Supreme Court allows appeal regarding mobile phone but dismisses claim about medical records and other evidence transfer.

THE SUPREME COURT

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

282/03

BETWEEN

JASON BRADY

APPLICANT / APPELLANT

-v-

DISTRICT COURT JUDGE GERARD HAUGHTON, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT delivered the 29th day of July 2005, by Murray C.J.

1. In these proceedings the applicant / appellant (hereinafter the appellant) challenges the lawfulness of certain procedures carried

our pursuant to s. 51 of the Criminal Justice Act, 1994 giving effect to a request received from the Crown Prosecutions Service of the

United Kingdom for assistance in obtaining evidence in the State in connection with a criminal investigation into an unlawful killing

being carried on in the United Kingdom. Section 51 of the Act of 1994, together with the second Schedule of that Act, provides for a

mechanism and procedures which enable the State to fulfil its obligations under the European Convention on Mutual Assistance in

Criminal Matters.

2. The first named respondent, a Judge of the District Court, exercised functions pursuant to s. 51 of the Act whereby he received

certain items of evidence which he decided, having regard to the request, should be furnished to the third named respondent, the

Minister, for the purpose of enabling the latter to transmit them to the Crown Prosecution service in the United Kingdom. The

appellant challenges the lawfulness of the decision of the first named respondent. The grounds and context of that challenge are

dealt with later.

Background Facts

3. In December 2000 the appellant was arrested by the Garda Síochána in respect of criminal offences unrelated to the criminal

investigation in the United Kingdom with which these proceedings are concerned. While the appellant was under arrest the Gardaí took

possession of certain items of his property. The appellant subsequently pleaded guilty to offences in this jurisdiction connected with

his arrest and was duly sentenced. By letter dated 20th December, 2001 the United Kingdom prosecuting authority requested

assistance in relation to their investigation into offences of murder, causing grievous bodily harm with intent and burglary. That

request was supplemented by a further letter dated 21st February, 2002 from the same authority in the United Kingdom. The request

included one for the delivery to the United Kingdom authority items of clothing attributable to the appellant as well as a photograph of

the appellant and a request that he be medically examined for any injuries he may have sustained during an incident stated to have

occurred in the United Kingdom on the 10th December, 2001. The request is referred in more detail later in the judgment.

4. On 5th March, 2002 the appellant served an application pursuant to the Police (Property) Act, 1897 seeking the return of the

property which the Gardaí had taken from him in the course of his arrest in December 2000. This application was made returnable

before the District Court on 26th March, 2002. That application relates to property, namely clothing of the appellant, which is also the

subject matter of the request and which the District Court Judge decided should be furnished for transmission to the UK authorities

pursuant to s. 51.

5. On 14th March, 2002 Mr. James Clerkin, a civil servant in the Department of Justice, on behalf of the Minister for Justice, Equality

and Law Reform (hereinafter the Minister) nominated Judge Gerard Haughton, a Judge of the District Court (hereinafter the first

named respondent) to receive, pursuant to s. 51 of the Act of 1994, evidence to which the aforementioned request related.

6. On 19th March, 2002 two witness summonses were issued in respect of two persons, one of whom is the sister of the appellant

and the other being her husband, requiring their attendance at a sitting before a Judge of the District Court in Dublin for the purpose

of giving evidence on certain specified matters related to the subject matter of the request made by the British authority. These

witness summonses purported to be issued by the District Court and signed by a judge of that court.

7. On 25th March, 2002 the first named respondent sat in a District Court in Dublin in accordance with s. 51 of the 1994 Act for the

purpose of exercising his function to receive evidence related to the request. In the course of that sitting he heard oral evidence from

certain witnesses and submissions from counsel on behalf of the Minister. He decided that most of the property, that is to say the

clothing, referred to in the Police Property Act application be furnished to the Minister for transmission to the requesting authority. He

also appears to have decided that the content of the appellant’s medical files, as held by the prison authorities, be furnished to the

Minister for transmission. On the same date the first named respondent fixed a date for the hearing of evidence of the two civilian

witnesses in respect of whom witness summonses had been issued. In the event evidence from these two witnesses was never

heard.

8. On 11th April, 2002 on the hearing of the Police Property Act application the President of the District Court ordered that the

property in question be retained in the possession of the Gardaí pending further order of the District Court.

Section 51 and Second Schedule of the Criminal Justice Act, 1994

9. The Criminal Justice Act, 1994 is one which deals with a wide range of matters relating to the enforcement of the criminal law,

within and without this jurisdiction, and serves a variety of purposes. The long title to the Act is indicative of this and states:

“An Act to make provision for the recovery of the proceeds of drug trafficking and other offences, to create an offence of

money laundering, to make provision for international cooperation in respect of certain criminal law enforcement

procedures and for forfeiture of property used in the commission of crime and to provide for related matters.” (emphasis

added)

10. It gives, for example, effect to certain State obligations under the United Nations Convention against Illicit Traffic in Narcotic

Drugs and Psychotropic Substances (1988) and that Convention is expressly referred to in the interpretation section.

