, there to be charged, as soon as practicable. Since, however, many people were unaware of their rights in this context and were not normally reminded of them, the practice, euphemistically described as ‘assisting the police with their enquiries’, mutated into what was, in practice if not in theory, a form of unlawful detention. (See Dunne v. Clinton [1930] IR 366; People (DPP) v. O’Loughlin [1979] IR 85)

Prior to the 1984 Act, one major abridgement of the citizen’s rights in this regard had been effected in the form of the Offences Against the State Acts 1939–1972. While the provisions of that legislation were intended to afford the gardaí specific powers in cases where the security of the State was threatened, they were routinely applied in cases of what came to be described as ‘ordinary crime’. Thus, a person who broke into a house and murdered the occupant could not be detained for questioning on the ground that he was suspected of having committed the murder; he could, however, be detained because he was suspected of having committed an act of malicious damage.

It was against this background that the 1984 Act was enacted. The policy of the legislation is clear: to end the dubious practice of bringing people to the station for the purpose of ‘assisting the gardaí with their enquiries’, or in purported reliance on the legislation directed primarily at subversive crime, and to substitute therefor an express statutory regime under which the gardaí would have the right to detain a person in custody for a specified period of six hours which could be extended for a further six hours for the purpose of investigating specified crimes. That included the right to question him concerning the crime, but the significant abridgement of the suspected person’s rights at common law was balanced by the provision of express safeguards. As elaborated in the rules made on foot of the legislation, these included obligations on the gardaí to keep detailed records as to the custody of the suspect and provisions designed to ensure that the questioning did not become unfairly oppressive. (See Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations (SI No. 119 of 1987)).

S. 5(1) of the 1984 Act requires the member in charge of the station to inform a person without delay of his right to consult a solicitor and to have that solicitor and another person named by the detainee notified of his detention and the station in which he is being detained. While there is no express requirement in the Act or the rules that the caution in the usual form must also be administered before a person is questioned, it is quite clear that it should be given and, indeed, was given in the present case. The law was stated in the court by Walsh J, in a passage subsequently approved of by Finlay CJ giving the judgment of the court in People (DPP) v. Quilligan (No. 3) [1993] 2 IR 305, as follows:

… while ss. 30 and 52 [of the Offences Against the State Act 1939] respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation as such conferred by the Act, nonetheless the person arrested and detained in custody in a garda station for the specified statutory periods, as in cases of arrest for ‘ordinary’ offences, may be asked any other question by members of the Garda Síochána present, but he is under no obligation to answer any of them and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all persons detained under s. 30 ….

(People (DPP) v. Quilligan [1986] IR 495 at p. 508; [1987] ILRM 606 at p. 623.)

It is clear that the same considerations apply to persons detained under s.4 of the 1984 Act.

The 1984 Act, accordingly, did not modify in any way the right of a person whom the gardaí suspect of having committed a crime to refuse to answer questions put to him by the gardaí and his entitlement under the Judges’ Rules to be reminded of that right before any questioning begins. That right would, of course, be significantly eroded if at the subsequent trial of the person concerned the jury could be invited to draw inferences adverse to him from his failure to reply to those questions and, specifically, to his failure to give the questioning gardaí an account similar to that subsequently given by him in evidence. It would also render virtually meaningless the caution required to be given to him under the Judges’ Rules.

It must also be borne in mind that it is a usual practice for solicitors to advise their clients while they are in custody not to answer any questions put to them by the gardaí, if they consider that it would not be in their interests to do so. However, if the jury could be invited to draw inferences from the failure to reply to such questions, the result would be that persons in custody would have to be advised by solicitors that, notwithstanding the terms of the caution, it might be inimical to their client’s interests not to make a full statement to the gardaí, thereby eroding further the right of silence recognised at common law.

Had the Oireachtas intended to abridge the right of silence in this manner, it would have expressly so legislated. Ss. 18 and 19 of the 1984 Act enable the court of trial to draw inferences from the failure or refusal of a person arrested by the gardaí to account for the presence of certain objects in his possession or his having been found at a particular place. Such inferences may afford corroboration of any evidence, but the person may not be convicted of an offence solely on the basis of such inferences. This leads to the inevitable conclusion that no such general abridgement of the right of silence was intended to be effected where a person declined to answer questions put to him by the gardaí during the course of such a detention.

It is also noteworthy that such an alteration in the law was effected, in England, in circumstances of acute controversy, by s.34 of the Criminal Justice and Public Order Act 1994, which provides inter alia that, where a person, on being questioned under caution by an investigating police officer, fails to mention any fact relied on in his defence in the proceedings, the court or jury:

may draw such inferences from the failure as appear proper.

That in turn led to an amendment in that Act of the traditional form of caution which, as set out in Code C, paragraph 10.4 [of the UK Code of Practice for the Detention, Treatment and Questioning of Persons by Prison Officers], is now as follows:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.

