High Court of Ireland Decisions

 
THE HIGH COURT JUDICIAL REVIEW

[2002 No. 181 J.R.]

Between:

JASON BRADY

Applicant

-and- DISTRICT JUDGE GERARD HAUGHTON, THE COMMISSIONER OF AN GARDA SÍOCHÁNA and THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent.

(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr. Justice Aindrias Ó Caoimh delivered 22^nd July, 2003.

This is an application for an order quashing the order of the first respondent of the 25^th March, 2002 sitting at the District Court No. 50 in purported compliance with the terms of s.51 of the Criminal Justice Act, 1994 concerning certain items of clothing, the property of the applicant, and ancillary relief. The matter comes before this Court pursuant to an order of this Court (White J.) made the 2^nd December 2002 whereby the applicant was given leave to seek the following relief:

1. Leave to seek judicial review by way of certiorari quashing the order of the first named respondent herein made on the 25^th March, 2002 sitting at District Court No. 50 in purported compliance with the terms of s.51 of the Criminal Justice Act 1994 concerning certain items of clothing the sole property of the applicant herein, photographs, fingerprints and confidential medical records, of the applicant.

2. An order by way of interim relief restraining the second named and third named respondents their servants and agents from dealing in any way with the said property, photographs, fingerprints and confidential medical records of the applicant now in the possession of both or either of them that might result in the said property being removed from or made [*2] unamenable to the jurisdiction of the District Court pending further order of this Court.

3. Leave to seek by way of further interim relief an order directing the second named and third named respondents their servants and agents to refrain from interference with and to retain safely and in their care and custody and without any interference whatsoever the said photographs, fingerprints and confidential medical records of the applicant, clothing, the property of the applicant and the subject matter of the said order of the first named respondent herein made the 25^th March, 2002.

4. An order providing for the costs of these proceedings.

5. Judicial review by way of a declaration that s.51 of the Criminal Justice Act 1994 is repugnant to the Constitution.

6. Judicial review by way of a declaration that the order of the first named respondent herein made on the 25^th March, 2002 sitting at District Court No. 50 in purported compliance with the terms of s.51 of the Criminal Justice Act 1994 failed to respect personal rights of the Applicant guaranteed by Article 40 of this Constitution.

7. Judicial review by way of declaration that proceedings before the District Court pursuant to s.51 of the Criminal Justice Act are judicial proceedings and accordingly subject to the constitutional imperatives and safeguards which inhere thereby.

8. Judicial review by way of a declaration that the seeking and procuring of the said order in the circumstances that obtained by the second and third named respondents, in so far as they acted in concert, failed to respect the constitutional rights of the applicant.

9. Judicial review by way of an order prohibiting further conduct of the said proceedings until further order of the Court.

10. Damages.

The grounds upon which this relief is sought are as follows:

1. The first named respondent's order was made in the absence of the applicant and without any or any due notice to him or his legal advisers.

2. The said order was made in respect of items of clothing which the respondents each well knew were the subject of a Police Property [*3] application pursuant to the Police Property Act, 1897 to be made to the District Court on the 26^th March, 2002, due notice of the said application having been given by the applicant to the second named respondent and the relevant District Court Clerk on or about the 5^th March, 2002.

3. The first named respondent's order was made in the absence of the applicant, the requirement of fair procedures and in particular the absence of any due notice to the applicant or his legal representatives.

4. In the circumstances the order made was a deliberate and conscious violation of the applicant's constitutional rights to fair procedures and constitutional rights in relation to private property and to fair procedures.

5. The first named respondent did not act in a judicial manner, although purporting to do so, in permitting the application to proceed in the absence of notice to the applicant.

6. The said order was sought by or on behalf of the second or third named respondents or either of them when both of them or one of them had previously been put on express notice that the applicant was in the course of applying to the District Court for a remedy provided to him by statute in relation to the said clothing and when both of them or one of them were aware that the grant of the said order would inhibit the applicant and frustrate him in his approach to the District Court the said respondent failed to respect the constitutional rights of the applicant and was a perversion of the course of justice.

7. The proceedings and subsequent order of the first named respondent herein made on the 25^th March, 2002 sitting at District Court No.50 pursuant to s.51 of the Criminal Justice Act 1994 are breaches of the rules of natural and constitutional justice and the principles of Audi alterem partem and Nemo tenetur se ipsum accusatare.

8. The proceedings and subsequent order of the first named respondent herein made on the 25^th March, 2002 sitting at District Court No. 50 pursuant to s. 51 of the Criminal Justice Act 1994 are breaches of the applicant's right to private property, to privacy, to bodily integrity, to trial in due course of law, the right to prior notice and legal advice and representation in relation to judicial proceedings, to his liberty and to justice and fair procedures. [*4]

9. In so far as the said s.51 provides a means to alienate in whole or in part to other States the conduct or control of security and home affairs, namely the maintenance and promotion of criminal justice, it is inconsistent the Constitution.

10. In all the circumstances, the said investigation is in breach of the applicant's constitutional rights.

The applicant complains that the order of the first respondent was made in his absence and without any notice to him or his legal advisors. The applicant also complains that the order was made in circumstances where he had pending in the District Court a Police Property Act application due to be made on the following date, the 26^th March, 2002 in circumstances where it is stated that notice of this application was given to the second respondent and the District Court on or about the 5^th March, 2002.

