Supreme Court of Ireland Decisions

1. The Criminal Justice Act 1994 contains provisions intended to facilitate the taking of evidence in this country for use in criminal proceedings in another

2. The procedure is set in train when the Minister for Justice, Equality and Law Reform receives a request from the appropriate authority in another country for the taking of evidence. The Minister may then nominate a judge of the District Court to receive the evidence which seems to be appropriate for the purpose of giving effect to the request. The judge, who has the same powers as he or she enjoys in any other proceeding in the District Court for securing the attendance of witnesses, then hears the evidence and furnishes it to the Minister for transmission to the requesting court, tribunal or authority. It is accepted that, in so acting, he or she is not engaged in the administration of justice and that the Oireachtas could, without infringing the Constitution, have assigned the function to a person other than a judge.

3. In the present case, the Minister received a request from a juge d’instruction or examining magistrate in France for the taking of the evidence of the Applicant, who is a national of a third country but resides in Ireland. The Minister having nominated the Respondent (hereafter “the District Judge”) to take the evidence, the proceedings began before him in the District Court. It

4. The Applicant declined to answer three questions put to him by the District Judge, on the ground that he was not required so to do under the relevant provisions of the 1994 Act. The District Judge, having ruled against the Applicant on this matter and adjourned the proceedings so as to enable him to institute proceedings by way of judicial review in the High Court, if so advised, the Applicant applied to the High Court for leave to institute such proceedings and was granted such leave. When the proceedings came on for hearing before Geoghegan J. in the High Court, he was asked by the parties to determine as a preliminary issue whether those proceedings also should be heard in camera . It was submitted on behalf of the Applicant that they should be so heard, but it was submitted on behalf of the Attorney General and the Minister, who were Notice Parties to the proceedings, that they should be heard in public, in accordance with Article 34.1 of the Constitution. In a reserved judgment, Geoghegan J. upheld the submission on behalf of the Notice Parties and from that decision the Applicant now appeals to this court. The parties had agreed that, pending the determination by the High Court of this issue, the press reporting of the proceedings should be prohibited and, again by consent, that prohibition was extended by this court until the determination of the appeal.

5. It is now necessary to consider the provisions of the 1994 Act in more detail. Section 51(1) provides that the procedures under consideration may be adopted where inter alia the Minister

6. The request in this case relates not to any criminal proceedings in France, since no person has at this stage been charged with any offence, but to a criminal investigation that is being carried on by the juge d’instruction .

7. Subsection (2) provides inter alia that, if the Minister is satisfied that an offence under the law of the requesting country has been committed or that

8. It is not in dispute that these conditions were met in the present case.

9. Section 51(6) provides that the proceedings before the nominated judge are to be conducted in accordance with the provisions of the Second Schedule to the Act. Clause 3(1) of the Second Schedule under the cross-heading “Privilege of witnesses ” provides that:-

10. He further deposed that the exercise by the juge d’instruction of his jurisdiction was subject to review by the division of the court of appeal in France known as the “Chambre d’Accusation ‘ that such procedure was the equivalent of a judicial review procedure in Ireland (the nature of which had been explained to him) and that those procedures were also required by the French Criminal Procedural Code to be held in camera.

11. In his judgment, the trial judge, having referred to the recent decision of this court in the Irish Times Limited & Ors. v. Judge Murphy & Ors. [1998] 1 IR 359 [1998] 2 ILRM 161 , concluded that

12. On behalf of the Applicant, Mr. Frank Clarke, SC submitted that the trial judge was correct in holding that there were exceptions to the principle that, under the Constitution, justice must be administered in public, and that they could include cases where the fairness of a trial in a foreign country was endangered. He said, however, that the trial judge was wrong in law in the test which he applied in this case, namely, that it would be necessary for the Applicant to establish that he would be prejudiced by justice being administered in public and that it was not sufficient to rely on a wish to keep his affairs private.