The absence of any such provisions in the 1984 Act speaks for itself. In the case of the Offences Against the State Act 1939, the right of silence was modified in so far as s.52 of that Act made a failure to account for one’s movements, when requested to do so under that Act, a punishable offence. In Heaney v. Ireland [1994] 3 IR 593; [1994] 2 ILRM 420, Costello J, as he then was, concluded that the right of silence modified by this provision was a constitutional right deriving from Article 38.1 of the Constitution guaranteeing that no person would be tried on any criminal charge ‘save in due course of law’. He held, however, that the abridgement of the right of silence effected by s.52 was proportionate to the objectives intended to be achieved by the legislation. He, accordingly, rejected the challenge to the constitutionality of the provision and his decision was upheld by this Court, although in the judgment of O’Flaherty J the constitutional right to remain silent is traced to a different source, i.e. as being a corollary to the freedom of expression also recognised by the Constitution. The same principles were applied by this Court in Rock v. Ireland [1997] 3 IR 484; [1998] 2 ILRM 35 where the constitutionality of ss. 18 and 19 of the 1984 Act was upheld. (See also the decision of Barrington J, speaking for the court, in In re National Irish Bank Ltd [1999] 1 ILRM 321.)

It follows that the right of suspects in custody to remain silent, recognised by the common law, is also a constitutional right and the provisions of the 1984 Act must be construed accordingly. Absent any express statutory provisions entitling a court or jury to draw inferences from such silence, the conclusion follows inevitably that the right is left unaffected by the 1984 Act save in cases coming within ss. 18 and 19, and must be upheld by the courts.

Conclusions
Mr Grehan, who argued this case on behalf of the applicant with conspicuous ability, accepted that he would have had no complaint if the prosecution had simply informed the court that the applicant had been detained under the 1984 Act but that nothing of probative value had emerged from the detention. He urged, however, that that was not what had happened in this case: on the contrary, evidence was adduced by the prosecution to the jury as to what transpired during the detention, after the complainant had been cross-examined, with the avowed intention of cross-examining the applicant as to his failure to give such an account during the course of his detention when he came to give evidence, a course of action strenuously objected to on behalf of the defence but permitted by the learned trial judge.

Again, while Mr Grehan accepted that he had not objected to the cross-examination when it eventually took place, he also pointed out that at that stage the trial judge had already made his ruling on the matter and that, in any event, the damage was done so far as the defence was concerned once the cross-examination on this topic was under way. While also accepting that it was open to him at that stage to apply to the trial judge to discharge the jury, he submitted that this was a dubious course for the defence to adopt in a case where the jury had been presented with two diametrically opposed versions of what had happened on that evening between the complainant and the applicant and the defence might justifiably have hoped that the jury would be left with a reasonable doubt as to whether the complainant’s version was true.

The court is satisfied that Mr Grehan’s submissions are well founded. The defence should not have been put at any disadvantage on the hearing of the appeal by the decision, reasonable in all the circumstances, not to object to the cross-examination or apply for the discharge of the jury.

The principles applicable in a case such as the present where a defendant while detained under the provisions of the 1984 Act has refused to answer questions put to him can be stated as follows:

(1) Where nothing of probative value has emerged as a result of such a detention but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained but that nothing of probative value emerged.
(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant during the course of his detention to answer any questions be permitted.
(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.
The application of the first and second of these principles to the present case must result in the appeal being allowed. Unfortunately, the difficulties were compounded by the passage in the trial judge’s charge which was by implication critical of the appellant for having made statements as to what transpired during the course of his detention which had not been put to the gardaí and which, the trial judge invited the jury to infer, had not been transmitted to his legal advisers.

It must be said, in fairness to the trial judge, that, once the misapprehension he was under when making those observations was made clear to him, he might have been prepared to rectify the matter when the jury was recalled. The defence, however, adopted the position, as they were entitled to do, that the matter was beyond rectification and sought the discharge of the jury, a course opposed by the prosecution which the trial judge did not adopt. The jury, accordingly, in deliberating on the guilt or innocence of the accused, might well have been under the impression that they were not only entitled to draw adverse inferences from the failure of the defendant to give his version of events in detail in the garda station but that they were also entitled to draw such inferences from the supposed failure of the applicant to instruct his legal advisers as to what had transpired during the course of that questioning.

Any inferences which the jury might have drawn to that effect would have been in direct violation of the applicant’s constitutionally guaranteed right to remain silent, and might well have been a factor in the jury’s assessment of the credibility of the applicant’s account of what happened between him and the complainant on that night. The verdict of the jury cannot, accordingly, in those circumstances be regarded as safe or satisfactory.