In these circumstances it is pleaded that the impugned order was made in deliberate and conscious violation of the applicant's constitutional rights to fair procedures and contrary to his rights to private property and to fair procedures. It is complained that the second respondent did not act in a judicial manner, although purporting to do so, in permitting the application to proceed in the absence of notice to the applicant.

The application is grounded upon an affidavit of the applicant's solicitor who deposes to the fact that the applicant is currently serving a prison sentence at Mountjoy Prison. It is stated that certain items of the plaintiff's clothing were seized and retained at Ballymun Garda Station when he was detained there in the month of December, 2001, apparently in the context of a criminal investigation within the State. It is stated by the applicant's solicitor that he is instructed that the applicant had been in England prior to that date and returned voluntarily to Ireland in December, 2001.

The case is made that on the 25^th January, 2002 the applicant was asked whether he agreed to give items of his clothing and other samples of forensic material, including a DNA sample, fingerprints, and a blood sample together with permission for photographs to be taken and he was asked whether he wished to speak to members of the West Midlands Police Force. It appears that the applicant pleaded guilty in the District Court and was remanded in custody to the 15^th April, 2002 for sentence and that at that time he indicated his intention to make a Police Property Application in [*5] relation to his clothing. He apparently completed an application form on the 28^th January, 2002 and it appears that a written notice of application was served on the Gardaí at Ballymun on or about the 5^th March, 2002. This was served on the District Court Clerk on the following day and was listed for hearing on the 26^th March, 2002.

It appears that the applicant's sister and brother in law were summoned to appear at District Court 50 on the 25^th March, 2002 to answer questions concerning the applicant.

It appears on that day that an application was made before the first respondent under s. 51 of the Criminal Justice Act, 1994. The applicant contends that an order was made at that time by the first respondent.

The applicant's solicitor has exhibited the witness summons served on Anthony McDonagh showing that the investigation in question being carried out by officers of the West Midlands Police is in respect of the offence of murder, causing grievous bodily harm and burglary suspected of having been committed by the applicant. This summons is entitled 'The District Court' and in the matter of the Criminal Justice Act, 1994 Part VII and s.51 thereof and indicates that the respondent Minister has nominated a judge of the District Court to receive evidence to which a request made by the Crown Prosecution Service, West Midlands, Birmingham.

The applicant's solicitor has sworn a supplemental affidavit in which he indicates that on the 11^th April, 2002 on the adjourned date of the applicant's Police Property Application the President of the District Court was informed that a Mutual Assistance Order which was an oral order had been made and which had not been reduced to writing. In light of this the President directed that pending further order the clothing in question was to remain with the Gardaí.

A Statement of Grounds of Opposition has been filed on behalf of the second and third respondents in which the following grounds are advanced:

1. Part VII of the Criminal Justice Act, 1994 implements into national law the principles of international mutual assistance in criminal matters.

2. S. 51 of the Criminal Justice Act, 1994 incorporates into national law procedure for receipt of evidence in respect of either criminal investigation or a criminal prosecution being carried on outside the State. Section 51 of the Criminal Justice Act, 1994 permits the Minister, subject to the conditions set out in s.51 sub-paras. 1(a) and (b) subject to being satisfied to the matters set [*6] out at s.51 sub-paras 2(a) and (b) to nominate a judge of the District Court to receive evidence to which the letter of request received from a foreign state relates as may appear to the judge of the District Court to be appropriate for the purpose of giving effect to the request.

3. The second schedule to the Act of 1994 sets out in some greater detail powers of the District Judge nominated to hear such evidence to which the request relates, the protection of witnesses and the transmission of evidence.

4. The receipt of evidence by a Judge of the District Court pursuant to s.51 of the Criminal Justice Act, 1994 does not constitute the administration of justice and is an administrative act.

5. The second and third named respondents deny that the applicant was entitled to notice of the application made pursuant to s.51 of the Criminal Justice Act, 1994 in the above matter on the 25^th March, 2002.

6. The second and third named respondents deny that the order of the first named respondent was made and delivered in conscious violation of the applicant's constitutional rights to fair procedures and constitutional rights relating to private property and fair procedures.

7. The second and third named respondents deny that the first named respondent failed to act in a judicial manner.

8. The second and third named respondents assert that the decision to proceed with the application pursuant to s.51 of the Criminal Justice Act, 1994 on the 25^th March, 2002 was made in accordance with the principles of international comity and in pursuance with their obligations thereto.

9. In making the order for the transfer of articles of clothing of the applicant herein, the first named respondent took into account both the provisions of s. 51 of the Criminal Justice Act, 1994 and the Police Property Act, 1897.

[*7]

10. The second and third respondents deny that the application made to the first respondent frustrated and or inhibited the applicant's application pursuant to the Police Property Act, 1897.

11. The second and third respondents deny that the application made by the third respondent to the first respondent pursuant to s.51 of the Criminal Justice Act, 1994 constituted an obstruction or perversion of the course of justice.

12. The second and third respondents assert that the application made by the third respondent to the first respondent pursuant to s.51 of the Criminal Justice Act, 1994 was made pursuant to a properly constituted Request for Mutual Assistance made by the appropriate United Kingdom authority and the said application was carried out in accordance with the provisions of Part VII of the Criminal Justice Act, 1994.