11. Although the European Convention on Mutual Assistance in Criminal Matters is not referred to in the Act it is evident from a

perusal of s. 51 and the terms of the Convention, that s. 51, with its associated second Schedule in the Act, is designed to formally

facilitate the State in fulfilling such obligations as it may have under that Convention. As noted above, it was also common case in

this appeal that this is the object and purpose which s. 51 serves. Although the terms of the Convention and in particular of s. 51 are

referred to in more detail below I do not consider it necessary in these circumstances, to analyse their respective provisions for the

purpose of demonstrating this evident relationship between the two.

The Statutory Provisions

Section 51

51.-(1) This section shall have effect where the Minister receives-

(a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting

authority in such a country or territory, or

(b) from any other authority in such a country or territory which appears to him to have the function of making

requests of the kind to which this section applies,

a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted,

or a criminal investigation that is being carried on, in that country or territory.

(2) If the Minister is satisfied-

(a) that an offence under the law of the country or territory in question has been committed or that there are

reasonable grounds for suspecting that such an offence has been committed, and

(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation

into that offence is being carried on there,

he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which

the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.

(3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) ( a ) and (b) of this section the

Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to

him to be appropriate.

(4) In this section "evidence" includes documents and other articles.

(5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by

the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be

furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the

request.

(6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in

pursuance of a notice under subsection (2) of this section.

The Second Schedule to the Act

TAKING OF EVIDENCE FOR USE OUTSIDE STATE

Securing attendance of witnesses

1. The judge shall have the like powers for securing the attendance of a witness for the purpose of the proceedings as the

District Court has for the purpose of any other proceedings before that court.

Power to administer oaths

2. The judge may in the proceedings take evidence on oath and may administer an oath for that purpose.

Privilege of witnesses

3. (1) A person shall not be compelled to give in the proceedings any evidence which he could not be compelled to give-

(a) in criminal proceedings in the State, or

(b) subject to subparagraph (2) of this paragraph, in criminal proceedings in the country or territory from which the

request for the evidence has come.

(2) Subparagraph (1) (b) of this paragraph shall not apply unless the claim of the person questioned to be exempt from giving

the evidence is conceded by the court, tribunal or authority which made the request.

(3) Where such a claim made by any person is not conceded as aforesaid, he may (subject to the other provisions of this

paragraph) be required to give the evidence to which the claim relates but the evidence shall not be transmitted to the court,

tribunal or authority which requested it if a court in the country or territory in question, on the matter being referred to it,

upholds the claim.

(4) Without prejudice to subparagraph (1) of this paragraph, a person shall not be compelled under this Schedule to give any

evidence if his doing so would be prejudicial to the security of the State; and a certificate signed by or on behalf of the

Minister to the effect that it would be so prejudicial for that person to do so shall be admissible as evidence of that fact.

(5) Without prejudice to subparagraph (1) of this paragraph, a person shall not be compelled under this Schedule to give any

evidence in his capacity as an officer or servant of the State.

(6) In this paragraph references to giving evidence include references to answering any question and to producing any

document or other article and the reference in subparagraph (3) of this paragraph to the transmission of evidence given by a

person shall be construed accordingly.

Transmission of evidence

4. (1) The evidence received by the judge shall be furnished to the Minister for transmission to the court, tribunal or authority

that made the request.

(2) If in order to comply with the request it is necessary for the evidence to be accompanied by any certificate, affidavit or

other verifying document, the judge shall also furnish for transmission such document of that nature as may be specified in

the notice nominating the judge.

(3) Where the evidence consists of a document, the original or a copy shall be transmitted and, where it consists of any other

article, the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary

in order to comply with the request.

Supplementary

5. For the avoidance of doubt it is hereby declared that the Bankers' Books Evidence Act, 1879, applies to the proceedings as

it applies to other proceedings before a court.

12. The import and general application of s. 51 of the Act is considered later in this judgment.

The Convention

13. The backdrop to s. 51 of the Act of 1994 is, as already mentioned, the European Convention on Mutual Assistance in Criminal

Matters adopted in 1959 and which entered into force in 1962. An additional protocol to the Convention was adopted in 1978 for the

purpose of extending mutual assistance to fiscal offences and is not relevant in the circumstances of this case. A second additional

protocol to the Convention was adopted in November 2001 but is not relevant as post-dating the 1994 Act. The Convention of 1989

was adopted under the aegis of the Council of Europe and has approximately 30 States as contracting parties, including Ireland and

the United Kingdom, who are the two countries concerned in this case. Thus the Convention is an instrument of public international

law and as such it has no direct effect within the State, absent any statutory provision so providing.

14. The Convention was signed by Ireland in 1996 and its instrument of ratification deposited on 28th November, 1996. What appears

to have happened is that the Oireachtas enacted the Act of 1994, and in particular s. 51, so that the State would be in a position to

sign and ratify the Convention by ensuring that as and from the date of ratification the State had in place the necessary statutory

procedures to give effect to it.

15. Article 3 of the Convention provides:

“1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter

and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting

articles to be produced in evidence, records or documents.

