Supreme Court of Ireland Decisions

1. This case raises an important point on the position of the right to silence in Irish Law.

2. The appeal is an appeal against the Judgment and Order of Shanley J. made herein on the 13th day of July, 1998.

3. By his said Order the learned trial Judge declared:-

4. In the course of the hearing before this Court Counsel for the Appellants abandoned their appeal against the second declaration quoted above. In the course of their written submissions Counsel had stated that they were only concerned with the rights of natural persons and were not concerned to argue the case for legal persons.

5. The present appeal accordingly is concerned only with the right to silence so far as it affects natural persons. This means, in effect, that the Court

6. On the 30th March, 1998 the High Court, on the application of the Minister for Enterprise and Employment, pursuant to S. 8 (1) of the Companies Act, 1990 appointed the Honourable Mr. John Blayney, a retired Judge of the Supreme Court, and Mr. Thomas Grace, FCA, to be joint Inspectors to investigate and report on the affairs of National Irish Bank Ltd. relating to;

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

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

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

10. The relevant provision of 5.10 s.s. 5 provides that in a case where

11. In his Judgment delivered on the 18th day of June, 1998 Kelly, J. stated:-

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

13. The relevant statutory background to the present case is contained in Sections 10 and 18 of the Companies Act, 1990.

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

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

16. The prosecutor, Mc Carthy, had been duly arrested and interrogated under the provisions of Article 2a He had initially refused to answer questions but,

17. Fitzgibbon, J., in one of the majority Judgments, described the position of the common law rule against self incrimination and the effect of Article 2a of the Constitution of the Irish Free State upon it, as follows-

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

19. The majority in the Court seem also to have been influenced by the provisions of the Bankruptcy Acts and in particular by the construction which had been placed upon them in R. v. Scott 7 Cox, C.C., 164 which had held not only that a bankrupt was bound to answer certain questions even if they tended to incriminate him but also that his answers could be used against him in a

20. This proposition was vigorously rejected by Kennedy, C.J. in his dissenting Judgment. He said (at p.495 of the Report):-

21. Subsequently Section 21(4) of the Bankruptcy Act, 1988 provided that:-

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

23. If however one regards the right to silence as not merely a common law privilege but as a constitutional right, one must ask oneself “What is the extent of it and what limitations can be placed upon it?. Is a confession to be rejected because it was obtained by the application of executive power but to

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

25. The relevant parts of these three constitutional provisions read as follows-

26. In the context of the present case the effect of Article 40.3 is merely to reinforce the other two constitutional guarantees the first of which, as interpreted by this Court, applies to the right to silence generally and the second of which applies to the conduct of a criminal trial.

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

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

29. The powers of Inspectors appointed by the Secretary of State under the British Companies Act, 1985 are broadly similar to the powers of Inspectors appointed by the Court under our Companies Act, 1990. For that reason it is interesting to note that in the Saunders case the European Court of Human Rights in its Judgment dated the 17th December, 1996 at paragraph 67 said that the powers of Inspectors appointed under the British Companies Act, 1985:-

30. Accordingly the Court ‘s sole concern in the present case is with the use made of the relevant statements at the applicant ‘s criminal trial “.

31. Likewise if there are grounds for believing that there is malpractice or illegality in the operation of the banking system, it is essential, in the public interest, that the public authorities should have power to find out what is going on. It appears to me that the powers given to the Inspectors under Section 10 of the Companies Act, 1990, as set out earlier in this Judgment, are no greater than the public interest requires. Their meaning is clear and they pass the

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

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

34. Nevertheless a practical problem has arisen in the course of the Inspectors’ enquiries. The Inspectors and the Solicitors advising the Bank officials disagree as to the correct interpretation of the Inspectors’ powers and as to the implications for the Bank officials of answering the Inspectors’ questions. In these circumstances the Inspectors have applied to the High Court for guidance. Kelly, J. took the view that the Inspectors’ application was a proper one and decided to settle the present issue as the most practicable way of resolving the problems which had arisen between the Inspectors and the Solicitors for the Bank officials. Under these circumstances this Court - while