An affidavit sworn by James Clerkin, a civil servant in the Department of Justice, Equality and Law Reform, has been filed on behalf of the second and third respondents. Mr. Clerkin refers to the fact that the Department is the central authority for the receipt of requests in respect of International & Mutual Assistance in criminal matters. He indicates that on or about the 24^th December, 2001, he received a letter of request dated the 21^st December, 2001 for assistance from the Crown Prosecution Service, West Midlands, Birmingham in the United Kingdom, which he exhibits. He indicates that this request was forwarded to the respondent Minister by the National Crime Intelligence Service, Interpol. He indicates that the Minister sought the advices of the offices of the Attorney General and the Chief State Solicitor in respect of the request which were given on the 31^st December, 2001. He says that as of the 2^nd January, 2002 the following had occurred:

(a) The Minister had received from the Crown Prosecution Service an authority which appeared to him to have the function of making requests for mutual assistance in criminal matters a request for assistance in obtaining evidence in the State in connection with a criminal investigation that was being carried out in the United Kingdom, and [*8]

(b) The Minister was satisfied that there existed reasonable grounds for suspecting that an offence(s) under the law of the United Kingdom had been committed and an investigation into that offence(s) was being carried out in the United Kingdom.

Mr. Clerkin indicates that in or around early February, 2002 the Minister formed the view that items 3, 4, 6, 8 and 9 in the request could be proceeded with by way of application pursuant to s. 51 of the Criminal Justice Act, 1994 ('the Act of 1994') and he so informed the Judicial Co-operation United of the United Kingdom Central Authority in Criminal Matters. He indicates that on the 21^st February, 2002 the Crown Prosecution Service expanded upon its earlier request of the 21^st December, 2001. He sought further clarification from the Crown Prosecution Service and indicated on or about the 26^th February, 2002 that the application pursuant to s. 51 of the Act of 1994 was anticipated to go ahead on the 25^th March, 2002. He indicates that between the 15^th and 25^th February, 2002 he obtained a date for the hearing of the s.51 application for the 25^th March, 2002. He indicates that the first respondent was nominated by the Minister to hear the evidence requested by the United Kingdom authorities on the 14^th March, 2002.

Mr. Clerkin indicates that Part VII of the Act of 1994 provides for co-operation between different states in the investigation and prosecution of serious crime. He indicates his belief that it incorporates into Irish law the provisions of the European Convention on Mutual Assistance in Criminal Matters done at Strasbourg in 1959 together with two further international conventions providing for mutual assistance.

He indicates his understanding that Ireland is bound by international convention to execute such requests for assistance to the fullest extent possible. He indicates that both Ireland and the United Kingdom included in their legislation incorporating international mutual assistance provisions that articles gathered in such request can only be used for the purposes specified unless the Minister consents otherwise and that the items gathered would be returned when they are no longer required for the purposes of the request. He says that he became aware of the applicant's application pursuant to the Police Property Act, 1897 on the 19^th March, 2002. [*9]

Mr. Clerkin makes reference to the transcript of the hearing before the second respondent and indicates by reference to same that at the time of the s. 51 application the Garda Commissioner had been furnished with a copy of the request from the United Kingdom authorities and the fact of the Police Property Act application to be made on the 26^th March, 2002 was brought specifically to the attention of Judge Haughton.

By order of the 2^nd December, 2002 the applicant was given liberty to amend his statement grounding his application herein.

Submissions:

On behalf of the applicant it is submitted by Mr. Maurice Gaffney S.C. that the matters addressed by the respondent fall within the concept of the administration of justice and concern more than a mere administrative procedure. It is submitted that the procedures in any event attract the requirements of natural and constitutional justice, involving as they do the concept of fair procedures.

It is submitted that insofar as the application in question to the respondent was made in the absence of notice to the applicant and as the decision of the respondent had a profound effect on important interests and rights of the applicant, it was in breach of the fair procedures required.

It is further submitted that as the procedure adopted under s.51 operated to frustrate the applicant's application under the Police Property Act, 1897 it amounted to an abuse of process. Further it is submitted that the proceedings were in violation of the applicant's rights to private property, bodily integrity, trial in due course of law and notice of the right to obtain legal representation.

Counsel queries why the application under s.51 should pre-empt the application under the Police Property Act.

Counsel also takes issue with the categorisation of the instant proceedings as administrative. In this regard counsel refers to the judgment of Kenny J. in McDonald v. Bord na gCon [1965] I.R. 217 at p. 230 where the learned trial judge stated:

"It seems to me that the administration of justice has these characteristic features:

1, a dispute or controversy as to the existence of legal rights or a violation of the law; [*10]

2, The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

3, The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;

4, The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;

5, The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country."

With regard to the provisions of s.51 of the Act of 1994, counsel points out that there is no obligation that there be correspondence of offences under Irish law and that of the requesting state. It is submitted that an examination of the Act shows that there is no provision of a sanction for failure to comply with the Act and there is no provision for the matter being dealt with if in contempt of court.