13. Mr. Clarke submitted that the trial judge should have had regard to the weight which should be attached to the manner in which proceedings are conducted in a requesting country under the 1994 Act. Where the equivalent proceedings in the requesting country are conducted in a particular manner, the courts in this country should not adopt a different procedure save for good reason. In the present case, the legal system of the requesting country clearly regarded it as of importance that both the proceedings before the juge d’instruction and any proceedings brought in a superior court by way of review or appeal should be heard in camera and that the strictest confidentiality should

14. On behalf of the Minister and the Attorney General, Mr. Paul Sreenan, SC submitted that, while it was accepted on their behalf that in certain circumstances the requirement in Article 34 that justice be administered in public had to yield to other constitutional rights, such as the right of an accused person to a fair trial, the trial judge was correct in concluding that it had not been established that any such exception to the general principle arose in this case. The “special and limited cases” envisaged by Article 34 in which justice could be administered otherwise than in public were such as were “prescribed by law”: the present was not one of them.

15. Mr. Sreenan further submitted that it was a rule of private international law that all matters of procedure were governed by the lex fori and that, accordingly, whether the proceedings should be heard in public or not should be determined in accordance with Irish law, citing in support Dicey and Morris on The Conflict of Laws 12th Ed., vol. 1 at p.169.

16. Article 34.1 of the Constitution provides that

17. It is accepted that in this case the District Judge was not engaged in the administration of justice and was correct in holding the proceedings in camera having regard to the procedure followed in France. It is also clear, however, that the proceedings instituted in the High Court by way of judicial review involve the administration of justice.

18. The principal statutory provisions under which particular cases may be heard otherwise than in public are set out in the judgment of O’Flaherty J. in the Irish Times Limited & Ors. v. Judge Murphy & Ors. one of them being where a district judge conducting the preliminary examination under the Criminal Procedure Act 1967 invokes the power under s.16(2) to exclude the public or individuals from the court except bona fide representatives of the press. In the judgments delivered in that case, it was also made clear that, apart from statute, cases could arise in which the requirements of Article 34.1 had to yield to another constitutional requirement, i.e. ensuring that the accused person has a

19. Manifestly, this case does not fall within any of the “special and limited cases” identified in The Irish Times Limited & Ors. v. Judge Murphy & Ors . It does not fall within any of the statutory exceptions and it is not claimed that any right of the Applicant (who is not charged with any offence) to a fair trial will be prejudiced.

20. The High Court judge in this case accepted that there could be cases in which an Irish court would order proceedings such as this to be heard in camera if that was required by the demands of a fair trial in a foreign country. A considerable jurisprudence has developed in this country as to what is meant by the phrase “in due course of law” in Article 38 of the Constitution: that body of law, in turn, constantly reflects the approach of the Anglo-American legal system to “due process” in criminal trials. However, the approach in other jurisdictions outside the common law world may be very different. In the context of the present proceedings, it is sufficient to say that there could be difficulties in allowing the exception to Article 34.1 envisaged by the trial judge, which it is unnecessary to explore any further. No one has been charged with any criminal offence in the present case and there are no criminal proceedings in being against the applicant.

21. The submission that an exception to the requirements of Article 34.1 is justified because of what was described as the respect that should be shown to the courts of the requesting country is, in effect, an invocation of the doctrine of “comity of courts”. That concept, however, is not always a satisfactory guide to resolving an issue as to whether the law of a foreign state must be applied in a particular context in this jurisdiction: such issues must be determined in accordance with the principles of private international law applied in our courts, a corpus of law which, as is well known, is of daunting complexity. As Barrington J. put it in Larkin v. National Union of Mineworkers [1985] IR 671 at p.683:-

22. Article 29.3, from which Mr. Clarke also sought to draw comfort, provides that

23. This provision has been invoked in cases where such “generally recognised principles” can be clearly identified, such as the doctrines of sovereign and diplomatic immunity and the principle of speciality in extradition cases, and is particularly applicable where they derive from customary law. But again it provides no guidance on the question as to whether a particular procedure of a foreign court must be followed in this jurisdiction.

24. I am satisfied that it has not been demonstrated that this case comes within the category of “special and limited cases... prescribed by law” in which justice may be administered other than in public. Specifically, it has not been shown that there is any rule of public or private international law which requires such a procedure in this case.

