High Court of Ireland Decisions

Murphy v. Flood [1999] IEHC 9 (1st July, 1999)

1999 No. 163JR

BETWEEN

JUDGMENT of Mr Justice McCracken delivered the 1st day of July 1999.

1. The Applicant herein is the Chief Bureau Officer of the Criminal Assets Bureau (hereinafter called the "CAB") and is a Detective Chief Superintendent in An Garda Siochana. The Respondent is the sole member of a Tribunal set up pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 and 1979.

THE CAB

2. The CAB was established pursuant to the Criminal Assets Bureau Act 1996, the objectives of which are set out at Section 4 of that Act as follows:-

"(a) The identification of the assets, wherever situated, of persons which derive or are suspected to derive, directly or indirectly from criminal activity,

(b) The taking of appropriate action under the law to deprive or to deny those persons of the assets or the benefit of such assets, in whole or in part, as may be appropriate, and

(c) The pursuit of any investigation or the doing of any other preparatory work in relation to any proceedings arising from the objectives mentioned in paragraphs (a) and (b)".

3. The CAB is established as a body corporate with perpetual succession. While the Chief Bureau Officer must be appointed from members of the Garda Siochana of the rank of Chief Superintendent, nevertheless the CAB is independent of An Garda Siochana, although it has many of the powers normally given to that body.

Section 8 (7) of the 1996 Act provides:-

"Any information or material obtained by a Bureau Officer for the purposes of this Act may only be disclosed by the Bureau Officer to:-

(a) another Bureau Officer or a member of the staff of the Bureau,

(b) any member of the Garda Siochana for the purposes of Garda functions,

(c) any officer of the Revenue Commissioners for the purposes of the Revenue Acts or any provision of any other enactment, whether passed before or after the passing of this Act, which relates to revenue;

(d) any officer of the Minister for Social Welfare for the purposes of the Social Welfare Acts, or

(e) with the consent of the Chief Bureau Officer, any other officer of another Minister of the Government or of a Local Authority (within the meaning of the Local Government Act, 1941) for the purposes of that other officer exercising or performing his or her powers or duties,

and information, documents or other material obtained by a Bureau Officer or any other person under the provisions of this sub-section shall be admitted in evidence in any subsequent proceedings."

4. The Act also provides for anonymity for officers of the CAB, and clearly confidentiality was intended to play an important part in its functions.

THE TRIBUNAL

5. By a Ministerial Order made on 4th November 1997 the Minister for the Environment and Local Government established the Tribunal and appointed the Respondent to be the sole member therefor. The Order further provided that the Tribunals of Enquiry (Evidence) Acts 1921 and 1979 should apply to the Tribunal. This Order was made pursuant to a resolution ofDail Eireann passed on 7th October 1997 and of Seanad Eireann passed on 8th October 1997. The terms of reference are set out at length therein and it is not necessary to repeat them in this judgment save to say that two of the specific matters which the Tribunal was charged with investigating were set out at paragraphs 4 and 5 as follows:-

"4(a) The identity of all recipients of payments made to political parties or members of either House of the Oireachtas, past or present, or members or officials of a Dublin Local Authority or other public official by Mr Gogarty or Mr Bailey or a connected person or company within the meaning of the Ethics in Public Office Act, 1995, from 20th June 1985 to date, and the circumstances, considerations and motives relative to any such payment;

(b) Whether any of the persons referred to at sub-paragraphs 3(ii) and 3 above were influenced directly or indirectly by the offer or receipt of any such payments or benefits;

5. In the event that the Tribunal in the course of its enquiries is made aware of any Acts associated with the planning process committed on or after the 20th June 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such Acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries."

6. The terms of reference were varied by a further Ministerial Order of 15th July 1998 by extending its powers, and in particular deleting the words "committed on or after the 20th June 1985" from paragraph 5 quoted above.