In regard to whether the proceedings are to be considered as judicial as opposed to administrative proceedings, counsel refers to the fact that they are before a judge of the District Court in a courtroom of the District Court in the presence of a clerk of the District Court. It is submitted that a witness may be threatened if he or she refuses to comply with a request to give evidence. It is thus submitted that the proceedings have all the hallmarks of judicial proceedings.

With regard to the procedures followed, counsel refers to the terms of the request from the English authorities which conclude with a statement that the applicant may only be invited to co-operate in the procedures set out and that he should be given an opportunity of seeking legal advice from a lawyer of his choice who can advise him of the position in both English and Irish criminal jurisdictions insofar as they are applicable.

Counsel refers to the case of Salinas de Gortari v. Smithwick (No.2)[2000] 2 IR 553 where at p. 566 McGuinness J. stated, inter alia, as follows:

"As I have already said, I have no doubt that the intention of the Oireachtas was that a witness appearing before the nominated judge of the District Court under this statutory scheme should be compelled to answer the questions put to him save in the exceptional circumstances set out in para. 3. However, no explicit provision has been made either to create an offence or to provide a [*11] penalty in the event of failure to answer. Counsel for the notice party argues that these lacunae may be overcome through the purposive interpretation of the statute. This court has previously accepted the principle of purposive interpretation, see for example Quinlivan v. Governor of Portlaoise Prison [1998] 2 IR 113 and Mullins v. Harnett [1998] 4 IR 426, but the principle that any statute which imposes or may impose penal sanctions must be strictly interpreted is also well established. This latter principle must always have high priority in the interpretation of any statute.

Pararaph 1 of the second schedule provides that the judge shall have the like powers for securing the attendance of a witness as the District Court has for the purpose of any other proceedings before that court. This may be equated with the first subs. set out in s.13 of the Petty Sessions (Ireland) Act, 1851. It is notable however, that in that section separate and distinct provision is made under subs. 5 for the situation where a witness actually present in court refuses to answer a question. That situation is not covered by the general provision on compelling the attendance of a witness. Section 13(1) deals with compelling attendance; subs. 5 deals with compelling a witness to answer. It seems to me, therefore, that in the statutory scheme set out in s.51 of the Act of 1994, para. 1 of the second schedule cannot of itself be held to import a serious criminal offence and a concomitant penal sanction where no specific provision is made for either such offence or such sanction in the Act itself or in the schedule."

Counsel stresses that under the terms of the Act of 1994 there is no need for correspondence of offences and the Minister is at large in relation to acceding to a request as the words of the Act "if he thinks fit" give a complete discretion to the Minister. It is submitted that an essential requirement is that where depositions are to be taken, that the accused be present. It is submitted that if the European Convention on Mutual Assistance in Criminal Matters done at Strasbourg 20^th April, 1959 (hereinafter referred to as 'the Convention') were made part of the domestic law that provision might be made in respect of the suspect. Counsel submits that the law should provide for notice and an opportunity for the suspect to be in court and points out that while the Act is silent, it does not preclude the suspect being given notice. [*12]

Counsel indicates that the application is to deal with the applicant's property without notice to him. Counsel submits that there is a perception of compellability in the procedures.

It is submitted that the Act of 1994 is contrary to the Constitution as there is no restraint on the exercise of the powers under the Act and there is no mutuality required and no opportunity for the applicant to object to the procedures being followed.

While counsel contends that the powers are judicial in nature, it is submitted that even if they are to be held to be administrative in nature that they are nevertheless flawed.

In light of the entitlement of a suspect who is detained to have the right of access to a lawyer as recognised in The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73, it is submitted that a suspect in the position of the applicant should have the right to have access to a lawyer. In this regard counsel refers to a purported certified copy order in the matter dated the 16^th May, 2002.

It is submitted that the unconstitutionality arises on a closer examination of the section at issue. It is submitted that at first it might appear that the application under s. 51 may ostensibly take place in accordance with law. It is submitted that if a power is given without any restraint it is entitled to be exercised as such. It is submitted that where the Act is silent it is defective. It is submitted that the evidence sought may be used in a third state in circumstances where the rights of the suspect might be infringed.

Counsel submits that a number of the protections to be found in s. 55 (3) and s. 55 (10) are not present in the context of an application made under s. 51.

On behalf of the Minister and the Attorney General it is submitted that the applicant's case has proceeded on the basis of a fundamental misconception as to the procedure under the Act of 1994. It is submitted that the procedures under s.51 are sui generis to enable the State to comply with its international obligations. Counsel submits that Part VII of the Act of 1994 provides for procedures in this jurisdiction to permit the State to implement its obligations pursuant to the Convention and the additional protocol on Mutual Assistance in Criminal Matters done at Strasbourg in 1978.

Counsel indicates that pursuant to the scheme of mutual assistance and s.51 of the Act of 1994, a request is made by a foreign authority to the respondent Minister to [*13] seek assistance and/or evidence in Ireland in connection either with criminal proceedings which have been instituted or a criminal investigation being carried out in the requesting state. It is submitted that once the Minister has satisfied himself in this regard he has a discretion pursuant to s.51 to nominate a judge of the District Court to receive such evidence to which the request relates.

It is submitted that the Minister must be satisfied that evidence transferred will only be used for the purpose specified in the request and that when evidence is no longer required it will be returned to this jurisdiction.

