Tribunal of inquiry has jurisdiction to decide whether documents are privileged (Part 1)

Michael Fachtna Murphy (applicant) v The Honour- able Mr Justice Fergus Flood (respondent); the Attorney General (acting in the public interest), the Director of Public Prosecutions and George Redmond (notice parties).

Judicial Review - Tribunal of inquiry - Powers - Documents - Privilege - Whether tribunal has power to decide on the issue of privilege - Whether question of privilege could only be determined by a court - Tribunals of Inquiry (Evidence)Act 1921, section 1 - Tribunals of Inquiry (Evidence) (Amendment) Act 1979, section 4 - Tribunals of Inquiry (Evidence) (Amendment) Act 1997, section 4.

The High Court (before Mr Justice McCracken); judgment delivered 1 July 1999.

The tribunal has jurisdiction to make a decision on whether documents are privileged. There was no necessity to refer the matter to the High Court since a tribunal was not engaged in the administration of justice. Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 was an enforcement section only, and should not be interpreted as requiring a tribunal to refer the question of privilege to the High Court. In determining the issue of privilege, fair procedures must be observed.

Mr Justice McCracken so held in upholding the decision of the respondent that he had jurisdiction to determine the issue of privilege and in quashing his decision that the applicant was not entitled to privilege, since the applicant had restricted himself to submissions as to jurisdiction and must now be given an opportunity to make submissions on the substantive matter.

Dermot Gleeson SC, Paul Butler SC and Nuala Butler BL for the applicant; Desmond O'Neill SC, Felix McEnroy SC and Eunice O'Raw BL for the respondent; James O'Reilly SC and Eamon Galligan BL for the first notice party; Edward Comyn SC and Feichin McDonagh BL for the second notice party; Angus Buttanshaw BL for the third notice party.

Mr Justice McCracken said that the applicant was the chief bureau officer of the Criminal Assets Bureau ("the CAB") and was a detective chief superintendentin the Garda Siochana. The respondent was the sole member of a tribunal set up pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 and 1979.

The CAB was established pursuant to the Criminal Assets Bureau Act 1996, in order to pursue the objectives set out in section 4 of that Act, namely to identify assets of persons which derive or are suspected to derive, directly or indirectly, from criminal activity, to take appropriate action under the law to deprive or to deny those persons of the assets or the benefit of such assets, and to pursue any investigation or do any other preparatory work in relation to any proceedings arising from the those objectives. Mr Justice McCracken said that the CAB was established as a body corporate with perpetual succession, independent of the Garda Siochana, even though its chief bureau officer must be appointed from members of Garda Siochana of the rank of chief superintendent.

Section 8(7) of the 1996 Act provides that any information or material obtained by a bureau officer for the purposes of the Act may only be disclosed by the bureau officer to particular persons, namely another bureau officer or a member of the staff of the bureau, or any member of the Garda Siochana for the purposes of Garda functions. Disclosure can also be made, in certain circumstances, to any officer of the Revenue Commissioners, any officer of the Minister for Social Welfare, or any other officer of another Minister of the Government or of a local authority. Mr Justice McCracken said that the Act also provided for anonymity for officers of the CAB, and clearly confidentiality was intended to play an important part in its functions.

The tribunal had been established by order of the Minister for Environment and Local Government on 4 November 1997. The respondent was appointed as the sole member thereof, and the order also provided that the Tribunals of Inquiry (Evidence) Acts 1921 and 1979 should apply to the tribunal. The order was made pursuant to resolutions passed by both Houses of the Oireachtas and the terms of reference were set out at length therein. Two of the specific matters which the tribunal was charged with investigating were set out at paragraphs 4 and 5 as follows "4. (a) The identity of all recipients of payments made to political parties or members of either House of the Oireachtas, past or present, or members or officials of a Dublin Local Authority or other public official by Mr Gogarty or Mr Bailey or a connected person or company within the meaning of the Ethics in Public Office Act 1995, from 20 June 1985 to date, and the circumstances, considerations and motives relative to any such payment;

(b) Whether any of the persons referred to at sub-paragraphs 3(ii) and 3(iii) above were influenced directly or indirectly by the offer or receipt of any such payments or benefits.

5. In the event that the Tribunal in the course of its inquiries is made aware of any acts associated with the planning process which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries."

Section 1(1) of the Tribunals of Inquiry (Evidence) Act 1921 authorised the setting up of a tribunal of inquiry where both Houses of the Oireachtas resolved that it was expedient to do so for inquiring into a definite matter described in the resolution as of urgent public importance. The sub-section then gave to the tribunal the same powers as are vested in the High Court in respect of enforcing the attendant of witnesses and examining them on oath, affirmation or otherwise and compelling the production of documents. Section 1(2) provides inter alia: "If a person . . . being in attendance as a witness refuses . . . to produce any documents . . . in his power or control legally required by the tribunal to be produced by him, or to answer any question to which the tribunal may legally require an answer . . . that person shall be guilty of an offence."

Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 purported to give very wide powers to the tribunal by providing that a tribunal may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that court in respect of the making of orders.

Finally, section 4 of the Tribunals of Inquiry (Evidence) Amendment Act 1997 provides: "Where a person fails or refuses to comply with or disobeys an order of a tribunal, the High Court may, on application to it in a summary manner in that behalf by the tribunal, order the person to comply with the order and make such other order as it considers necessary and just to enable the order to have full effect."

Mr Justice McCracken said that by orders dated 26 January 1999 and 19 February 1999, the respondent required the third notice party, Mr Redmond, to make discovery on oath of all documents in his possession relevant to the subject matter of the inquiry. The notice party claimed to be unable to comply with this order because the documents in question had been seized by the CAB. Following this claim, the respondent by letter of 22 February 1999 requested the CAB to furnish copies of all documents seized from the notice party, and sent a consent to this action signed by the notice party to the CAB. In April 1999 the respondent made an order requiring the applicant to attend before the tribunal and to produce and furnish to the tribunal copies of the documents set out in the schedule to the order.

The applicant duly attended a public sitting of the tribunal and gave evidence under oath that he claimed privilege in respect of the documents. The grounds on which the privilege was claimed was that it was material obtained for the detection of crime and for the purposes of the statutory remit of the CAB, and that to furnish it would almost inevitably prejudice both the investigations and the fair trial of any person or persons who might be prosecuted or otherwise proceeded against from the said investigations.

When asked by the respondent for the basis of the claim of privilege, the applicant refused to answer any further questions on the grounds that he was advised that it might compromise any claim of privilege.

In the course of legal argument, counsel for the applicant stated that he had specific instructions not to argue for privilege under any heading, but that his submission was that it was a matter for the courts and not for the tribunal to determine whether there was a privilege or not. The respondent subsequently gave a reasoned decision in which he rejected the argument that the tribunal could not determine the issue of privilege, and said that he was satisfied thatthe order was properly made and that no adequate factual or legal basis had been advanced by the applicant in support of the claim of privilege.

On 4 May 1999, the High Court (Mr Justice Geoghegan ) gave leave to the applicant to apply for orders prohibiting the respondent from taking any further steps to require the applicant to produce the documents in question and quashing both the decision of the respondent and the summons of 19 April 1999. The applicant was also given leave to apply for declarations that the decision was made ultra vires, that it was in breach of the provisions of the Constitution, and in particular Article 34.1 thereof, and that it was made in breach of the principles of natural and constitutional justice and in particular in breach of the principle of nemo judex in causa sua. The applicant had also applied for a declaration that the documents were privileged or alternatively an order of mandamus directing the respondent to invoke the statutory procedures provided for by section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 in order to have the issue of privilege determined by the High Court.