High Court of Ireland Decisions

1. The Applicant in these proceedings is the subject of an enquiry under Article 40.4.2 of the Constitution in circumstances similar to those described in the judgment in the case of Anthony Duncan which I have just delivered.

2. Although represented by different Counsel, the same Solicitor is on record for this application and the Motion in respect of which this judgment is being delivered, seeks precisely the same reliefs as those which were sought in the case of Anthony Duncan.

3. In respect of a number of the reliefs sought, the arguments advanced by Mr McEntee on behalf of Anthony Duncan have been adopted by Mr Forde who appears on behalf of this Applicant. In some cases, Mr McEntee's arguments have been adopted in full by Mr Forde without addition or omission. In others he has advanced additional grounds to those advanced by Mr McEntee.

4. Insofar as the arguments advanced by Mr Forde are precisely the same as those advanced by Mr McEntee in Duncan's case, I do not propose to repeat in this judgment the conclusions which I have already come to in respect of such submissions. This judgment will therefore deal only with the additional submissions which have been made by Mr Forde. It follows therefore, that this judgment should be read in conjunction with that which I have already delivered in the case of Anthony Duncan.

5. The arguments of Mr McEntee in Duncan's case were adopted in full by Mr Forde in the present case. No additional arguments or submissions were advanced and consequently the conclusions which I reached in Anthony Duncan's case apply in this case also.

6. The arguments made by Mr McEntee on this topic were also adopted by Mr Forde. However, he advanced a further and much more far-reaching submission. He submitted that the legal professional privilege claimed by each of the Notice Parties in their respective Affidavits of Discovery was vitiated and ought to be disallowed because of what he described as a conspiracy having taken place between the Director of Public Prosecutions, the Minister for Justice and the Attorney General. He argued that there existed what he called the fraud exception to legal professional privilege. By this I take him to mean that the law recognises circumstances in which legal professional privilege will be refused in respect of documents which are used in furtherance of fraud. Such a proposition is well established and has been so for many years (see for example R v. Cox and Railton (1884 14 QBD 153).

7. In the present case Mr Forde contends that in the case of a conspiracy, legal professional privilege would not extend to documents used in furtherance of such a conspiracy.

8. In the course of argument I enquired of Mr Forde as to whether the allegation of conspiracy which he was making against the Director of Public Prosecutions, the Minister and the Attorney General was of a conspiracy in the legal sense of that word namely, an agreement between these three persons to do an unlawful act or to do a lawful act by unlawful means. He confirmed to me that that indeed was the allegation which he was levelling against them. When I asked him to indicate the nature of the conspiracy he told me that it was a conspiracy on the part of these three office holders to deprive Mr Quinlivan of his right to liberty. He furthermore contended that this conspiracy had its basis in the letter of the 1st November, 1996 from the Attorney General to the Minister for Justice in respect of which both legal professional and executive privilege has been claimed.

9. These are very serious allegations. The gravamen of the charge made against them is that in the conduct of their offices the Director of Public Prosecutions, the Attorney General and the Minister for Justice have engaged in a wrongful conspiracy which would be both a tort and a crime.

10. Needless to say, when Mr Forde put his case on this basis, I asked him to demonstrate the evidence upon which this assertion was based. He did not refer me to a single allegation of such a conspiracy being made in any of the Affidavits filed on behalf of the Applicant. Instead he directed my attention to selected passages from the Affidavits sworn and filed on behalf of the Notice Parties. This material he said supported his contention of the unlawful conspiracy sufficient to defeat the claim of legal professional privilege.

11. The first averment to which he drew my attention was that contained in paragraph 5 of the Affidavit of Barry Donoghue sworn on the 29th November 1996 on behalf of the Director of Public Prosecutions. That paragraph reads as follows:-

12. The second averment to which Mr Forde referred me was paragraph 10 of the Affidavit of Mr Tim Dalton, the Secretary of the Department of Justice sworn on the 29th November 1996. That paragraph reads

13. In order to make sense of that paragraph I should refer to the preceding paragraph of Mr Dalton's Affidavit where he avers that at 9.44pm he received advice from the Senior Legal Assistant in the Attorney General's Office that the Attorney General had advised that the prisoners in question should be released as soon as possible.

14. The third matter to which Mr Forde referred me was the material in paragraphs 3, 4 and 5 of the Affidavit of Deputy Commissioner, Noel Conroy sworn on behalf of the Commissioner of the Garda on 29th November 1996. Those paragraphs read as follows:-

15. The final matter to which I was referred by Mr Forde in support of his allegation of an unlawful conspiracy was contained in the Affidavit of Superintendent Noel McCarthy sworn on 28th November, 1996 at paragraphs 4 and 5. There the Superintendent averred:-

16. On the basis of these averments, Mr Forde alleges a conspiracy on the part of the Director of Public Prosecutions, the Minister and the Attorney General to deprive Mr Quinlivan of his right to liberty.

17. I find no evidence of an unlawful conspiracy contained in these paragraphs to which I was referred by Mr Forde.

18. This was the only evidence to which I was referred as being supportive of the allegation of conspiracy. In the course of their replies both Mr Ryan acting on behalf of the Attorney General and the Minister and Mr McGuinness acting on behalf of the Director protested at the making of this allegation of conspiracy. They pointed out that no evidence to support it was contained in any of the grounding Affidavits sworn on behalf of the Applicant. They furthermore pointed out that there was no evidence whatsoever of such a conspiracy contained in the material to which I was referred by Mr Forde. The description given by Mr Ryan of Mr Forde's allegation as being one of extravagant speculation is, in my view, apposite.

19. Counsel for the Notice Parties further described the making of this allegation as being unfounded and irresponsible. In the absence of any evidence to support it, this allegation of conspiracy should not have been made. It follows that as there is no evidence of an unlawful conspiracy, the legal submissions concerning the vitiation of legal professional privilege find no basis in fact and this contention is rejected.

20. Mr Forde made a number of submissions on the question of executive privilege. He asserted the non-existence of executive privilege or alternatively submitted that it was extremely narrow in concept. It does not appear to me to be necessary to deal with these arguments since Mr Forde has not succeeded in disturbing the legal professional privilege claimed for the documents. Accordingly, since the executive privilege is claimed in respect of the same documents any analysis of these arguments, even if they met with success, would be otiose as the documents would still not be discovered.

21. Insofar as this contention is concerned no additional arguments were made to the Court and consequently I propose to make the same order in this case as I have already made in Duncan's case.