It is submitted that the intention of the Convention is indicated at Article 1 of the Convention whereby the contracting parties undertook to afford to each other "the widest measure of mutual assistance in proceedings in respect of offences, the punishment of which, at the time of request for assistance falls within the jurisdiction of the judicial authorities of the requesting party."

Counsel refers to Salinas de Gortari v. Smithwick (No.2) [2000] 2 IR 553 in support of his submission that the application under s. 51 is not a trial and is not the administration of justice. As held by McGuinness J. in that case, the procedure under s. 51 is sui generis. It is neither a trial nor a police investigation procedure prior to charge under the Criminal Justice Act, 1984 nor is it the taking of depositions under the Criminal Procedure Act, 1967. The procedure is one governed by statute and must be considered within the bounds of the statute.

It is submitted that as a criminal investigation has taken place and as the requesting state seeks evidence for the purpose of that investigation, the Act of 1994 does not provide that a person in the position of the applicant has a right to notice of the hearing of such evidence and the transmission of such evidence. It is accepted that if the requesting authority were to seek viva voce evidence from the applicant himself he would not be compellable.

Counsel refers to the evidence of Detective Garda Kevin Daly to the effect that the applicant consented to hand over his clothing and mobile phone at a time when he was at Ballymun Garda Station on the 19^th December, 2001. It is submitted that the affidavit of the applicant's solicitor Patrick Daly indicates that the applicant was not prepared to co-operate fully and refused to speak to members of the West Midlands Police Force.

With regard to the Police Property Act application it is submitted that the same is not the administration of justice but provides a protection to dispose of property. It [*14] is submitted that there is a fundamental misconception inherent in the attempt on behalf of the applicant to rely upon the provisions of the Police Property Act, 1897 as it is in no way designed to provide that a judge of the District Court is to determine rights and liabilities on the basis of an application pursuant to s.1. That provision provides inter alia:

(1) "Where any property has come into the possession of the police in connexion [with their investigation of a suspected offence] . . . , a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.

(2) An order under this section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the right shall cease."

It is submitted that from a reading of the section it is evident that the purpose of the section is to facilitate the disposal of property which the Garda Síochána does not require or need and in relation to which there is either a dispute as to the ownership or in relation to which no owner has come forward. It is submitted that any order made by a judge of the District Court pursuant to s.1 is not determinative of ownership since it is only pursuant to civil proceedings taken within six months from the date of any such order that such issue has to be determined. It is submitted that an application under the Act cannot permit a judge to cause property to be removed from the possession of the Gardaí if they require same for the purposes of criminal investigation. [*15]

It is submitted that as it has not been disputed that the items at issue in these proceedings were in the possession of the Gardaí for the purpose of the criminal investigation and which they did not object to being placed in the possession of the West Midlands Police Force in pursuance of the State's obligations under the Convention.

It is submitted that if the application under the Police Property Act had come on for hearing prior to the 25^th March, 2002 the judge before whom the application came would have been bound to have adjourned the matter unless and until it was confirmed by the Gardaí that they no longer had an interest in retaining the items for the purposes of fulfilling their duties, including those of International Mutual Assistance.

Dealing with the procedure under s.51, it is submitted that the applicant has misconceived same insofar as it is contended that the same constitutes the administration of justice. Counsel refers to the judgment of McGuinness J. in Salinas de Gortari v. Smithwick (No.2) [2000] 2 IR 553 where at p. 562 of the report she stated, inter alia, under the heading 'Law and conclusions' as follows:

"Firstly, it is necessary to keep in mind that the proceedings before the respondent in the District Court under s. 51 of the Act of 1994 were not a trial and were not the administration of justice. Secondly, the applicant is not an accused person, either in this jurisdiction or in France.

The procedure in question is indeed, as submitted by counsel for the notice party, sui generis. It is not, I think, valid to compare it either with an actual trial or with the police investigative procedure prior to charge under the Criminal Justice Act, 1984, or indeed with the taking of depositions in the District Court prior to sending an accused person forward for trial on indictment. The s.51 procedure is a procedure governed by statute and must be considered within the bounds of that statute. The rights of the applicant are the rights of a witness, not of an accused, and his position cannot be compared to that of an accused person at a trial who is under no compulsion to give evidence at all. His position is much closer to that of the defendant in the case of Keegan v. De Burca [1973] I.R. 223, which was opened to me by counsel in the course of argument, but even that case deals with the common law applied in the context of the High Court, whereas in the instant case the question is of a specific statutory procedure in the context of the District Court." [*16]

Counsel lays stress on the words " a judge of the District Court" appearing in s. 51 as it is submitted that the application is not in fact made to the District Court but to a persona designate who is a designated judge of the District Court. It is submitted that despite the appearances the application in question was not made to the District Court.

Counsel further relies upon the judgment of Denham J. in Salinas de Gortari v. Smithwick [1999] 4 IR 223 where at p. 227 she stated:

"The hearing before Judge Smithwick is a gathering of evidence for a juge d'instruction in France. It is not the administration of justice nor is it any part of any criminal trial in Ireland. It is not the administration of justice in Ireland."