The appeal will be allowed and in place of the order of the Court of Criminal Appeal there will be an order reversing the conviction and directing that the applicant be retried in respect of count number 2.

People (DPP) v Bowes

[2004] I.E.C.C.A. 44
JUDGMENT of the Court delivered on the 22nd day of November, 2004 by FENNELLY J.

The Applicant was convicted on 8th July 2003 in the Circuit Criminal Court, before His Honour Judge O’Donnell and a jury, on two counts of possession on 3rd April 2000 at James’s Street, Dublin of a controlled drug, namely diamorphine or heroin. The first count was of possession for sale or supply. Since the market value was in excess of £10,000, the offence was covered by section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the same Act of 1999) of the Misuse of Drugs Act, 1977. The Applicant was sentenced to serve a term of twelve years imprisonment on the first count, the final two years being suspended. He has applied to this Court on a number of grounds for liberty to appeal against his conviction.

The Facts
On 3rd April 2000, members of the Garda National Drug Unit, using six unmarked Garda cars, carried out what, at the trial, was called a “hit” against a grey Honda registration number 92 D 7570. They were acting on what was described as “confidential information received by Detective Sergeant Walsh.”
In respect of the details and nature of the alleged “confidential information,” evidence was led at the hearing, firstly, that one garda witness, Detective Sergeant Doran, was aware that Detective Sergeant Walsh “was aware of confidential information in relation to importation and distribution of substantial quantities of diamorphine” and, secondly, when the latter came to give evidence that the “confidential information” related to “the accused James Bowes, the man in the dock.”
The time of the police operation was 3 pm; the traffic was heavy; the weather was sunny; the car was being driven by the Applicant, who was alone in the car.
The operation was apparently led by Detective Garda (later Detective Sergeant) Patricia McGarrity. She abandoned her car and approached the Honda and produced her Garda identification card to the driver, the Applicant. She told him that she and the other people there were gardaí. She informed him that she had grounds for believing that he had controlled drugs in his possession and that she was stopping and searching him and his vehicle under section 23 of the Misuse of Drugs Acts 1977-1984. She cautioned him in the usual terms. The gardaí blocked the car. Detective Garda Doran said that the Applicant was accelerating hard on the car, though it was not moving. Detective Garda McGarrity and Detective Garda Collis took the Applicant out of the car. They restrained him by placing him on the ground face down.
While the caution was being administered, the car was being searched. Detective Garda Carey called to Detective Garda McGarrity: “Patricia, there’s drugs in the boot, heroin in the boot.” She then informed the Applicant that he was no longer being detained for the purpose of search but that she was now arresting him for an offence under section 15 of the Misuse of Drugs Act. Having administered the usual legal caution, Detective Garda McGarrity explained to the Applicant the reason for his arrest. She asked him if there were any more drugs in the car. He replied: “only the bags of gear in the boot.” She asked if there were any needles or syringes in the car, to which he replied: “no.” Detective Garda Doran said he heard the exchanges between Detective Garda McGarrity and the Applicant, including the answers to the two questions. He said that he noted these in his notebook, which he produced at the trial. It was common case that the entire operation at James’s Street took a matter of minutes. The Applicant was not, at that point, shown what the gardaí had found in the boot or asked to comment.
The Applicant, both through cross-examination by his counsel and in his own evidence, denied that he was cautioned or that he was asked or answered the two questions mentioned at the end of the preceding paragraph. His case, at all times, was that he was put on the ground with his clothes over his head and that he could not hear what was going on.
Detective Garda PJ Carey he said that he found two plastic sacks side by side in the boot of the car. Each contained three brown plastic wrapped packages containing powder. On analysis, five of the six sacks were found to contain heroin. The total quantity was almost five kilos. The concentration was between 56% and 63%. Also in the boot were weighing scales packed in a cardboard box. This is material to a fingerprint issue mentioned later. In the front of the car, there was found a green jacket in which was found a receipt dated 2nd April 2000 for the purchase of the weighing scales. The Detective Garda said that, having informed Detective Garda McGarrity of what was in it, he jumped into the car and drove it out of the area. He took it to Blanchardstown Garda Station.
The Applicant, now under arrest, was also taken to Blanchardstown Garda Station, where the garda investigation continued. His detention was authorised pursuant to section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. That authorisation was for an initial period of six hours from the time of arrest (section 2(2)(a)), which was duly extended for eighteen hours (section 2(2)(b)) and further extended for twenty four hours (section 2(2)(c)). The legality of the arrest or further detention was not contested. In addition, authority was given pursuant to section 6 of the Criminal Justice Act, 1984 for the Applicant to be photographed and fingerprinted.
Detective Garda Doran said that, as the Applicant was being placed in a cell in Blanchardstown Garda Station, having cautioned him, he read over to him the notes from his notebook of what he had said, in answer to questions from Detective Garda McGarrity in James’s Street and that the Applicant agreed that the notes were correct but refused to sign. All of this was confirmed in the evidence of Detective Garda Collis, but denied by the applicant.
The Applicant was questioned in Blanchardstown from 3rd April to the evening of 4th April. The admissibility of his answers to garda questioning was contested on voire dire, though not on the basis that his answers were not voluntary, but rather that they were prejudicial rather than probative and tended to prejudice, in particular, his reliance on his constitutional right to silence.
The learned trial judge made a number of rulings on admissibility. It is best, in the first instance, to describe the evidence which was admitted and, therefore, heard by the jury. The following is the evidence from the interviews that was admitted:

1. Q. Do you understand the caution?
A. Yea
Q. Do you understand the reason for your arrest?
A. No.
Q. The reason you were arrested is that you were stopped today on James St and inside the boot of your car was a quantity of suspected heroin that’s the reason for your arrest?
A. If you say so I thought it was old washing.
Q. But you didn’t call it old washing at the scene of your arrest?
A. I’ve nothing to say.
Q. Well then you must know what we are talking about?
A. All I am saying is that I put my washing in the car boot this morning.
2. Q. I put it to you that you have a case to answer after a large quantity of heroin was found in your car boot?
A. Listen I know youse are only doing your job and well done you got a result today but as far as I am concerned it’s not over until the fat lady signs (sic).
3. Q. I must point out to you that certain inferences can be drawn by your failure to answer some questions in relation to the amount of alleged heroin found in your car today?
A. Nothing to say. [Note: the question but not the answer was given in evidence; see below.]
4. [Following fingerprinting and photographing, the Applicant was shown the exhibits an event which was accompanied by the following remarks.]
Q. I am now showing you item 1 a brown packages (sic) that was in P.J.C. 2 which is two brown packages in a black refuse sack. This was found in your car today. What do you say about these (D/Gda Carey holds up and shows James Bowes a brown sellotaped wrapped bale in an evidence bag and also an evidence bag labelled P.J.C. 2 containing 2 bales wrapped in brown tape in a black type refuse sack).
A. I’ve nothing to say until I see my solicitor.
5. In addition, there was an uncontested and signed statement in which the Applicant explained the circumstances in which he claimed to be in possession of the Honda motor car.
There was also fingerprint evidence. Fingerprints of the Applicant were, as already indicated, authorised. These were taken while he was in garda custody. On comparison with two prints found on the weighing scales found in the boot of the car, one of these matched the print of the ring finger of the Applicant’s left hand.

Grounds of Appeal
The fourteen grounds of appeal are largely repetitious and overlapping. They amount, in effect, to the following.

1. A number of grounds relate to the alleged infringement of the constitutional right to silence of the Applicant with regard to either his admissions or his silence. In particular, it is said that this occurred when counsel for the prosecution, in opening the case to the jury, said that the Applicant had made no comment when shown the materials found in the boot of the car and referred to the fact that the Applicant had made no statement to the gardaí until he had been in custody for twenty four hours. Furthermore, the learned trial judge should not have admitted evidence of the warning given to the Applicant that inferences might be drawn from his failure to answer questions, when articles were show to him. Finally, it was argued that the learned trial judge should not have admitted into evidence the statements allegedly made by the Applicant in the “question and answer session,” as these had no probative value and invited the jury to speculate as to the contents of the remaining hours of interview. Overall, it was claimed, in reliance on the decision of the Supreme Court in DPP v Finnerty [1999] 4 I.R. 364, that there had been a violation of the Applicant’s right to remain silent.
2. It was objected that the details of the evidence regarding the alleged “confidential information” should not have given; that the judge should have discharged the jury, once it had been given; and that the learned trial judge was wrong to conclude that it was possible for the Applicant to have a fair trial. Reliance was placed on the decision of this Court in DPP v McGartland (Unreported 20th January 2003).
3. Objection was taken to the admissibility of the fingerprint evidence on the basis that the prints taken from the Applicant in garda custody should have been destroyed pursuant to the provisions of section 8 of the Criminal Justice Act, 1984. For the purposes of that provision, it was argued that the Applicant had not been charged within six months. That was because, proceedings having been commenced within that period, they were struck out for failure to serve the book of evidence and recommenced outside the period. If the prints ought to have been destroyed, they ought not to have been available for the purposes of giving evidence about them.
4. It was also objected that the learned trial judge had erred in the exercise of his discretion in admitting a late notice of additional evidence during the trial. The context of this argument needs to be explained. The Applicant had claimed in his written statement to the gardaí that he had no involvement with the Honda motor car prior to the 2nd April 2000 and that he was driving it only at the request of another person in order to have it repaired. Detective Garda Barber claimed in a statement of additional evidence served only after the start of the trial that he had seen the Applicant driving the car in question in February 2000 and that he had caused a record of this fact to placed on the garda computer record system, PULSE. The objection was twofold. Firstly, that the Applicant could not fairly be expected to recall where he was on a date three and a half years prior to the trial, especially when this evidence had always available to the prosecution. Secondly, it was prejudicial, because it showed that the Applicant was a person so well known to the gardaí that it was considered appropriate to take particular note that he was driving a particular car. The state explained that there was evidence on the book of evidence in the form of records relating to the car in question found in the flat of the Applicant, who was thus aware that an attempt would be made to prove his link with the car in question. Unfortunately, the relevant garda witness suffered a bereavement of a close family member and was unavailable to give evidence. Hence, the resort to the alternative of Detective Garda Barber’s evidence to discredit the claim that the Applicant had had no prior involvement with that car.
5. Objection was taken that the gardaí could not explain the whereabouts of the Honda car, which was not, therefore, available for inspection on behalf of the Applicant. This, it was said, rendered the trial unsafe and unsatisfactory.
6. A number of other grounds were advance concerning the manner in which exhibits were identified in evidence and in relation to the charge of the learned trial judge. All these were specific to the circumstances of the particular trial. In the view the court takes regarding the appeal as a whole, it is not necessary to consider these grounds.
Consideration of the Grounds of Appeal
The court has decided to consider the foregoing grounds of appeal in the following order.

