Supreme Court of Ireland Decisions

1. This is an appeal brought by the Applicant herein, Det. Supt. Michael Fachtna Murphy, the Chief Bureau Officer, Criminal Assets Bureau (hereinafter referred to as the Appellant) against the judgment of McCracken J. delivered on the 1st July 1999 and the Order made in pursuance thereof on that date, whereby he dismissed the Motion issued on behalf of the Appellant which sought against the Respondent;

2. By order of the High Court Geoghegan J. made on the 4th day of May 1999 the Appellant had been given leave to apply by way of an application for judicial review for the aforesaid reliefs.

3. The said order further provided that the Appellant do serve an Originating Notice of Motion returnable before the Court on Monday the 10th

4. The grounds upon which the said liberty was granted were set forth in paragraph (B) of the Statement required to Ground Application for Judicial Review and verified by the affidavit of the Appellant sworn on the 4th day of May 1999.

5. In accordance with the terms of the said order, the motion was issued and served. On the 7th day of May 1999 a Notice of Opposition was filed on behalf of the Attorney General and on the 10th day of May 1999 a Statement of Grounds of Opposition was filed on behalf of the Respondent.

6. The facts which led to the said application and on which it was based are set forth in the aforesaid affidavit of the Appellant and in the judgment of the learned High Court Judge and may be briefly summarised as follows:-

7. The learned trial judge stated in the course of his judgment that:-

8. Having formed the conclusion that the Respondent had jurisdiction to determine the claim for privilege, the learned trial judge did not deal with the issue as to whether the documents were privileged or not but referred that issue to the Respondent, who he had held to have jurisdiction in the matter.

9. The Appellant has appealed against the finding by the learned trial judge and the only issue which is before this court is as to whether the learned High Court judge was correct in holding that the Respondent had jurisdiction to decide on whether the documents in question were privileged. It is urged on behalf of the Appellant that where, as here, the claim of privilege is grounded on the public interest in the detection, investigation and prosecution of crime, the only bodies capable of resolving the issue as to whether that public interest must yield to the admitted public interest in the full investigation of the matters within the remit of the Tribunal are the courts established under the Constitution. The resolution of such an issue, it is said, constitutes the administration of justice and, accordingly, its purported resolution by the sole member would violate Article 34.1 of the Constitution.

10. It was further contended that, since there existed what was described as a dispute” between the Respondent and the Applicants as to whether the latter were legally obliged to produce the documents in question to the Tribunal, the adjudication by the sole member of that dispute would violate the maxim nemo judex in causa sua , since he clearly had an interest, albeit not a personal one, in the resolution of the issue.

11. The status in law of tribunals established by a resolution of both Houses of the Oireachtas pursuant to the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 has been made clear in recent decisions of this court, viz. Goodman International v. Mr. Justice Hamilton [1992] 2 IR 542 and Charles J Haughey v. Mr. Justice Moriarty , unreported, judgment delivered the 28th July 1998[eIWLR_1056].

12. A tribunal so established is not conducting a trial: it is merely conducting an inquiry. It follows that findings, rulings and decisions made by the Tribunal acting pursuant to the resolutions by which it was established and within the statutory framework by which its proceedings are governed do not constitute the administration of justice within the meaning of Article 34.1.

13. Section 1 of the Tribunals of Inquiry (Evidence) Act 1921 vests in the Respondent:

14. Any person who is required by the Tribunal to produce documents in his possession or procurement may claim that some or all of the documents in question are privileged. That is the claim made by the Appellants in the present case. Where such a claim is made in the course of proceedings in the High Court, it must be decided by the court and, for that purpose, the court may find it necessary to examine the documents in question. It is beyond argument that

15. It is indeed conceded on behalf of the Appellant that, in general, the Respondent is entitled to make such rulings. It is argued, however, that the ruling which he proposes to make in the present case is one that can only be made by the High Court or this Court. Where an agency established by statute, such as the Appellant, claims that the disclosure of documents would be contrary to the public interest, such a claim, it is urged, can only be adjudicated upon by the courts. That, it is said, is the effect of the decisions of this court in Murphy v. Dublin Corporation [1972] IR 215 and Ambiorix Limited v. Minister for the Environment [1992] 1 IR 277 .

16. The proposition of law established by those authorities is clear and fundamental. Where, in the course of proceedings in any court, a claim is made on behalf of the executive that the production of documents would be contrary to the public interest, it is for the court alone to determine whether that claim should be upheld. A conflict which arises in the course of proceedings in any court between the public interest in the administration of justice and the public interest that may be affected by the production of particular documents can only be resolved by the court which is hearing the proceedings.

17. That is not the position in this case. There are no proceedings in being before a court in which the executive are claiming the right not to produce documents. The Appellant is in no different position from any other person or body lawfully required to attend before the Tribunal or produce documents in their possession or procurement to the Tribunal and the authorities relied on are not relevant to the exercise by the Tribunal of its jurisdiction.

18. As was pointed out by this Court in Charles J Haughey .v. Mr. Justice Moriarty , [eIWLR_1056] [ a tribunal such as this must observe fair procedures and respect the constitutional rights of persons and bodies, such as the Appellants, who are affected by its proceedings. Thus, although no appeal lies from any ruling the Respondent may make in this or any other matter, any infringement of fair procedures or constitutional rights may be corrected in judicial review proceedings in the High Court.

19. As to the second proposition relied on on behalf of the Appellant - that the procedure adopted by the Respondent is in breach of the maxim nemo judex in causa sua, - it is hardly appropriate to describe the Respondent as being in a “dispute” with the Appellant. He has exercised the powers vested in him by the Oireachtas for the purpose of the inquiry which he has been required to conduct by the two Houses and the Appellants have sought to resist the exercise of the powers on the ground of privilege. The decision as to whether

20. The object of the maxim is to ensure that in judicial and quasi-judicial proceedings, decisions are not made by persons who could be perceived as having an interest in the decision, subject to certain qualifications in the case of quasi- judicial tribunals, the membership of which may necessarily include persons who might be regarded as having an interest in the decision. In that sense, the Respondent has no interest whatever in the decision. The fact that the nature of a ruling made by him on a matter in dispute during the course of the proceedings of the Tribunal may facilitate the inquiry which he is conducting does not render the making of the decision subject to the application of the maxim: if it did, every such ruling made during the course of such an inquiry could be challenged by a person claiming to be aggrieved by it in judicial review proceedings in the High Court and the operations of such tribunals, established to deal with matters of importance to the public on an urgent basis, would be rendered even more lengthy, cumbersome and expensive than they sometimes necessarily are. That cannot have been the intention of the legislature.

21. It follows that the learned High Court judge was correct in holding that the Respondent had jurisdiction to decide on whether the documents in question were privileged and that the appeal should be dismissed.