2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the

requested Party shall comply with the request if the law of its country does not prohibit it.

3. The requested Party may transmit certified copies or certified photostat copies of records or documents requested, unless

the requesting Party expressly requests the transmission of originals, in which case the requested Party shall make every

effort to comply with the request.”

16. Of course mutual assistance between States in criminal matters, particularly in the case of providing information or evidence, has

never been wholly dependent on international conventions or agreements as such. The general duty to execute a request for judicial

assistance by a foreign court is based on comity between nations, absent a specific treaty obligation, a principle also to be found in

the Vienna Convention which in turn reflects the general principles of international law. Moreover while bilateral and multilateral

agreements can and do facilitate or promote such mutual assistance, states, particularly neighbouring states, or those with close

ties, have always engaged in practical assistance through administrative channels. This is particularly true of police and customs

agencies and no doubt increasingly, regulatory agencies. Such cooperation invariably takes place in accordance with a policy of

cooperation and of course within the ambit of the law of the State concerned. Such information or evidence may relate to the

movement of stolen goods, the proceeds of crime, drugs or related to the movement of persons engaged in such offences or in people

trafficking, or their previous convictions. All such matters may be relevant to the detection and charge of criminals or ultimately as

evidence at a trial. Another example of where such cooperation can arise is where the police of one State take a written statement

from a potential witness willing to do so, for transmission to another jurisdiction. Of course certain forms of cooperation or specific

procedures in relation to such matters may require express statutory authority or may be otherwise desirable in order to give effect to

common obligations or rules or procedures under a bilateral or, as in this case, a multilateral treaty.

The Request from the United Kingdom

17. It is in the context of the Convention and particularly s. 51 of the 1994 Act that the request received by the Minister, as the

relevant authority in Ireland, was first sent on 20th December, 2001. In its opening words it requests the assistance of the Minister

pursuant to the provisions of the Convention “in relation to a criminal investigation being conducted by officers of the West Midlands

Police Force”.

18. The request then recites how the Crown Prosecution Service and in particular a Crown prosecutor is a designated judicial

authority within the meaning of Article 24 of the Convention. The request then goes on to state that it concerns a criminal

investigation. The request also sets out a summary of facts relating to a burglary at a Technology Centre in Birmingham, United

Kingdom, on 10th December, 2001. I do not think it is relevant to go into the full facts of that event except, by way of summary, to

say that a man who was confronted on attempting to leave the Centre, having allegedly been observed with property which had been

stolen, drove his getaway car over the head and chest of one of the persons attempting to prevent his departure. That person

subsequently died from the injuries he received. The summary of the facts contained in the request also makes it clear that as a

result of police inquiries the appellant is a suspect in relation to these matters and the summary concludes by stating that the

allegation of murder is still under investigation.

19. What may be said to be the substantive part of the request follows the summary of the facts under the heading “Inquiries to be

made” and states as follows:

“The police in England are anxious to obtain any evidence that can link Jason Brady with a murder and other offences. The

investigating officers in England would therefore ask that they be permitted to carry out the following inquiries in Ireland:

1. To invite Jason Brady, to be interviewed under caution, concerning his movements on Monday the 10th December and

his involvement in the burglary and murder of Mr. Tandy and wounding of Mr. Hillstead.

2. Further to interview Brady concerning his involvement in the theft of a red Toyota motor vehicle … and his

movements between his taking on the 23rd November and the time of the murder.

3. To arrange for Jason Brady to be medically examined for any injuries he may have sustained during the incident.

4. To request a current photograph of Mr. Brady.

5. To request a current DNA sample of Mr. Brady.

6. To request a set of fingerprints of Mr. Brady.

7. To serve him with the appropriate documents under the Codes of Practice under the Police and Criminal Evidence Act,

1984 in relation to identification procedures.

8. To seize all clothing attributable to Jason Brady and secure it in a manner which will allow a subsequent examination

of the clothing by forensic scientists.

9. That inquiries be made to establish any subscriber or registration details relating to any mobile telephone used by or

seized from Jason Brady and obtained billing details relating to the usage of this mobile phone for the period from the

23rd November, 2001 to the 19th December, 2001.

10. To make inquiries with and take statements from family members and associates of Jason Brady in Ireland after his

return date to Ireland and any other information relevant to this inquiry.

11. To make inquiries and take statements in relation to any alibi that Jason Brady may provide during any interview

under caution.

12. To obtain warrants to search any address provided by Jason Brady in Dublin where it may be suggested he has

resided during the period covered by this investigation.

13. To conduct any other inquiries and interview any other witnesses that are identified in or may become relevant or

necessary in the course of the investigation and arising from any of the inquiries listed above.

In relation to the above inquiries paragraphs 1 - 6 it is accepted that Jason Brady may only be invited to cooperate in the

procedures set out. It is also accepted and desired that he should be given the opportunity of seeking legal advice from a

lawyer of his choice who can advise him on the position in both English and Irish criminal jurisdictions insofar as they are

applicable.”