The “Confidential Information”
The Court is satisfied that the evidence regarding the “confidential information” should not have been given. It was not probative of any element of the case against the Applicant. Certainly, the fact that gardaí from the National Drugs Unit, in significant numbers and in plain clothes particularly targeted a car driven by the Applicant was almost certain to rouse the suspicions of the jury that the gardaí were acting on information. However, it was unnecessary to lead any evidence at all on the subject of “confidential information.”
It was argued at the trial, though not on this application, that this evidence cast light on the state of mind of the gardaí in question, but that was never a relevant fact to be proved. In any event, the actual evidence given to the effect that the information related to the importation and distribution of diamorphine and that it related to the accused person was tantamount to giving hearsay evidence that he was involved in those activities.
This case is much stronger than McGartland, where the impugned evidence was that the garda officer knew the home of the accused, “because I had known him for some time and I was familiar with the address…” The judgment of the Court, delivered by Keane C.J. said that this evidence could only have been damaging to the appellant, because it “could lead the jury to the inference that this was a person who was known to the police, a familiar enough phrase in everyday parlance, not known in any social context, the jury were entitled to assume, but known as someone who, at the very least, was suspected of dealing in drugs, and known to the police previously, apart altogether from this particular matter that led to the raid on the house….”
Accordingly, on that ground alone, the Court is satisfied that the application must succeed. It is obvious, however, that this is a case for a retrial, when all the evidence, as well as evidence not led on the previous occasion, may be given again. Therefore, it remains necessary to consider those grounds of appeal which may be relevant to the retrial.

The Fingerprint Evidence
The next matter to be considered is that concerning the fingerprint evidence. Section 8(1) of the Criminal Justice Act, 1984 ordains that fingerprints taken pursuant to the provisions of the Act “be destroyed as this section directs.” The material provisions for the purposes of the present case are:
“2) Where proceedings for an offence………… are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.
(3) Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction shall be carried out on the acquittal, discharge or discontinuance.”

The argument, at the Court of trial, as on this application, concerned the meaning of the words, “discharge or discontinuance.” In the written submissions of the Applicant, it was argued that the proceedings were “discontinued” when struck out in the District Court. The Applicant disputed reliance by the prosecution on the use of the word “discontinue” in civil proceedings, since proceedings must be considered to have been discontinued whether the prosecution withdraws the charges or the District Court strikes them out for some failure of the prosecution. Mr Durnin, Senior Counsel, for the Applicant focussed his submissions at the hearing on the first word, namely “discharge” rather then the second of these words. He relied especially on the decision of the Supreme Court Zambra v. District Judge McNulty and the Director of Public Prosecutions [2002] 2 IR 351, as demonstrating that the first set of proceedings had ended and led to a “discharge” of the Applicant.
In the view of this court, the case of Zambra does not assist in any respect in the interpretation of section 8 of the 1984 Act. That case was concerned only with whether a “step” had been taken within the meaning of section 5 of the Criminal Procedure Act, 1976, when the District Court extended time for the service of the book of evidence.
The Court must, nonetheless, ascribe a meaning to section 8(2) of the 1984 Act. Clearly, there was no acquittal when the charges were struck out. Equally, the Court is of the view that discontinuance, by analogy with the well-known use of that word on the civil side of the court refers to a voluntary act of the prosecuting authority to bring the proceedings to an end, as by formally withdrawing the charges or entering a nolle prosequi. It is less easy to discern the meaning of the word “discharge.” Section 8(5) of the Criminal Procedure Act, 1967 provided for the decision a District Judge might make at the end of a preliminary examination. Where there was no sufficient evidence to justify sending the accused forward for trial on the offences charged and no other offence was disclosed, the subsection provided:

“If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.”
The entire preliminary examination procedure has now been abolished and replaced by the procedure under Part III of the Criminal Justice Act, 1999. In that Act, it appears that, whenever the District Court reaches the stage when the accused is not to be sent forward for trial (as when the prosecution does not consent or the specified documents are not served), it is required, under several provisions of the new Part 1A inserted into the 1967 Act to “strike out the proceedings against the accused in relation to that offence.” When the District Court strikes out proceedings, they are brought to an end. In the case of Kennelly v Cronin [2002] 4 IR 292, proceedings had been struck out in the District Court, by reason of the failure of the prosecution to serve the book of evidence within the time allowed. In the view of McGuinness J: “This was indeed a due disposal of the charges against him according to law.”
In the absence of any statutory definition, the word “discharged” should be given its ordinary and natural meaning. The effect of a decision of a court to strike out proceedings based on a charge is that the proceedings themselves are at an end. The wording of section 8(5) of the Act of 1967, referred to above, is relevant, since that section was in force at the time of the enactment of the 1984 Act. This suggests that the effect of a District Court order striking out proceedings when the book of evidence is not served in time is to discharge the accused. Since there has not been a disposal on the merits, this does not prevent the prosecution from recommencing the proceedings. However, the accused must be charged anew. As appears from the decision in Kennelly v Cronin, any bail bonds are discharged. The only natural conclusion is, therefore, that the accused has been discharged in relation to that charge.
It follows that the fingerprints taken from the Applicant in garda custody should have been destroyed, that they should not have been available to be proved in evidence and should not, therefore, have been admitted. None of this affects the possibility of presenting fingerprint evidence at the retrial, provided new prints for purposes of comparison can be lawfully obtained. That is not, however, before the Court.

The alleged infringement of the Right to Silence
This ground of complaint comprises several elements as outlined at paragraph 1 above. Heavy reliance was placed on the judgment of Keane J, as he then was, speaking for a unanimous Supreme Court in Finnerty. It is important to recall the factual context of Finnerty. There, as here, the accused had been detained pursuant to the Criminal Justice Act, 1984. There the charge was one of rape. The accused had availed of his right to remain silent and had declined to answer any garda questions. At the trial both through cross-examination by his counsel and in his own evidence, he put forward a defence of consensual sex not previously mentioned by him. Prosecuting counsel, with the approval of the trial judge, cross-examined him with a view to undermining his credibility on his failure to mention this defence when questioned by the gardaí. This was upheld in this Court. On further appeal pursuant to section 29 of the Criminal Justice Act, 1924, the Supreme Court allowed the appeal. The most relevant passage in the judgment of Keane J is:
“The principles applicable in a case such as the present where a defendant while detained under the provisions of the 1984 Act has refused to answer questions put to him can be stated as follows:-
(1) Where nothing of probative value has emerged as a result of such a detention but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained but that nothing of probative value emerged.
(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant during the course of his detention to answer any questions be permitted.
(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.”