7. Section 1 of the Tribunals of Enquiry (Evidence) Act 1921 authorises the setting up of a Tribunal of Inquiry where both Houses of the Oireachtas resolve "that it is expedient that a Tribunal be established for enquiring into a definite matter described in the resolution as of urgent public importance". The resolutions of the Dail and Seanad in the present case so described the matters to be enquired into. The sub-section then gives to the Tribunal the same powers as are vested in the High Court in respect of enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise and compelling the production of documents. Section 1 subsection (2) which is inserted by the 1979 Act, providesinter alia:-

"If a person:-

(b) being in attendance as a witness refuses to take an oath or to make an affirmation when legally required by the Tribunal to do so, or to produce any documents (which words shall be construed in this sub-section and in sub-section (1) of this section as including things) in his power or control legally required by the Tribunal to be produced by him, or to answer any question to which the Tribunal may legally require an answer

that person shall be guilty of an offence."

8. Section 4 of the 1979 Act further purports to give very wide powers to the Tribunal by providing:-

"A Tribunal may make such Order as it considers necessary for the purposes of its functions, and it shall have, in relation to their making all such powers, rights and privileges as are vested in the High Court or a Judge of that Court in respect of the making of Orders".

9. Finally Section 4 of the Tribunals of Inquiry (Evidence) Amendment Act 1997 provides:-

"Where a person fails or refuses to comply with or disobeys an Order of a Tribunal, the High Court may, on application to it in a summary manner in that behalf by the Tribunal, order the person to comply with the Order and make such other Order as it considers necessary and just to enable the Order to have full effect."

THE SUMMONS IN THIS CASE

10. By Orders dated 26th January 1999 and 19th February 1999 the Respondent required Mr George Redmond, the third named notice party herein, to make discovery on oath of all documents in his possession relevant to the subject matter of the Inquiry. Mr Redmond claimed to be unable to comply with this Order because the documents in question had been seized by the CAB. In fact, on 19th February 1999 Mr Redmond was arrested by officers of the CAB at Dublin Airport, and subsequently his house was searched, and certain material and documents were seized by the CAB. Following this claim, the Respondent by letter of 22nd February 1999 requested the CAB to furnish copies of all documents seized from MrRedmond, and sent a consent to this action signed by Mr. Redmond to the CAB. Certain further correspondence took place, and on 30th April 1999 the Respondent made an Order addressed to the Applicant in the following terms:-

"You are hereby commanded to attend at the sitting of the above mentioned Tribunal at the Print Works Building, Lower Castle Yard, Dublin Castle, Dublin 2 on Friday the 16th day of April 1999 at 10 a.m. and there and then to produce and furnish to the Tribunal copies of the document set out in the schedule attached hereto."

11. On 16th April the Applicant duly attended a public sitting of the Tribunal and gave evidence under oath that he claimed privilege in respect of the furnishing of the documents. The matter was adjourned until 19th April to allow legal argument to take place, and on that date the Tribunal heard Counsel for the Applicant, Counsel for theTribuinal and Counsel for the Attorney General acting in the public interest. The Applicant claimed privilege over the documentation and material which was the subject matter of the Order of the Tribunal on the grounds that:-

"It is material obtained for the detection of crime and for the purposes of the statutory remit of the Criminal Assets Bureau. To furnish it would almost inevitably prejudice both the investigations and the fair trial of any person or persons who may be prosecuted or otherwise proceeded against from the said investigations."

12. When asked by the sole member of the Tribunal for the basis of the claim of privilege, the Applicant refused to answer any further questions on the grounds that he was advised that it might or would compromise any claim of privilege. On 19th April the Tribunal heard detailed legal submissions from the various parties concerned. In particular, counsel for the Applicant stated that he had specific instructions not to argue for privilege under any heading, but that his submission was that it was a matter for the Courts and not for the Tribunal to determine whether there is a privilege or not. This was the sole extent of the arguments made on behalf of the Applicant.

13. On 24th April the sole member of the Tribunal gave a reasoned decision in which he rejected the argument that the Tribunal could not determine the issue of privilege, and further stated that he was satisfied that the Order was properly made and that no adequate factual or legal basis had been advanced by the CAB in support of its claim of privilege.