Supplement to the request

20. On February 21st a further letter was sent by the Crown Prosecution Service of the United Kingdom. This set out further factual

information concerning the circumstances of the alleged offence for the stated purpose of bringing the addressee up to date with the

inquiries being conducted. The letter also notes that the Irish authority intends to proceed pursuant to s. 51 of the Criminal Justice

Act, 1994 and it goes on to say:

“I would please ask you to utilise the court procedure under that section in relation to the items requested at 3, 4, 6, 8 and 9

of my letter dated 20th December.”

21. It then went on to ask that consideration be given to requesting the two persons, a sister of the appellant and her husband, be

called to give evidence pursuant to s. 51 of the Act of 1994.

Nature and scope of the request

22. Although the request commences with a reference to the European Convention on Mutual Assistance in Criminal Matters its format

is very informal and adverts to many matters which have nothing to do with the subject matter of these proceedings that is to say

the execution of letters rogatory for the purpose of procuring evidence or transmitting articles as provided for in Article 3 of the

Convention or the transmission of evidence as provided for in s. 51 of the Act of 1994. A number of the matters requested were

acknowledged to be contingent on the cooperation of the appellant himself.

23. However it is important to emphasise that, as indicated above, in a letter supplementing the request and dated 21st February,

2002 the authorities in the United Kingdom specified the particular matters which they requested should be made subject of

procedures pursuant to s. 51 of the Criminal Justice Act, 1994. These were the items at 3, 4, 6, 8 and 9 of the original request which

is cited above. In addition the authorities requested that two witnesses be required to give evidence, namely a sister of the appellant

and her husband.

24. Accordingly for the purpose of these proceedings the items of evidence sought by the United Kingdom authority were as follows:

(a) Results of a medical examination of the appellant for any apparent injuries.

(b) A photograph of the appellant.

(c) A set of fingerprints of the appellant.

(d) Clothing of the appellant.

(e) Subscriber or registration details relating to any mobile telephone used by or seized from the appellant as well as billing

details in relation to usage of a mobile telephone during a specified period.

(f) Evidence from a sister of the appellant and her husband.

25. As regards item (a) above the State proceeded to respond to this request as if it were a request for the medical records of the

appellant held by the prison authorities arising from the appellant’s custody on foot of the prison sentence imposed on him. In the

course of the hearing of this appeal counsel for the Minister undertook that those medical records would not be transmitted and

reference to the position in this regard is referred to later in this judgment.

26. As regards the two witnesses referred to at (f) above, although they were summonsed to give evidence for the purpose of

answering the specified questions they never did so and the matter was not pursued further. Accordingly nothing really turns on this

aspect of the request except to the extent the appellant relies on the issuing of the summonses to those two witnesses by the

District Court in support of one of his arguments. This again is referred to later in the judgment.

27. It is however important to note that there was no request from the United Kingdom for the transmission to them of the evidence

or statement of any witness other than those two persons. The request to the relevant authority in Ireland for the application of s.

51 of the 1994 Act was confined, apart from the two witnesses, to the articles referred to above and the information concerning the

mobile phone.

28. Section 51 distinguishes between requests for assistance in obtaining evidence in connection with criminal proceedings that have

been instituted and in connection with a criminal investigation that is being carried on. The request in this case has been made only

for the stated purpose of a criminal investigation and not for the purpose of criminal proceedings and of course no proceedings had

been initiated, at least so far as the appellant is concerned, in connection with the criminal investigation at the time of the request.

29. It was submitted on behalf of the State, and in my view correctly, that evidence transmitted by the Minister in this case pursuant

to s. 51 could not be used for a purpose other than the investigation and therefore not for the purpose of a trial unless the Minister

consents to a subsequent request to do so. This of course the Minister would be entitled to do in an appropriate exercise of his

discretion in that regard. (See s. 51(5) above.)

The “Order” of the District Court

30. After the conclusion of the procedures pursuant to s. 51 of the Act during which the designated judge had received evidence

relevant to the request he purported to make an Order of the District Court in the following terms:

“Hand over all items in police property application other than rings and photo albums. Items to be transferred to investigating

authorities including roll of film and fingerprints and photograph of Mr. Brady.”

31. There are a number of observations concerning this “Order” which I think I should make at this stage. First of all it is in the form

of an Order of the District Court entitled Courts Act, 1971. For reasons explained later, and which are largely self-evident, the

designated judge was not acting as a Judge of the District Court in exercising his functions under s. 51 and therefore no Order of the

District Court, as such, could be made. This however does not affect the fact that, again for reasons set out later in this judgment,

he did exercise his designated functions pursuant to s. 51 and reached a decision as to the evidence which should be furnished to the

Minister for transmission to the United Kingdom authority. In that sense the “Order” in question may be seen, for present purposes, as

evidence of the decision made by the designated judge concerning the matters which in fact he decided should be furnished to the

Minister for transmission pursuant to s. 51.

32. Furthermore, I think it should be noted at this stage that the judicial review proceedings have proceeded on the assumption, by

both parties, that the District Court Judge had decided that the prison medical records of the appellant should be furnished to the

Minister for transmission. That is the position until counsel on behalf of the respondents undertook to the Court that the Minister

would not transmit any such medical records. The issue concerning the medical records is more specifically dealt with later in this

judgment.