In the present case, there was evidence other than the silence of the Applicant. It is set out at paragraphs 1, 2 and 3 of the summary of the interviews set out above. It is best, in the first instance, to consider the objection to this evidence. It must be noted, at the outset, that it was not contended that the arrest or subsequent detention of the Applicant was unlawful. Evidence was given that the usual caution was administered. It was not contended that the statements were involuntary. Rather the Applicant maintained that he never gave the answers attributed to him. He refused to sign the garda record of the interviews. In these circumstances, there could normally be no objection to the admissibility of the answers given by a suspect in response to garda questioning. The whole purpose of the 1984 Act was to grant to the gardai to an express legal power to detain persons suspected of crime so as to facilitate its investigation. The following further passage from Finnerty explains the way in which the Act departed from the previous practice:
“It was against this background that the 1984 Act was enacted. The policy of the legislation is clear: to end the dubious practice of bringing people to the station for the purpose of “assisting the gardaí with their enquiries”, or in purported reliance on the legislation directed primarily at subversive crime, and to substitute therefor an express statutory regime under which the gardaí would have the right to detain a person in custody for a specified period of six hours which could be extended for a further six hours for the purpose of investigating specified crimes. That included the right to question him concerning the crime, but the significant abridgement of the suspected person’s rights at common law was balanced by the provision of express safeguards.”
Keane J went on to insist that “the 1984 Act … … did not modify in any way the right of a person whom the gardaí suspect of having committed a crime to refuse to answer questions put to him by the gardaí and his entitlement under the Judges’ Rules to be reminded of that right before any questioning begins.”
The basis of the objection on behalf of the Applicant is that the answers were at best ambiguous, did not amounting to clear admissions and thus had no inherent probative value. Furthermore, and principally, it was urged that they were isolated answers given during a lengthy period of questioning, all of which would have led the jury to speculate as to what else took place during the interview. In the view of the court these submissions are not well founded. It is undoubtedly the fact that the Applicant made no express admission. However, his answers suggesting that the packages in the car boot might or did contain washing were matters that the jury were entitled to hear in the circumstances of the case. They purported to be explanations offered regarding what the gardai had found in the boot of the car. In giving those answers, the Applicant was not exercising his right to silence. The case is different from Finnerty, where the accused resolutely remained silent. Insofar as the Applicant in this case followed that course, evidence of his refusal to answer was not admitted. It was inevitable that the jury would be aware that he was detained for some time. However, in respect of other periods of detention, the evidence given followed the Finnerty admonition or formula that nothing of probative value emerged. It should be said, of course, that the cautions of Keane J (as he then was) in Finnerty must be respected at any retrial.
Turning to the admission of evidence regarding the warning prior to showing the Applicant the packages and other material found in the car, it is necessary to refer, in the first instance, to the relevant statutory provision. Section 7 of the Criminal Justice (Drug Trafficking) Act, 1996 allows inferences to be drawn from silence in proceedings for drug trafficking offences. If the person is questioned by a member of the Garda Síochána and has “failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention when so questioned …” subsection 1 of the section provides that:
“the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as. or as capable of amounting to, corroboration of any evidence in relation to which the failure is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure.”
However, section 7(2) provides:
“Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of such failure might be.”
The operation of this procedure at the trial was, to say the least, confusing. The intention of the gardaí appears to have been to show to the Applicant the items found in the car boot, having given him the statutory warning, and to give in evidence his reaction, including his silence. Detective Garda Collis gave evidence that, during the garda interview, the Applicant was informed as follows:
“I must point out to you that certain inferences can be drawn by your failure to answer some questions in relation to the amount of Heroin found in your car today.”

The learned trial judge, when asked to rule on the admissibility of this warning in evidence, expressed himself as having difficulties with the context of the caution. He referred to the fact that, by the usual caution, the accused had been told that he did not have to say anything, but that he was then told that “certain inferences could be drawn.” He thought that the caution should have been more specific. He suggested that the words could have been:
“… notwithstanding that the caution I am now telling you that under the Drug Trafficking Acts, section 7, that if you fail to answer or offer an explanation it is open to the court to draw to the attention of the jury or draw inferences ………………”

Nonetheless, when he came to give his rulings on admissibility, he said:
“I have already dealt with the issue that was identified to me today is that it is perfectly in order to say that these matters were shown to him without any response.”
He also ruled admissible a repetition in different words of the garda warning:
“You are aware that certain inferences can be drawn by the court in relation to your failure to mention any fact which you may rely on in your defence. Did you discuss this with your solicitor”