THE RELIEF CLAIMED

14. By Order of 4th May 1999 Geoghegan J. gave the Applicant leave to apply for the following reliefs:-

1. An Order of Prohibition directed against the Respondent herein prohibiting him from taking any further steps to require the Applicant to produce or furnish documents pursuant to Summons issued by Order of the Respondent on the 13th day of April 1999 and a decision of the Respondent made on the 23rd day of April 1999 rejecting the Applicant's claim of privilege in respect of the furnishing of the said documents.

2. An Order or Orders of Certiorari quashing the said decision of the 23rd day of April 1999 and/or the Summons of the 19th day of April 1999 as may be appropriate.

3. A declaration that the decision of the Respondent made on the 23rd day of April 1999 was made ultra vires and in excess of the powers of the Respondent.

4. A declaration that the decision of the Respondent made on the 23rd day of April 1999 was made in breach of the provisions of the Constitution of Ireland 1937 and in particular of Article 34.1 thereof.

5. A declaration that the decision of the Respondent made on the 23rd day of April 1999 is null, void and of no legal effect by virtue of having been made in breach of the principles of natural and constitutional justice and in particular in breach of the principle of nemo judex in causa sua.

6. A declaration that the furnishing of the said documents of which the Respondent requires production is covered by the privilege claimed by the Applicant or alternatively an Order of Mandamus directing the Respondent to invoke the statutory procedures provided for by Section 4 of the Tribunals of Enquiry (Evidence) (Amendment) Act 1997 in order to have the issue of the said privilege determined by this Honourable Court.

7. Such further or other orders as this Honourable Court seems fit and just.

8. An Order providing for the costs of these proceedings."

THE STATUS OF THE CAB AND OF THE TRIBUNAL

15. A large number of cases have been quoted to me dealing with the question of privilege. However, I think this case is unique because of the nature of the respective bodies concerned. Their relationship, and the relationship of each of them to the Oireachtas and the Courts is of primary importance.

16. The CAB is a creature of Statute, it is not a branch of An Garda Siochana. It was set up by the Oireachtas as a body corporate primary for the purpose of ensuring that persons should not benefit from any assets acquired by them from any criminal activity. It is given power to take all necessary actions in relation to seizing and securing assets derived from criminal activity, certain powers to ensure that the proceeds of such activity are subject to tax, and also in relation to the Social Welfare Acts. However, it is not a prosecuting body, and is not a police authority. It is an investigating authority which, having investigated and used its not inconsiderable powers of investigation, then applies to the Court for assistance in enforcing its functions.

17. The Oireachtas, in setting up the CAB, clearly believed that it was necessary in the public interest to establish a body which was independent of the Garda Siochana, and which would act in an investigative manner. However, I do not think it is the same as An Garda Siochana, which investigates with an aim to prosecuting persons for offences. The CAB investigates for the purpose of securing assets which have been acquired as a result of criminal activities and indeed ultimately paying those assets over the State,

18. The Tribunal is also in one sense a creature of Statute, but it would be more accurately described as an arm of the Legislature. It is not established by an Act of the Oireachtas, but by separate resolutions of each House of the Oireachtas and it does not require Presidential consent. Many of its powers, however, do derive from Statute, including those at issue in this case. It is an instrument of the Oireachtas whereby the Oireachtas can obtain factual information on matters of urgent public importance, in this case in relation to certain allegations of corruption in connection with the planning process.

19. Thus the two bodies have been established by the Oireachtas largely as investigative bodies, and at present they are investigating similar matters which investigations are running in parallel. There is no doubt that both investigations are being carried out in the public interest. Unfortunately, the Oireachtas did not legislate for the priorities of such bodies to information. The problems which arise are due to the fact that the Oireachtas clearly intended on the one hand that information obtained by the CAB should be confidential, and on the other hand that the Tribunal should have access to all relevant information.