25. As to Mr. Sreenan’s submission that this is in any event a matter of procedure, rather than of substance, which is governed by the lex fori the law is thus stated by the learned editors of Dicey and Morris on the Conflict of Laws in the passage (at p.169) to which he referred us:-

26. The passage concludes with the following comment:-

27. To the same effect is the following comment by Professor William Binchy in Irish Conflicts of Law at p. 625:-

28. It is by no means apparent that any particular degree of confusion or difficulty would result from having the judicial review proceedings in this case heard in camera.

29. There is, on the other hand, undoubtedly some force in the contention that the rule as to whether particular proceedings should be heard in public is more than merely procedural. But one must not be misled, by the fact that the rule, at least in the Irish context, has a significant constitutional dimension, into concluding that it must necessarily be treated as a rule of substance, rather than of procedure. That would be to assume that a rule classified in one way for internal law purposes must be classified in the same way in order to resolve a conflicts of law issue. That was said by some commentators to be the error underlying the much criticised English decision on the Statute of Frauds of Leroux v. Browne (1852) 12 CB 801.

30. However, it is unnecessary to express any concluded opinion on these difficult and interesting questions, since, for the reasons already given, I am satisfied the appeal must be dismissed.

31. This is an appeal by the Applicant/Appellant (hereinafter referred to as the Appellant) from the judgment of Mr. Justice Geoghegan delivered on the 31st July, 1998. There is a net issue to be determined which is a preliminary issue in the Judicial Review matter. The Appellant seeks an order that the Judicial Review proceedings which he has launched should be held in camera .

32. The Appellant has obtained leave in the High Court to seek Judicial Review of a decision of the Respondent in proceedings taking place before the Respondent pursuant to Section 51 of the Criminal Justice Act, 1994 (hereinafter referred to as the 1994 Act). In February 1998 the Minister for Justice, Equality and Law Reform, on receipt of a request from French Prosecuting Authorities, nominated the Respondent to obtain evidence in relation to two matters; one concerned an investigation by French Prosecuting Authorities of corruption in the management of Aero Mexico; the other related to an investigation into the laundering of sums of money derived from drug trafficking. The matter was before the Respondent on the 4th, 5th and 6th March, 1998. The Appellant declined to answer certain questions. The Respondent required him to answer the questions objected to by the Appellant. The obtaining of evidence was adjourned while the Appellant seeks Judicial Review of the Respondent’s decision. The substantial issue of the Judicial Review is not before the Court. The matter to be determined is whether the Judicial Review may proceed in camera .

33. In the High Court the Learned Trial Judge held:

34. Against that Order the Appellant has appealed. The Notice Parties appeared in the High Court and the Supreme Court as legitimis contradictors .

35. Mr. Frank Clarke, S.C., Counsel for the Appellant, submitted that there was an important net issue to be determined in this case. There were two matters for decision. First, the decision on the law in principle. Second, the decision applying the law to the facts of this case. He submitted that the Learned Trial Judge was correct in holding that in a hypothetical case there may be instances where an Irish Court would order that Judicial Review proceedings should be held otherwise than in public. There may be instances where a

36. Judicial Review would be held otherwise than in public if a fair trial demands that approach. He submitted that in this case the Irish Court is acting in aid of the French procedures which are different. Under French law there is an obligation of secrecy on all parties. Failure to comply with the obligation of secrecy is an offence. The Irish Court should pay respect to the procedure of the French Court. This should be a factor of considerable weight in the balance for the Irish Court. The combination of Article 29.1 and Article 38.1 of the Constitution of Ireland means that Irish Courts can have regard to the issue of due process in another jurisdiction. This is a proposition of Irish law. If it is right then the Court has to consider the way in which publicity would affect the foreign process. Thus, the Court should look at the rules of the foreign process. In this case, the French law requires privacy in review applications of this type.