Grounds upon which s. 51 proceedings are challenged

33. The grounds upon which the appellant has sought to impugn the procedures which took place pursuant to s. 51 of the Act and, in

effect, restrain the Minister from transmitting the evidence in question to the requesting authority may be summarised as follows:-

(a) The procedures followed before the District Judge, and the Order made, constituted the administration of justice affecting

the interests and rights of the appellant by reason of which he was entitled to notice of, and be present at, the proceeding

before the District Judge.

(b) The procedures under s. 51 were carried out in breach of the appellant’s rights to private property, privacy, bodily integrity

and trial in due course of law. It was also submitted that he was entitled to due notice of the procedures in accordance with

fair procedures guaranteed by the Constitution.

(c) The procedure adopted under s. 51 had the effect of frustrating the appellant’s application under the Police Property Act,

1897 and amounted to an abuse of process.

(d) There were matters included in the determination of the District Court Judge which were not requested by the requesting

authority. This was particularly so with regard to the medical records.

(e) The evidence received on oath by the District Court Judge pursuant to s. 51 could, without more, be admissible pursuant to

s. 3(8) of the of the Criminal Justice (International Cooperation) Act, 1990 at any trial of the appellant in that country without

he having had an opportunity to cross-examine any witnesses. Fair procedures required that he be given an opportunity to

cross-examine witnesses heard by the designated judge.

(f) As an alternative, it was argued that since the appellant had a right to participate in the s. 51 procedures the section was

unconstitutional in failing to permit that.

The general application of s. 51

34. Before considering the application of the relevant statutory provisions to the circumstances of this case it is important, in

interpreting those provisions, to have regard to their object and the scope of their application. Since s. 51 is capable of applying to a

wide variety of situations its interpretation must, first of all, be approached from a perspective broader than the circumstances of one

individual case.

35. The object of the section is to facilitate cooperation with other countries for the purpose of providing evidence, in the possession

or lawful procurement of the State, in connection with a criminal investigation or proceedings.

36. The section only comes into effect when the Minister has received from an appropriate authority in any country or territory

outside the State, a request for assistance in obtaining evidence in connection with (a) criminal proceedings that have been

instituted; (b) a criminal investigation that is being carried on, in that country or territory. (Section 51(1).)

37. In a case such as the present one it is only necessary for the Minister, having received a request for assistance from an authority

described in s. 51, to be satisfied or have reasonable grounds for suspecting that a relevant offence has been committed and is being

investigated.

38. It is not in issue that the Minister was entitled to apply s. 51 in this case and initiate the procedures under the section.

39. The test is the investigation of an offence and not the investigation of a particular person. One could probably assume that in

most cases a particular person or persons may be identified as being, to a greater or lesser degree, the object of the investigation in

relation to a relevant offence or offences. This is obviously the case in the present instance but the section is clearly intended to

apply to readily envisagable circumstances where the relevant authority in the requesting country seeks evidence in relation to the

commission of an offence even though it has not yet identified any individual as a potential culprit. The evidence sought may be

concerned with the identity or recent movements of a deceased victim or evidence from some person in this jurisdiction who had

witnessed a serious offence and thus in a position to give material evidence concerning the commission of the offence without being

in the position to implicate or identify its currently unknown author. These are just a couple of examples illustrating that the

procedures pursuant to s. 51 may fall to be applied even though they could not then be considered as affecting any identifiable

person.

40. In cases where a requesting authority has, for the purposes of its investigation, identified an actual or potential suspect or

suspects, their status as suspects may vary greatly from one who is already charged with an offence, or who is a prime suspect on

the basis of cogent evidence connecting him or her with its commission, or someone who is very tentatively a suspect (perhaps with

others), whose involvement in the offence the investigation will tend to confirm or exclude.

41. In such cases also the evidence requested for transmission may tend to implicate a particular person or it may only concern the

commission of the offence itself or some fact relating to it without implicating any particular person.

42. Moreover even where the person or persons the subject of the criminal investigation or proceedings is identified the section

applies irrespective of whether the person in question is then actually in the State, in the requesting State or territory, in some other

country or whose whereabouts is unknown at the time. Of course it also applies irrespective of the nationality or citizenship of any

such individual.

43. The foregoing diversity of circumstances underscores the nature of the exercise involved, namely the mutual cooperation between

states in the gathering of evidence in relation to the commission of an offence. They also demonstrate the difficulty, if not

impossibility, of achieving a mutual cooperation in the gathering of evidence if, in all cases, notice to any suspect in an investigation,

however the status of suspect is defined, were to be considered necessary. It is not surprising that the Act of 1994 did not make

provision for notice to be given to such a person.

The “evidence” referred to in s. 51

44. During the course of the hearing there was some discussion as to the meaning or status of the “evidence” requested and to be

transmitted following the procedures under s. 51 of the Act. Counsel for the State was at pains to deprecate any idea that the

evidence to be transmitted in this case had the status or value of evidence at a trial. In the course of the procedure before the

designated District Court Judge the counsel for the State took care to have the evidence identified and recorded in the transcript of

the procedure as particular and numbered exhibits. The State says this was a mistake or at least a mistake insofar as it purported to

confer some particular status on the “evidence”. I am not so sure that it was a mistake but whether it can or not be characterised as

a mistake it does not seem to me to have any great import for this case.