THE APPLICANT'S ARGUMENTS

20. The Applicant submits that only a Court can determine the completing claims of disclosure and non-disclosure. He argues that a claim for privilege is part of the administration of justice, and therefore such a claim can only be determined in the Courts. He also points out that, while the Tribunal possesses powers similar to those of a High Court Judge under the Tribunals of Enquiry (Evidence) Acts, it is not acting as a Judge, and is not part of the administration of justice through the Courts.

21. The Applicant also points to two statutory provisions which may assist its case . It points to Section 8(7) of the Criminal Assets Bureau Act 1996, whereby officers of the Bureau may not disclose documents in their possession and argues that that can only beoverwridden by an Order of the Court. On the other hand he also points to Section 4 of the Tribunals of Inquiry (Amendment) Act 1997 which permits the Tribunal to apply to the High Court in a summary manner to order a person to comply with the Tribunal's Order and says that this was the procedure which ought to have been followed in the present case.

22. He refers to a passage from re Kevin O'Kelly (1974) 108 ILTR 97, which was quoted with approval by McCarthy J. in Ambiorix v Minister for the Environment (1992) 1 IR 277 which reads as follow:-

"As was pointed out in that case (Murphy v Dublin Corporation), there may be occasions when different aspects of the public interests may require a resolution of a conflict of interests which may be involved in the disclosure or non-disclosure of evidence, but if there be such a conflict, then the sole power of resolving it resides in the Courts."

23. He also relies on the quotation from the judgment of Walsh J. in Murphy v Dublin Corporation (1972) IR 215 at page 233 where he said:-

"The present claim of privilege is that in a civil action, the executive organ of Government may by its own judgment withhold relevant evidence from the organ of Government charged with the administration of justice and engaged in the determination of the rights of litigants and that this may be done when the claim of privilege is made on either or both of the grounds already mentioned.

Under the Constitution, the administration of justice is committed solely to the judiciary in the exercise of their powers in the Courts set up under the Constitution. Power to compel the attendances of witnesses and the production of evidence is an inherent part of the judicial power of Government of the State and is the ultimate safeguard of justice in the State. The proper exercise of the functions of the three powers of Government set up under the Constitution, namely the Legislative, the Executive and the Judicial, is in the public interest. There may be occasions when the different aspects of the public interest "pull in contrary directions" to use the words of Lord MorrisBorth-y-Gest in Conway v Rimmer. If the conflict arises during the exercise of the judicial power, then in my view, it is the judicial power which will decide which public interest shall prevail."

24. In the same case, Walsh J. said:-

"It is, however, impossible for a judicial power in the proper exercise of its functions, to permit any other body or power to decide for it whether or not a document will be disclosed or produced. In the last resort, the decision lies with the Courts so long as they have seisin of the case."

25. It should be noted, however, that these comments were all made in the context of a civil act between litigants before the Courts.

ARGUMENTS OF THE RESPONDENT

26. The Respondent argues that under its Terms of Reference the Tribunal is required by the Oireachtas to enquire fully into all matters referred to, and therefore he has in fact a statutory duty to obtain the relevant evidence, and that his duties or powers in this regard are not in any way curtailed by any statutory provision. He also argues that the authorities would appear to support an argument that an issue of privilege can only be decided by the body which hasseisin of the dispute. He points to Murphy v Dublin Corporation (1972) IR 229 where it was held as quoted above that:-

"In the last resort the decision lies with the Courts so long as they have seisin of the case".

and also that:-

"If the conflict arises during the exercise of the judicial power, then in my view, it is the judicial power which will decide which public interest shall prevail".

27. He also points to Nolan v. Irish Land Commission (1981) IR 23 where it was held that a claim of privilege should be determined by the lay commissioners before whom the proceedings are pending.

28. I also heard very helpful submissions on behalf of the Director of Public Prosecutions and on behalf of the Attorney General, acting in the public interest. While I do not propose to set out their submissions in detail, this is not intended in any way to be disrespectful to them and in fact I have found these submissions to be very helpful.