The Applicant is recorded as replying “Yeah.” This was not, however, given in evidence.
At the point when this evidence was led by prosecuting counsel and given in the presence of the jury, the learned trial judge intervened and ruled that that could not “be put to him” (Detective Garda Collis).
To add to the mystery, the transcript records counsel for the Applicant as saying that it had been agreed that “the question, that the particular caution would be given [in evidence] and that evidence of Garda Carey producing the exhibits would be given………” Nonetheless, slightly later, he is recorded as submitting that the warning did “not comply with the Act.” This became the true basis of objection at the appeal.
Having intervened after the presentation of the evidence, the learned trial judge directed the jury that they were to ignore it. However, he declined the defence application that he should discharge the jury.
The Applicant’s three complaints are interrelated. Counsel should not have told the jury about this evidence in opening; the prosecution should not have led it; once it had been heard by the jury, the learned trial judge should have discharged the jury. They all depend on whether the evidence was admissible.
The object of the usual caution is to inform the suspect that he is not obliged to answer any questions. This was long since required by the Judges’ Rules and became, over the years, a standard requirement. In Finnerty, it was seen as underpinning the constitutional right to silence. Thus, a suspect may be lawfully detained in custody for the purpose of the investigation of a crime. The gardai may question him; he is not, however, bound to answer. Furthermore, no comment can be made upon his failure to respond to questioning, no matter how bleak and incriminating the circumstances.
However, the legislature, in the terms of section 7, has qualified that right, by permitting a court of trial to draw inferences from a failure to mention a particular fact in circumstances where it would have been reasonable to expect him to do so. The two provisions are not inconsistent, as the learned trial judge seems to have thought. The suspect remains, in principle, free to remain silent. However, his exercise of that right may, subject to compliance with the section, itself become part of evidence.
In the present case, the critical question at the trial became whether the warning given by the gardai complied with the requirements of section 7(2) of the 1996 Act. The Applicant, under the first ground of appeal, as summarised above, submits that the jury should have been discharged by reason of the reference of counsel in opening to evidence of the warning and the giving in evidence of the warning that an inference might be drawn from failure to mention a fact relevant to his defence.
The terms of the section must first be considered. The permitted inference relates to “any fact relied on in [the] defence…… being a fact which in the circumstances existing at the time he or she could reasonably have been expected to mention….” The section does not relate to silence generally. In particular, it does not relate to the fact that the accused, in response to garda questioning, exercised his right to remain silent and declined to answer any questions. There must be an identifiable fact relied on by the defence at the trial which the Applicant “could reasonably have been expected to mention when…questioned.” The prosecution case was never presented in those terms. Counsel commented, in opening, that the Applicant, when shown the various items in garda custody, “had no comment to make….” That was clearly inappropriate. The prosecution did not yet know what fact or facts would be relied on by the defence. The section did not justify any prosecution reliance on failure by an accused person to comment.
The learned trial judge, as well as counsel on both sides, appears to have proceeded on the footing that the section permitted general silence to be admitted in evidence, once a warning had been given. It does not.
The Applicant gave evidence of a number of matters in his defence. It is not appropriate for this court to express any view as to whether his failure to mention any of those matters brought the section into play. It does not arise on this appeal.
It suffices to say that the comment of counsel in opening was inappropriate, since the prosecution did not yet know what fact or facts would be relied on by the defence. The warning required by the section must draw the attention of the suspect to the danger of not mentioning any fact upon which he will or is likely to rely in his defence. The first version of the warning given, relating to “failure to answer some questions,” clearly does not satisfy that requirement. The second formulation mentioned “failure to mention any fact which you may rely on in your defence” and is closer to what is needed. However, it was given at a very late stage in the questioning and certainly long after the items of evidence were shown to the Applicant. In any event, for the reason already given, it does not relate to any fact of the sort covered by the section.
For these reasons, the court is satisfied that this ground of appeal succeeds insofar as reliance was placed on the failure of the Applicant to comment on the pieces of evidence produced to him.

Other Grounds of Appeal
In these circumstances, it is unnecessary to rule on the other grounds of appeal.
Any argument as to whether the learned trial judge wrongly exercised his discretion by permitting the late introduction of additional evidence will have to be viewed in the light of the circumstances prevailing at the retrial. If the prosecution is in possession of evidence tending to associate the Applicant with the Honda motor car prior to April 2000, they may not need to rely on the evidence of Detective Garda Barber. It will not necessarily be so prejudicial that it ought not to be given in evidence. Care should be taken to ensure that it does not excite such suspicions. However, it will be a matter for the trial judge to rule, in the light of all the circumstance prevailing.
Questions of the presentation of exhibits or their numbering will be matters for the trial court on the retrial. Finally, it will be a matter for the court of trial to decide whether the Applicant has been subjected to a real risk of an unfair trial by reason of the unavailability of the Honda motor car for examination. No greater evidence was placed before this court than was before the Supreme Court when it decided not to prohibit the Applicant’s trial on this ground. Hardiman J, speaking for the Supreme Court in the case of Bowes v Director of Public Prosecution [2003] 2 I.R. 25 said:
“In Mr. Bowes’ case, the prosecution does not turn on the car itself, nor on the manner of its driving, but on the proposition that drugs were found in its boot immediately after the defendant had been driving it. There is no dispute, in these proceedings that the applicant was in fact in the car: his solicitor’s last fax of the 16th November, 2001 refers to “…. the car in which our client was travelling at the time of his arrest”.
It suffices to quote part only of the concluding part of the judgment of Hardiman J to dispose of this aspect of the Applicant’s case:
“In Mr. Bowes case, by contrast, the notion of seeking a technical examination of the vehicle was a very belated one indeed. The nature of the case against him was immediately apparent: there was a quantity of heroin in the boot of a car which he was driving. He had the benefit of legal advice from the day of his arrest but no question of technical examination arose until virtually the eve of the trial. This is not surprising having regard to what seems to me to be the negligible possibility such examination would offer of rebutting the case against him. It is alleged that there is an absence of technical evidence regarding the layout of the boot and the car, but this is easily obtainable from an examination of any vehicle of the same make and model”.

This Court has no material which might lead it to a different conclusion. This ground of appeal is rejected. It is open to the court of trial to consider any new evidence on this issue which is presented.
For the reasons given in this judgment, the Court will treat the application for leave to appeal as the notice of appeal. It will allow the appeal and order a retrial.

EPA v Swalcliffe Ltd [2004] I.E.H.C. 190