45. There are no particular procedures laid down for presenting evidence to the judge for the purpose of enabling him to receive

evidence to which the request relates.

46. All the section says, in subsection 4, is that “evidence” includes documents and other articles. That provision might not have

been strictly necessary but it avoids any doubt that a request for the transmission of evidence may relate not only to personal or oral

evidence but also to the transmission of articles and documents. It is axiomatic that the term “evidence” may fall to be interpreted

according to its context. Thus the evidence upon which a person may be convicted is evidence which is properly determined as being

admissible at a criminal trial in accordance with the rules of evidence. On the other hand the term “evidence” when used in relation to

an evidence gathering exercise concerning an investigation of a criminal offence must have a broader and perhaps more ordinary

meaning. It may, for example, ultimately transpire at a trial that evidence gathered in the course of a criminal investigation is

considered irrelevant or that its prejudicial value before a jury outweighs its evidential value, to give but two examples. An

investigation is not subject to such rules. Evidence may be very material to the investigation of an offence and lead ultimately to the

exclusion of a particular hypothesis or suspicion and allow the investigators to concentrate on more profitable avenues of

investigation. The shorter Oxford dictionary defines evidence, inter alia, as facts or testimony in support of a conclusion, statement

or belief or against such conclusion etc. and as “information (in the form of personal or document testimony or the production of

material objects) tending or used to establish facts in a legal investigation; a piece of information of this kind”. I think these

definitions are appropriate and apt for present purposes in the context in which the term “evidence” is used in the Act.

47. Of course the purpose of a criminal investigation includes the gathering of evidence which tends to identify and prove the author

of a crime and to that extent it may be said that evidence is gathered with a view to tendering it at a criminal trial subject to such

evidence being considered admissible for the purposes of the trial. In the course of a criminal investigation it is commonplace for

police investigators to specially identify items of evidence so that their identity and custody is preserved throughout the investigation

and their potential introduction at trial, if material and admissible, facilitated.

48. In short I do not think anything turns on whether the procedure adopted by the solicitor during the course of the procedure

before the designated judge was a mistake or simply an ad hoc approach.

49. Section 51(1) having expressly distinguished between a request for the purpose of a trial and for the purpose of an investigation,

the request from the UK authorities in turn expressly confines itself to having been made for the purpose of an investigation (and it

would be difficult to see how it could be otherwise since the applicant has not even been charged with an offence). Counsel for the

Minister stated, which was not contested, that s. 51(5) applies in this case which means that the evidence transmitted may not be

used for any purpose other than for which it was requested, and therefore may not be used at a trial, at least without the prior

consent of the Minister as provided for in that subsection.

50. Accordingly, for the purpose of the present case I think it is appropriate to treat any evidence determined by the designated

judge as being transmissible pursuant to s. 51 in accordance with the Request in this case as evidence for use in the investigation

only. If the UK authorities later wish to use the evidence at a trial they would, as pointed out by counsel for the Minister, have to

seek the Minister’s consent as provided for in s. 51(5). I think that is putting its evidential status at its highest.

51. Before dealing with the more substantial points raised by the appellant I wish to identify two matters which should by excluded

from the effect of the decision of the designated judge.

Medical Records

52. The first of these relates to evidence given by a medical doctor who produced his medical records before the designated judge.

53. First of all it must be said that this evidence went beyond the terms of the request. The function of the designated judge is to

receive only that evidence which is specified in the request for assistance on foot of which the Minister acted when initiating the

procedures under s. 51. The judge has no investigative role and the fact that additional evidence or evidence associated with a

specific request, but falling outside its ambit, could be helpful does not entitle him to receive that evidence. If the Gardaí, or other

State authority, come across evidence not mentioned in a request which may be helpful to the investigation of a criminal offence in

another jurisdiction there may be other channels or scope for a further request which would enable them to assist the investigating

authority but s. 51 has no application to such evidence.

54. It also appears that the medical records relate to medical treatment of the appellant while he was in custody. They would

therefore arise out of a doctor / patient relationship. Any disclosure of such records gives rise to a number of inter-related questions

concerning law and ethics. The specific request from the UK authorities was that arrangements be made to have the appellant

medically examined for any injuries he may have sustained during the incident which gave rise to the investigation.

55. Where a prisoner is medically examined on admission to custody in a prison for the purpose of recording his physical condition,

including any evidence of apparent injury, it may well be argued that this does not constitute medical treatment or otherwise does

not derive from a doctor / patient relationship. However, that is not the situation in this case because we are concerned with his

prison medical records created in connection with his treatment there. Moreover, the fact that the doctor in question was summoned

to give evidence of the medical records by means of a summons which purported to be issued by a court, the District Court, may

have had an overriding influence on any ethical qualms he may have had about disclosing the medical records. He may have felt that

he was being required to disclose them by order of the court and thus refrain from raising ethical or legal objections to disclosing

those records. Of course there are circumstances under which a doctor may be required to disclose such records to the Gardaí and

indeed circumstances under which a doctor may be under a duty to report a crime notwithstanding a doctor / patient relationship.