CONCLUSIONS ON TRIBUNAL'S POWERS

29. I refer to the submissions of all parties relating to the issue of privilege as it arises on the facts of the present case. However, at this stage I am only considering whether the decision on privilege should be made by the Tribunal or by the Courts, and I am not considering what that decision should be.

30. In my view the problem raised before me is unique. There are two bodies, both charged by the Oireachtas with carrying out investigations in the public interest. I would reject the argument that this is a breach of the maxim nemo judex in causa sua, because this is not a dispute between two parties to litigation, but rather between parties holding what unfortunately have become competing inquiries. The Respondent is not a party to litigation, and he has not got a "causa". He is neither a litigant nor is he adjudicating on a dispute inter partes. He is carrying out an investigation on behalf of the Oireachtas, and if he is asked to decide on the question of privilege, his function is to decide on this question, not as between the interests of competing parties, but in the public interest. The cases quoted which relate to the issue of privilege being a matter for the Courts all relate to cases which are pending before the Courts.

31. Under Section 1 of the 1921 Act the Respondent is given "all such powers, rights, and privileges as are vested in the High Court....on the occasion of an action in respect of....the compelling of the production of documents". The power of the High Court on the occasion of an action in relation to the compelling of the production of documents includes the power to determine whether those documents are privileged. I think this gives the Respondent the statutory power to make such a ruling in the course of the inquiry.

32. It has been suggested that Section 4 of the 1997 Act should have been used by the Respondent. However, I do not think this was the purpose of Section 4 at all. It is an enforcement section, not a power to refer problems to the Courts. It is also relevant that the Tribunal of Inquiry (Evidence) Acts do not give any right of appeal to the Courts to any dissatisfied party, but of course this must follow from the nature of the Tribunal, which is investigative only, and does not make any judicial findings.

33. That is not to say that decisions of the Tribunal cannot be reviewed. They are of course open to judicial review, but such review is concerned, not with whether the decision was correct or incorrect, but rather with how that decision was reached. In the present case, the Applicant was given a right to make submissions, which he exercised to a limited degree only, as, in effect, the Applicant took a preliminary point on jurisdiction. The sole member took time to consider these submissions. There is nothing to suggest that he did not consider them properly or fairly, and therefore, in so far as he ruled that he has got jurisdiction, that ruling must stand, as having been properly reached.

34. If the Tribunal could not rule on matters of evidence, and this is really a matter of evidence, as they arise in the course of the Tribunal's hearings, it would make the work of the Tribunal almost impossible. If the Applicant is correct, then any person appearing before the Tribunal who is dissatisfied with a ruling on evidence could come to the High Court and claim that the Tribunal was acting as a Judge in its own cause in making that ruling, and have it set aside. There could be endless delays and enormous expense incurred in what theOireachtas has determined to be a matter of urgent public interest. This could not possibly have been intended by the Oireachtas when the Tribunal was set up. The only basis upon which a Tribunal of this nature can operate is that it may make rulings as they arise, and that is the reason why the specific powers were given to the Tribunal both under Section 1 of the 1921 Act and Section 4 of the 1979 Act.

35. Accordingly, I would hold that the Tribunal has the jurisdiction to make a decision on whether documents are privileged. However, having read the transcript of what transpired in the present case, when the Applicant specifically restricted his arguments to the question of jurisdiction, it seems to me that he did not have an opportunity to put forward thesubstantive arguments in favour of privilege. Of course, that he did not do so was a matter of his own choosing, but I think he was entitled to take the course he took, and it follows that the decision of the Tribunal as to privilege was made without hearing the full arguments of the Applicant. It should also be noted that the Applicant declined to give any evidence as to a factual background for his contentions, and again I think he must be given an opportunity to do so. Were it otherwise, I think that the procedures of the Tribunal could be said to offend natural justice.

36. Accordingly, I would set aside the decision of the Tribunal in so far as it ruled that the documents are not privileged, but I would uphold the decision that the Tribunal itself has jurisdiction to determine the dispute. Accordingly, the matter should be reconsidered by the Tribunal having heard further arguments, and if necessary, evidence from the parties. I will discuss the form of the Order with Counsel.