The High Court yesterday declared unconstitutional Section 19.6 of the Companies Act, which says that a statement made by a person to an authorised officer, in compliance with a requirement imposed by the section, may be used in evidence against him.
However, the disputed section has since been replaced by a statutory provision that effectively "immunises" answers given to an authorised officer from use in any subsequent criminal proceedings.
Mr Justice Kearns was giving judgment on a challenge by Dunnes Stores to the constitutionality of provisions of the Act governing the powers of an authorised officer appointed to examine the books and records of two Dunnes companies.
The case was part of legal proceedings initiated by Dunnes in 1998 after the Minister for Enterprise, Trade and Employment, Ms Harney, appointed an authorised officer to examine the books and records of Dunnes Stores Ireland Co and Dunnes Stores (Ilac Centre) Ltd.
The officer's appointment came after the McCracken report had concluded payments had been made by Mr Ben Dunne to former Taoiseach Mr Charles Haughey, former Fine Gael Minister Mr Michael Lowry and two companies with which Mr Lowry was associated.
Following a number of previous hearings, the Supreme Court last February found the appointment of the officer was justified but returned a constitutional issue to the High Court for determination. During the High Court hearing in April last, Dunnes claimed sections 19.5 and 19.6 of the Companies Act were unconstitutional. The claim was rejected by the State.
In his judgment yesterday, Mr Justice Kearns said all demands and requirements made under Section 29.4 of the Act were made on a lawful and constitutional basis. He rejected submissions as to the constitutionality of Section 19.5, which states that if a requirement to produce books or documents or provide an explanation or make a statement, which was imposed by the section, was not complied with, the body or person on which the requirement was imposed shall be guilty of an offence.