However none of these matters arose for any detailed consideration during the course of the hearing because, the court having

indicated the concerns which this evidence gave rise to and in particular the fact that it was outside the ambit of the Request,

counsel for the State gave an undertaking on behalf of the Minister that the medical records would not be transmitted to the UK

authorities.

56. It seems to me clear that the medical records tendered before the judge fell outside the ambit of the request pursuant to s. 51

but since other issues were not fully argued and the Minister’s undertaking has rendered this issue moot I consider it appropriate in

the circumstances that no order be made in relation to the evidence concerning medical records.

Mobile Phone

57. The second matter concerns the mobile phone. In the course of giving evidence in the procedures before the designated judge,

the Garda witness produced a mobile phone which had been obtained by the Gardaí from the appellant at the time of his arrest. The

designated judge decided that this item should also be furnished to the Minister for transmission to the UK authority. According to the

transcript this was because the designated judge considered the item relevant to the investigation. He may or not have been correct

in that but since his sole statutory function is to only receive evidence specified by the request, he had no power or function to

receive any evidence which is outside the ambit of that specified in the request. So far as any mobile phone was concerned the

request confined itself to seeking information concerning the usage of any mobile phone of the appellant and it did not contain any

request in respect of any mobile phone instrument notwithstanding the request presumed its existence.

58. In the circumstances outlined it was not within the powers being exercised by the District Court Judge to receive the mobile

phone as evidence or furnish it to the Minister for transmission to the requesting authority.

59. I now turn to the other grounds relied upon by the appellant.

The Administration of Justice

60. One of the primary contentions of the appellant is that in exercising his functions pursuant to s. 51 of the Act the designated

judge was engaged in the administration of justice. Therefore, he contends, he was entitled to be a party to those proceedings as a

constitutional right. Section 51 should be interpreted as requiring that notice be given to him of the matter pending before the

designated judge.

61. The provision and Second Schedule in question are largely, although not exclusively, procedural. The long title of the Bill states,

inter alia, “… make provision for international cooperation in respect of certain criminal law enforcement procedures …”.

62. It confers a power on the Minister to transmit evidence to the requesting authority in compliance with a request having followed

the procedures provided for.

63. Save with one exception, it does not confer any new powers on the Minister or other authority for the gathering or obtaining of

evidence. It does not confer any new powers for the search or seizure of “documents” or “articles” included in the definition of

“evidence” in subsection 4 of s. 51. Therefore the power of the Minister to transmit evidence is, in principle, limited to such evidence

as is in the lawful possession of the State or may lawfully be procured by it.

64. The exception I refer to is the power conferred on the designated District Court Judge to summons witnesses to give evidence

under oath, including the production of documents or articles. Such a power does not of itself engage the administration of justice,

being a power which may be, and frequently has been, conferred on individuals and tribunals exercising administrative functions.

65. In the case of Salinas de Gortari –v- Smithwick [2002] IR 553 McGuinness J., as a Judge of the High Court, as she then was, in

expressing the view, with which I agree, that the procedure pursuant to s. 51 is sui generis, also stated:

“Firstly, it is necessary to keep in mind that the proceedings before the respondent in the District Court under s. 51 of the Act

of 1994 were not a trial and were not the administration of justice. … The s. 51 procedure is a procedure governed by statute

and must be considered within the bounds of that statute.”

66. The function of the District Judge referred to in the section is limited to receiving evidence and furnishing it to the Minister.

Paragraph 4.1 of the Second Schedule states “The evidence received by the judge shall be furnished to the Minister for transmission

to …”. The evidence which he can receive is in turn limited to that which is appropriate for the purpose of giving effect to the

request. The designated judge simply engages in a process of identifying what evidence before him has been sought in the request

and furnishing it to the Minister.

67. It is perhaps trite at this stage to state that the designated judge makes no finding or determination concerning guilt or

innocence. Section 51 is, in a sense, no more than a procedural conduit for the purpose of enabling the Minister to transmit evidence

in accordance with the obligations of the State under the Convention.

68. The judge’s task therefore is purely administrative. He conducts no inquiry or investigation and makes no findings or conclusions

concerning the conduct of any person. He has no function in evaluating the weight or credibility of any evidence tendered before him.

His only function is to marry so to speak the evidence tendered with that sought in the request.

69. The process before the judge terminates once he has received the evidence to which the request relates and all that remains is

to furnish it to the Minister for transmission to the relevant authority.

70. He exercises that role simply because s. 51 of the Act allows the Minister to designate a Judge of the District Court for that

purpose. The District Court, as a Court, has no role or function in the matter. He does not act as a Judge of that Court but as a

persona designata pursuant to s. 51. Being a function which is distinct from his function as a Judge of the District Court an individual

Judge cannot be compelled to exercise that function and no doubt, as is invariably the case in these matters, a Judge willingly agrees

to do so, presumably after the President of the District Court has been consulted.