Counsel refers to the evidence whereby the fact of the forthcoming Police Property Act application was on the date of the application before Judge Haughton made known to him and in circumstances where he was disposed to act under s. 51 on the basis that the items sought were reasonably required for the investigation in the United Kingdom.

With regard to the property in question, counsel refers to the judgment of Palles C.B. in Dillon v. O'Brien and Davies (1887) 20 L.R.Ir. 300 where he stated:

"But in the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of trial."

Counsel refers to the judgment of Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71 where it was indicated that the 'interest of the State' amounts also to the duty to preserve 'material' evidence.

Counsel further refers to the judgment of O'Keeffe J. in the Supreme Court decision in Jennings v. Quinn [1968] I.R. 305 where he stated at pp. 310-311, inter alia, as follows:

"The question as to the extent to which property, coming into the hands of the police at the time of a lawful arrest, may be sent out of the jurisdiction of this Court and into another jurisdiction appears not to have arisen for consideration either in this country or in England in any case to which reference was made, and [*17] accordingly it becomes necessary to determine the matter as one arising now for the first time. It appears to me that the public interest also requires that property, which the police might lawfully retain for use as material evidence in a charge against a person arrested if that charge were brought against him within the jurisdiction, may also be retained lawfully by them for the purpose of sending it, and that they may send it, into another jurisdiction where a charge on which that property is material evidence has been laid against the person arrested, at least in cases where the lawful arrest of the person within the jurisdiction was made in aid of the jurisdiction of the country in which the charge is laid. For this reason I would be prepared to hold that the defendants might lawfully retain in their possession any of the property which has come into their possession at the time of, or shortly after, the arrest of the plaintiff and which is required as material evidence on a charge laid against the plaintiff in the United Kingdom."

Counsel concedes that the facts of the instant case are not the same as those in that case, but it is submitted that the Supreme Court accepted in that case in similar circumstances the legitimacy of the transfer of property of an individual to the authorities in the United Kingdom.

Later in the course of his judgment in Jennings v. Quinn, O'Keeffe J. stated:

"In my opinion this Court ought not to permit the property to be removed out of the jurisdiction of the Court, except at the instance of the plaintiff, until his claim to possession of it is determined or until it is established that the property is required as material evidence on a charge brought against the plaintiff, or some other person, in the United Kingdom."

It is further submitted by counsel that in light of the enactment of the Act of 1994 subsequent to the decision in Jennings v. Quinn that the reasoning contained therein should properly be extended to the circumstances, such as the instant case where the police in the United Kingdom have established to the satisfaction of the Central Authority for Mutual Assistance that the substantial case against the applicant in respect of charges including murder is being prepared.

Counsel points out that as regards the material in question the authorities in the United Kingdom will require the consent of the Minister to use same in evidence. Accordingly, it is submitted that the concerns on behalf of the applicant [*18] that the material could be used in evidence against him without further application are groundless.

Counsel submits that the respondent judge is a person nominated by the Minister. His determination was that the evidence was appropriate to give effect to the request.

With regard to the submissions of counsel for the applicant that fair procedures have to be grafted onto the procedures set forth in s.51, counsel submits that it is necessary to examine the procedures in question which are limited to determining whether it is appropriate that the material requested be provided.

Counsel refers to the fact that the applicant may be a putative accused who wishes to filter information being given to the investigating authorities in England.

Counsel refers to the fact that the judge of the District Court designated under the Act of 1994 has no power to compel a witness to answer questions put to the witness. It is submitted that even outside the terms of the Act of 1994 police in various states may co-operate and exchange information.

In reply, counsel for the applicant submits that the submissions advanced on behalf of the second and third respondents have failed to address the central point, namely whether the applicant is entitled to be heard. It is submitted that the clothing in question given by the applicant was given on the basis of an understanding that the same was wanted in connection with the investigation of crime in this jurisdiction. It is submitted that all the applicant required was a right to be heard in relation to his own property. It is submitted that his application to the District Court under the Police Property Act has been frustrated. It is submitted that the first respondent made an order rendering useless the application to be made the following day. It is submitted that as a matter of fact the property in question could have been transmitted before the application was made to the District Court.

While counsel for the respondents purports to rely upon the decision in McDonald v. Bord na gCon [1965] I.R. 217 it is submitted that not all the incidents of the administration of justice referred to by Kenny J. in that case are necessary before a matter may fall to be considered as the administration of justice.

With regard to the existence of a 'dispute or controversy', the only basis upon which there may have been no dispute before the respondent judge was that the applicant was not heard. With regard to 'the determination or ascertainment of the rights of parties', it is submitted that had the applicant been present he could [*19] have asked that certain evidence not be used. With reference to 'the final determination subject to appeal of legal rights and liabilities' it is submitted there is no appeal provided for in the Act of 1994 and accordingly the determination was one of a final nature that the evidence in question be transmitted. With regard to the enforceability of the decision, the Minister is given the power to enforce same. With regard to whether an order was made, it is submitted that as a matter of fact an order was made in the matter which has the appearance of any order of the District Court. On this basis it is submitted that the proceedings in question have the characteristics of the administration of justice.

While McGuinness J. observed in Salinas de Gortari v. Smithwick (No.2)[2000] 2 IR 553 at p. 559:

"It is common case that the procedure under s. 51 of the Act of 1994, is not 'the administration of justice' as referred to in Article 34 of the Constitution."

