Ruling on NIB staff's challenge is reserved

The Supreme Court yesterday reserved judgment on an appeal by employees of National Irish Bank against a High Court ruling that they must answer questions put to them by the inspectors investigating the bank's affairs.

The appeal was by Mr John O'Reilly, manager of the NIB branch at Patrick Street, Limerick, who was nominated as the representative of more than 100 NIB employees and former employees for the proceedings.

The inspectors, Mr Tom Grace and Mr John Blayney SC, went to the High Court earlier this year for directions on interviews with NIB staff and former staff.

The inspectors had hoped to begin the interviews in May but solicitors for the staff sought confirmation that they were entitled to refuse to answer on the grounds of the privilege against self-incrimination. The inspectors told the High Court hearing that they proposed to conduct the interviews in private. Interviewees might have a legal adviser present and would have a right to a transcript of their evidence. They would not be entitled to see questions in advance, to attend evidence of other witnesses or to cross-examine them, or to indemnity against costs.

In a reserved judgment in July, the late Mr Justice Peter Shanley said that persons from whom information, documents or evidence are sought by the inspectors, in the context of an investigation under the Companies Act 1990, are not entitled to refuse to answer their questions or provide documents on the grounds that these may tend to incriminate them.

He found the proposed interview procedures "consistent with the requirements of constitutional and natural justice".

The judge said he did not have to decide whether there was a constitutional right not to have compelled testimony used against an accused, because that matter had not yet arisen.

Mr O'Reilly appealed that decision and the hearing opened at the Supreme Court yesterday.

Mr Michael McDowell SC, with Mr Adrian Hardiman SC, for Mr O'Reilly, said the court had to decide whether Section 18 of the Companies Act 1990, which purported to render any answer given to a question posed under Section 10 of the Act usable in any future criminal proceedings against that person, allowed for the invocation of the privilege against self-incrimination.

In construing Section 10 of the Act, particularly the inspector's right to require an answer to a question, and the High Court's power to compel an answer to such a question, the legal consequences must be central to assessing the duty to answer, he said.

Mr McDowell also argued that investigations by inspectors under the Act must apply equally to everyone questioned under that Act.

The inspectors were effectively seeking a ruling that there was no privilege of self-incrimination available to people questioned under Section 10 of the Act, Mr McDowell said. The inspectors were seeking to dispose of the issues of self-incrimination in abstract.

He said no questions had yet been put to the staff and they could not be put in a different situation to that of others questioned under the Act.

Mr Donal O'Donnell SC, for the inspectors, said his clients' case was that their questions must be answered. They were not concerned with whether those answers were or were not admissible in any criminal proceedings.

He said the High Court had determined that the privilege against self-incrimination could lawfully be abrogated by statute and that did not appear to be challenged.

He wanted the Supreme Court to rule that Section 10 of the Act requires interviewees to answer questions with whatever consequences. The answers were compellable and what happened later was a separate issue.

Ms Fidelma Macken SC, for the Minister for Enterprise and Employment and the Attorney General, said she was reluctant to address the question of whether the DPP may have a view as to prosecutions in the future.

She said the Attorney General's view was that in an application of this sort it was inappropriate and premature for the Supreme Court to reach a blanket ruling as to whether any testimony or answers given to the inspectors might be used in criminal proceedings.

It was inappropriate to throw a blanket degree of protection over any answers given which might tend to incriminate, counsel said.