37. Mr. Sreenan, S.C., Counsel for the two Notice Parties, submitted that what is taking place in Ireland is an Irish process. Counsel for the Appellant seeks to apply French law to the Irish process. He submitted that Article 34.1 applies and this case falls under none of.the authorities therein. This case was not an exceptional case pursuant to the Constitution, Article 34.1. He submitted that matters of procedure are governed by the lex fori. The issue in this case is a matter of procedure. Therefore this matter is governed by Irish law, it is a rule of procedure and the lex fori applies. He submitted that the Appellant is seeking to have this matter heard other than in public for reasons of privacy and confidentiality. He argued that those concepts are not a proper basis, are nowhere near the requirements for invoking the inherent jurisdiction of the Courts. He pointed out that there was no affidavit from the Applicant. There was no suggestion that the administration of justice in France or Ireland would be imperilled if the proceedings were held in public, nor was it suggested that the Appellant would be prejudiced if the proceedings were heard in public.

38. 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.

39. The procedure before Judge Smithwick is authorised by Section 51 of the 1994 Act. The 1994 Act is intended, inter alia , to aid international co-operation in criminal matters in accordance with a number of international instruments including the Council of Europe Convention on Mutual Assistance in Criminal Matters (1959) . The 1994 Act enabled the State to ratify the above mentioned Convention, amongst others. Consequently by the 1994 Act the Oireachtas passed legislation to enable co-operation across national boundaries in criminal investigations.

40. The 1994 Act Section 51 of the 1994 Act provides for a procedure by which evidence may be obtained in the State for use in criminal proceedings in another State. Section 51 states:

41. It is significant, also, that the operation of the procedure is not encumbered by a rule of dual criminality...

42. There is incorporated, however, a version of the speciality rule: the Minister shall not exercise these powers unless provision is made by the requesting State that any evidence that may be furnished will not be used for any purpose other than that specified in the request.”

43. Thus the Act and the ratification of the Convention extend the co-operation between States in relation to investigations of crime.

44. The administration of justice in Ireland is in public, with special and limited exceptions. Article 34.1 of the Constitution of Ireland provides:

45. Whereas the hearing before Judge Smithwick is not the administration of Justice, a hearing in the High Court on Judicial Review is the administration of justice. Thus, the applicable law is to be found in Article 34.1 of the Constitution, statute and case law.

46. The right to have justice administered in public is not absolute. An accused’s rights may require a hearing to be held otherwise than in public. There is an inherent jurisdiction in the Courts to order that a criminal trial be held otherwise than in public: Irish Times Limited, & Ors. v. Judge Anthony G. Murphy [1998] 1 IR 359. The right of an accused to a fair trial is one of the most fundamental constitutional rights afforded to persons and on a hierarchy of constitutional rights is a superior right: D. v. Director of Public Prosecutions [l994] 2 IR 465 . A Court may limit the publication of proceedings where that

47. The second stage to be considered is the application of the principle to the particular facts of this case. The factors raised by the Appellant include Article 29 of the Constitution of Ireland, French law, due process under French law and Article 34.1 of the Constitution of Ireland.

48. The Appellant has called in aid Article 29 of the Constitution of Ireland. Article 29 states:

49. Article 29 relates primarily to international relations between States, to the exercise of executive functions by the State in relation to other nations and to foreign affairs. The implementation of s. 51 of the 1994 Act is an example of legislation relating to and providing the basis for the ratification of an International Convention to aid international co-operation. However, no international agreement has become a part of the domestic law of Ireland. The Appellant has sought in effect to have the laws of France applied in Ireland and has cited French law and Article 29. There is a body of case law which holds that Article 29 does not confer rights on individuals: O’Laighléis, Re [1960] IR 93 Maguire C.J. at p.124, State (Gilliland) v. Governor of Mountjoy Prison [1987] IR 201, Barrington J. at p.217 . More recent case law implies a developing jurisprudence.

50. The rights referred to by Finlay C.J. were amongst the most fundamental to humanity. The matters raised by the Appellant relate to a wish for confidentiality and the nature of French procedures.