It is submitted that the conclusion at the end of p. 562 to the effect that the proceedings before the respondent under s. 51 were not the administration of justice must, in the circumstances be considered to be an obiter dictum.

Counsel submits that he accepts the decision in Jennings v. Quinn [1968] I.R. 305. Counsel observes that the owners of the property in question in that case came into court and were aware of what was happening. Counsel submits that consistent with that case the applicant in this case should he heard.

Counsel refers to the judgment of Walsh J. in East Donegal Co-Operative v. Attorney General [1970] I.R. 317 and in particular to portion thereof at p. 341 where he stated:

"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. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts." [*20]

It is submitted that this court, being bound by that decision, must conclude in favour of the applicant that he was entitled to be heard as the same is necessary in construing the legislation in accordance with the requirements of constitutional justice. On this basis it is submitted that the unrestricted discretion given to the Minister should be judged. It is submitted that the uncontrolled discretion is such as to render the Act in question to be invalid insofar as it is repugnant to the provisions of the Constitution.

Counsel submits that an examination of s. 52 of the Act of 1994 indicates what was possible in the context of providing for control of the power in question.

Counsel submits that evidence obtained can be used in another jurisdiction. It is submitted that the taking of evidence in this jurisdiction can result in the same being used in a trial in another jurisdiction.

With regard to the status of the first respondent, he is either acting as a judge of the District Court or he is not. If not, the evidence in question cannot be used at a trial in another jurisdiction. Counsel contrasts the protections afforded in s. 52 with the absence thereof in s. 51.

In conclusion counsel reiterates that if the proceedings under s. 51 are not the administration of justice they breached the applicant's constitutional rights and furthermore it is submitted that the circumstances illustrate the deficiencies from a constitutional viewpoint of s. 51 and that the same should be condemned as being invalid having regard to the provisions of the constitution.

Conclusions:

Section 51 of the Act of 1994 provides, inter alia, as follows:

51.—(1) This section shall have effect where the Minister receives—

( a ) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or

( b ) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies, [*21]

a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.

     (2) If the Minister is satisfied—

( a ) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and

( b ) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,

he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.

     (3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) ( a ) and (b) of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.

     (4) In this section "evidence" includes documents and other articles.

     (5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request.

     (6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection (2) of this section.

…" [*22]

The Second Schedule to the Act of 1994 reads as follows:

"SECOND SCHEDULE Taking of Evidence for Use Outside the State Securing attendance of witnesses

1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that court.

Power to administer oaths

2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.

Privilege of witnesses

3. (1) A person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give—

( a ) in criminal proceedings in the State, or

( b ) subject to sub-para. (2) of this paragraph, in criminal proceedings in the country or territory from which the request for the evidence has come.

     (2) Sub-para. (1) ( b ) of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving the evidence is conceded by the court, tribunal or authority which made the request.

     (3) Where such a claim made by any person is not conceded as aforesaid, he may (subject to the other provisions of this paragraph) be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court, tribunal or authority which requested it if a court in the country or territory in question, on the matter being referred to it, upholds the claim. [*23]

     (4) Without prejudice to sub-para. (1) of this paragraph, a person shall not be compelled under this Schedule to give any evidence if his doing so would be prejudicial to the security of the State; and a certificate signed by or on behalf of the Minister to the effect that it would be so prejudicial for that person to do so shall be admissible as evidence of that fact.

     (5) Without prejudice to sub-para. (1) of this paragraph, a person shall not be compelled under this Schedule to give any evidence in his capacity as an officer or servant of the State.

     (6) In this paragraph references to giving evidence include references to answering any question and to producing any document or other article and the reference in sub-para. (3) of this paragraph to the transmission of evidence given by a person shall be construed accordingly.

Transmission of evidence

4. (1) The evidence received by the judge shall be furnished to the Minister for transmission to the court, tribunal or authority that made the request.

     (2) If in order to comply with the request it is necessary for the evidence to be accompanied by any certificate, affidavit or other verifying document, the judge shall also furnish for transmission such document of that nature as may be specified in the notice nominating the judge.

     (3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.

Supplementary

5. For the avoidance of doubt it is hereby declared that the Bankers' Books Evidence Act, 1879, applies to the proceedings as it applies to other proceedings before a court. [*24]

6. No order for costs shall be made in the proceedings."

In the first place it is clear from the provisions of sub-s. (2) that the application in question is not made to the District Court but the review of the evidence is carried out by a judge of the District Court who is a persona designata, being a person nominated by the Minister for the purpose of receiving the evidence. From a reading of the second schedule it can be seen that it is not the District Court clerk but the judge himself or herself who is responsible for administering the oath. The section does not envisage an order being made by the judge of the District Court. Accordingly, it is clear that in light of the order produced in evidence by the applicant in the instant case, no such order can have in fact been made and it is clear that counsel for the second and third respondents were unaware of same prior to the hearing of this application. Accordingly, I am satisfied that the 'order' in question should be quashed. This order is entitled with the name of the Director of Public Prosecutions as prosecutor. Furthermore, the order is entitled "Courts Act, 1971, Section 14". It is recited in the 'order' that an order was made to "Hand over all items in Police Property Application other than rings and photo albums, Items to be transferred to investigating authorities including roll of film and fingerprints and photographs of Mr. Brady." This order is clearly misconceived. In the first place the Act of 1994 makes no provision for any order as such to be made. The proceedings are not proceedings before the District Court but the proceedings are, as previously indicated herein, before a judge of the District Court nominated by the Minister to "receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request". In referring to the wording appearing in sub-s. (2) of s. 51, and in light of the provisions of para. 4 (1) of the Second Schedule, the judge of the District Court is required to furnish the same "to the Minister for transmission to the court, tribunal or authority that made the request". If that is what has been done in the instant case I would not be disposed to interfere with same unless I were to conclude on the substance of the case before me in favour of the applicant.