35. Earlier in this Judgment I have referred to the fact that the majority Judges in the European Court in the Saunders Case found powers such as those vested in the Inspectors in the present case to be necessary to enable the public authorities to investigate fraud. At the same time the Court found that some of the answers given by Saunders in reply to Inspectors in that case were self incriminating and that the use made by the prosecution, at the subsequent criminal trial, of Saunders replies to the Inspectors was such as to deny him a ‘fair trial” within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights. At paragraph 74 of its Judgment the Court stated:-

36. A similar line of reasoning led the Constitutional Court in South Africa in Ferreira & Ors. v. Levin & Ors. [1996] ISA 484 to conclude that part of S.4 17 of the South Africa Companies Act, 1973 was unconstitutional. The section in question dealt with the examination of Directors and Officers of an insolvent Company in the course of a winding up. It provided that any such person should be required to answer questions put to him notwithstanding that the answer might tend to incriminate him and that “any answer given to any such question may thereafter be used in evidence against him “. The Court held that the provision contained in the words quoted was unconstitutional as violating an accused person’s right to a fair trial.

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

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

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

40. In the course of its Judgment the Court (at p. 386, 387 of the Report) stated:-

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

42. A rather different view was taken, albeit obiter, by the Court of Criminal Appeal, in the case of The People v. McGowan [1979] IR 45 . In that case the accused had been arrested under Section 30 of the Offences against the State Act. He had subsequently made an incriminating statement which both the trial Court and the Court of Criminal Appeal were satisfied was a voluntary statement. Section 52 of the Offences against the State Act, 1939 had not been invoked by the police while the accused was in custody under Section 30 and there was no evidence that the accused was even aware of the provisions of that Section. The status of statements made by an accused person in responce to the exercise by the police of their powers under Section 52 of the Offences against the State Act was not therefore properly before the Court. The

43. Judgment does however contain the following passage which is obviously obiter:-

44. Even if s.52 of the Act of 1939 had been invoked, or even if the accused had been aware of its provisions, in the view of this Court the submission would still not be sound in law. Section 52 of the Act of 1939 is almost identical in terms with s. 15, sub-s. 1, of Article 2A of the Constitution of the Irish Free State. In The State (Mc Carthy) v. Lennon the former Supreme Court held that a statement taken in pursuance of the provisions of s. 15 of Article 2 was lawfully taken and was admissible in evidence. Counsel on behalf of Mc Carthy had objected at the trial to the admission of the statement in evidence on the ground that it was not voluntary, being made under compulsion by reason of the punishment to which persons declining to answer questions put to them pursuant to s. 15 of Article 2A rendered themselves liable. In the course of his judgment, Fitzgibbon J said at p. 500 of the report: - ‘The plain and obvious effect of Art. 2A sect. 15, is to empower the Garda Síochána to interrogate persons detained on suspicion under the Article, and sect. 16 makes it a criminal offence to refuse to answer, or to answer untruthfully. Therefore statements so obtained are obtained lawfully, and I know of no law which makes statements or confessions lawfully obtained or

45. The passage quoted compares Section 52 of the Offences against the State Act, 1939 with Section 15 s.s.1 of Article 2A of the Constitution of the Irish Free State but does not advert to the fact that Article 2A of the Constitution of the Irish Free State overrode all subsequent Articles of that Constitution whereas Section 52 of the Offences against the State Act, 1939 is governed by the present Constitution. Moreover it quotes from Cross on

46. Evidence without adverting to the fact that Cross was referring to the British Constitution where Parliament is supreme whereas Statutes of the Oireachtas are subject to the Constitution and must be interpreted in the light of it.

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

48. The relevant passage appears at p. 323 of the Report and reads as follows:-

49. The Court is not satisfied, having regard, in particular, to the various protections of the right of silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s.30, sub-s. 5 available to a member of the Garda Síochána in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise; constitutes an invasion of or failure to protect the right of silence of a citizen. On that basis the Court is satisfied that the challenge under this heading must fail. The Court does not find it necessary, therefore, to express

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

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

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

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

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

55. The Judgment in this case follows the decision in Heaney v. Ireland [19961 1 IR 580 insofar as that case decided that there may be circumstances in which the right of the citizen to remain silent may have to yield to the right of the State authorities to obtain information. It is not inconsistent with the decision Rock v. Ireland [1998] 2 ILRM 37 that there may be circumstances

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

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