51. This case does not raise an issue of public international law. No treaty is in issue, there is no question of a treaty being part of domestic law. The 1994 Act is the jurisdictional basis for the hearing before the Respondent and on the judicial review an issue of the conflict of laws has arisen. The conflict exists between the French and the Irish approach to an aspect of judicial review, in France such a review would be held in private, in Ireland such a review would probably be held in public. The general principle in conflict of laws is that procedure is governed by the lex fori. Lex fori is a technical term meaning the domestic law of the forum. In this case the law of the forum is Irish. Dicey and Morris, The Conflict of Laws , 12th Edition, at p.169, set out the rule as to matters of procedure:

52. Dicey and Morris state further that “the principle that procedure is governed by the lex fori is of general application and universally admitted”. Applying this principle the Court uses its own rules of procedure and refuses to apply any foreign rule which it determines is

53. The requirement that the administration of justice be in public except in special and limited cases is a rule of procedure. It is also a core principle of the Constitution and of constitutional justice.

54. In this case there is no potential Irish criminal trial being investigated. There is no question of any risk to an Irish trial. There is no issue of unfair procedures in an Irish criminal trial. While the Judicial Review proceedings are an administration ofjustice they are not preliminary to an Irish criminal trial. Consequently, in balancing the relevant considerations, on the one hand are the civil proceedings, Judicial Review with the possibility of a criminal trial in another jurisdiction which has a different procedure, and a wish for confidentiality on the part of the Appellant. On the other hand is the constitutional principle and procedure that the administration of justice be in public. The harmonisation of these principles is a matter of balance to be achieved by the Courts.

55. This case illustrates co-operation and mutual respect between two countries with fundamentally different legal systems; common law in Ireland, civil law in France. The statutory basis for this case is the 1994 Act, which is intended to aid international co-operation. The case arises out of investigations in France resulting in the request to obtain evidence in Ireland. The facts as to the French law were established in evidence. There is no Irish equivalent to the Juge d’Instruction who is conducting the relevant inquiry in France. Under Article 11 of the French Criminal Procedural Code the criminal investigation must be carried out in secret, save where provided by law. Any person involved in the investigative procedure is bound to professional secrecy, subject to a penalty under the French Penal Code. Further, while the decision of the Juge d’Instuction is subject to review by the Chambre d’Accusation pursuant to Articles 171 and 173 of the French Criminal Procedural Code, all such Judicial Review type proceedings before the Chambre d’Accusation concerning the exercise by the Juge d’Instruction of his jurisdiction are held in camera and the decision is given in camera pursuant to Article 199 of the French Criminal Procedural Code. The Cour de Cassation has held that this provision is not contrary to the provisions of Article 6(1) of the European Convention on Human Rights pursuant to which judgments must be given in public. The limited exceptions to the requirement of secrecy before the Chambre d’Accusation concern proceedings and decisions regarding the detention of an accused person and decisions to dismiss charges against a mentally handicapped person when the injured party can demand that the decision be given in public in the presence of the accused.

56. These facts show that the legal system in France is different to that in Ireland and that France has a legal system with developed confidentiality and privacy laws. However, while

57. The difference between the parties is subtle. It relates to the test to be applied by the Court. On the one hand is the Irish approach, that justice be administered in public unless there is a real risk of an unfair trial, of unfair procedures. On the other hand is the French approach, that the hearing be in private, unless there are good reasons to the contrary. If the French law is applied, on the facts and in the circumstances of this case, it should be heard in camera . If the Irish law applies, on the facts and in the circumstances, the case should be heard in public.

58. No case has been made that a fundamental human rightof the Appellant is endangered. The application is grounded on a wish. for confidentiality, the French approach to such reviews and Article 29 of the Constitution.

59. I am satisfied that the test to be applied is the Irish test. The onus is on the Appellant. He has not submitted any argument which brings the case within any of the exceptions under Article 34.1. There is no express exception created by the 1994 Act. In seeking the exercise of the inherent jurisdiction of the Court under Article 34.1 the factors which the Appellant has put forward are, (a) the French law of procedure and, (b) the Appellant’s wish to keep the matter confidential. Neither factor meets the requirements of

60. Applying the appropriate test, the Appellant has not established that the matter should be heard otherwise than in public. The Appellant has offered no evidence of his particular circumstances other then the French domestic law and his wish for confidentiality. As French law is not applicable there are not sufficient grounds for displacing the Irish constitutional principle that justice be administered in public.

61. I would dismiss the appeal.