With regard to whether the application before the respondent judge amounts to the administration of justice, I am satisfied having regard to the features of the administration of justice identified by Kenny J. in McDonald v. Bord nag Con [1965] I.R. 217 at p. 230 previously referred to herein that: [*25]

1, the application as provided for in s. 51 of the Act of 1994 did not constitute a dispute or controversy as to the existence of legal rights or a violation of the law;

2, it did not amount to the determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

3, it did not amount to a final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;

4, the application did not involve the enforcement of rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;

5, the proceedings under s. 51 do not involve the making of an order by the District Court which as a matter of history is an order characteristic of Courts in this country.

Accordingly, I conclude that the application under s.51, irrespective of the setting in which it was made to the respondent judge, did not involve the administration of justice. On this basis I am satisfied that there was no requirement for such an application to be made before any court and that it was permissible for the application to be made by a person designated under law to perform the function of receiving evidence and having the same transmitted to the Minister.

In reaching this conclusion I am confirmed in my view by the judgment of Denham J. in Salinas de Gortari v. Smithwick [1999] 4 IR 223 previously referred to herein.

In light of this conclusion I am satisfied that the proceedings before the first respondent did not necessitate the giving of notice to the applicant of the proceedings under s. 51 and I am not satisfied that the applicant has established a right to be heard in the matter. In so ruling I am conscious of the requirements of constitutional justice. However, in light of the nature of the application, I am satisfied that the same did not require in the instant case that the applicant be heard by the first respondent. In reaching this conclusion I am influenced by the decision in Jennings v. Quinn [1968] I.R. 305. It is clear that it is authority for the proposition that at law evidence which may include property lawfully received by the Garda Síochána at the time of a person's arrest may be transmitted out of the jurisdiction in circumstances such as in the instant case where the Minister is satisfied: [*26]

( a ) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and

( b ) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there.

The same is required in circumstances where a request is made for assistance in obtaining evidence in the State in connection with a criminal investigation that is being carried on in that country or territory.

It is clear from the provisions of s. 51 (5) that the Minister is not empowered to nominate a judge under sub-s. (2) thereof unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request. I am satisfied that where as in the instant case the applicant wishes to challenge the proceedings conducted before the nominated judge of the District Court that it is incumbent on the applicant to show that the Minister was not empowered to make the nomination in question by reason of the fact, either that no provision had been made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that might be furnished in response to the request would not, without his consent, be used for any purpose other than that specified in the request. This the applicant has failed to show in the instant case.

I am furthermore satisfied that an application for assistance could be made to the Minister in circumstances where a suspect is detained in the requesting state or in any event may not be in the State. In such circumstances it could not seriously be suggested that the provisions of s. 51 could not be applied until the attendance of the suspect or accused, as the case may be, was secured before the judge of the District Court nominated by the Minister. I am not disposed to hold that the attendance of the suspect or accused is ever required where the procedures of s. 51 are being applied other than in relation to the taking of evidence from the suspect himself or herself. [*27]

With regard to the taking of evidence of a third party referred to in these proceedings, I am satisfied that there was no authority vested in the District Court to issue a warrant or other process for securing the attendance of that witness. However, the power was vested in the nominated judge to secure the attendance by the issue of a summons or other process as is vested in the District Court.

With reference to the Police Property application, I am satisfied that the existence of the application in question was not such as to deprive the Minister of the power to nominate a judge under s. 51 (2) of the Act of 1994 or such as to deprive the respondent judge of the power to assemble the evidence in question pursuant to the request made to the Minister. In this regard it may be that circumstances ordain that the transmission of the property in question should not take place until after the determination of such proceedings. However, no such issue arises in fact in the instant case as the transmission of the property in question has not preceded the hearing of that application.

The relevant provisions of the Act of 1897 provide as follows:

(1) Where any property has come into the possession of the police in connection with any criminal charge … a court of summary jurisdiction may, on application either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or if the owner thereof cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.

(2) An order under this section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of an order for the recovery of the property, but on the expiration of those six months the right shall cease."

While it has been submitted that an application under s. 1 of this Act does not amount to the administration of justice I am satisfied that in the circumstances of this case it is not necessary to decide whether the hearing of an application under the Police Property Act, 1897 amounts to the administration of justice or otherwise.

[*28] In all the circumstances of the case I am satisfied that the applicant's claim that the Act of 1994 and in particular s. 51 thereof is invalid having regard to the provisions of the Constitution must fail. Furthermore, I am satisfied that the applicant has failed to establish entitlement to the further relief sought and accordingly I refuse this application.