71. If the District Judge was required to act as a Judge administering justice, s. 51 of the Act of 1994 could hardly pass constitutional

muster given the power of the Minister under the section to designate the judge who will deal with the matter on the one hand and

the guarantees of judicial independence to be found in the Constitution, on the other.

72. There are no doubt very good reasons why the task of receiving that evidence is given to a judicial personage, if only as a

persona designata. Letters rogatory, which is the term used in Article 3 of the Convention, is traditionally a request from judicial

authority (however that is defined by an applicable convention or treaty) to judicial authority transmitted via the respective

Departments of Foreign Affairs or Justice in the States concerned. Moreover, the fact that the evidence was received in the first

instance by a Judge adds a stamp of authenticity and therefore reliability as to the source of the evidential material. Perhaps of more

relevance, is the fact that in many of the civil law systems to be found in the countries which are members of the Council of Europe

evidence in criminal investigations is gathered by an investigating Magistrate or Judge, or a public prosecutor who may have judicial

status.

73. In the light of the foregoing it is in my view patently evident that the designated judge is not exercising a judicial function in the

administration of justice but solely concerned with the application of procedures with a view to achieving certain administrative

objectives.

74. Even though a comprehensive statement as to what may constitute the “administration of justice” has proved elusive the

functions of the designated judge could not be said in any sense to fall within the notion of the administration of justice as discussed

in the case-law of this Court and in particular McDonald –v- Bord na gCon [1965] IR 217. Those are my conclusions on the substance

of the appellant’s contention that the designated judge was engaged in the administration of justice but before terminating my

consideration of this aspect of his arguments I should address the reliance which he placed in support of this contention on the fact

that the summonses issued to witnesses in this case were issued in the name of a court, namely the District Court, under the

authority of a District Court Judge acting as such. He also relied on the fact that the decision of the designated judge at the

conclusion of the procedures was in the form of an Order of the District Court. The appellant submitted that the invocation of the

authority of the court in these circumstances supported his submission that what was involved was the administration of justice.

The use of Court forms

75. It would seem that the Department responsible for the operation of this section did not give any prior consideration as to how the

section might be operated in practice by those called upon to do so. All the indications are that the section has been applied without

any prior reflection as to precisely what was entailed, how the persons called upon to act should carry out their functions and the

precise parameters of the procedures to be followed. This is evident, inter alia, from the fact that the first named respondent, for the

purpose of furnishing the evidence to the Minister, purported to do so by way of an Order of the District Court entitled “Courts Act,

1971, s. 14, Certified Copy Order”, with a reference to the Rules of the District Court. The Order is also purported to be signed by the

first named respondent as a Judge of the District Court assigned to the said district. In addition, when witness summons were issued

requiring the attendance of witnesses they were entitled, “The District Court, Dublin Metropolitan District” and purported to be signed

by a Judge of the District Court. In addition certain items of evidence, not the subject of a request from the relevant British

authority, were received as evidence simply because, understandably, it was considered that such items might also be of assistance

to those authorities in their investigation. In mentioning these matters I do not wish to criticise those directly involved who had to

deal with an apparently little used procedure on an ad hoc basis as soon as the procedures under s. 51 were put in operation without

the benefit of procedural guidelines on how they should be operated in practice. This is best achieved after a reflective consideration

of what is involved and what is required independent of and prior to the pressures which inevitably arise when the section is operated

in a particular instance. I would add in passing that the UK authorities, given what may at least be described as the very loose form

of the request, do not appear to have applied themselves either to the appropriate form and content of a request pursuant to the

Convention. This did nothing to assist the correct processing of the Request.

76. The appellants have relied on these matters as demonstrating that the District Judge was involved the administration of justice.

However the use of Court forms and the like were in my view, for the purposes of transmitting to the Minister evidence received in

accordance with the request, only excess adornments to purely administrative procedures. Their use could not convert what is by its

very nature an administrative procedure into the administration of justice. It neither added to nor took from the function of the

designated judge so far as the items of evidence which he properly received is concerned. That is not to say that in another context

the purported use of a Court form issued under the authority of the District Court could not have other consequences. This could

arise, for example, if it were sought to sanction a witness so summoned before the District Court Judge pursuant to s. 51 for having

failed to obey the Court summons. Then the consequences of using the wrong form would be more than formal and the witness so

summoned probably entitled to question the binding authority of the summons wrongly purporting to issue from a Judge in his capacity

as a Judge of the District Court rather than a persona designata pursuant to s. 51.

The right to notice and participation

77. Other grounds relied on by the appellant is that he had a right to be notified of the procedure before the District Court Judge and

to participate in the proceedings essentially because he was entitled to fair procedures in a matter which concerned a criminal

investigation and could ultimately affect a criminal trial in which he was the accused. He also sought to rely on the assertion that

under s. 3(8) of the Criminal Justice (International Cooperation) Act, 1990 of the UK a record of the evidence received under oath by

the District Court Judge may be tendered in evidence at a trial in the United Kingdom should he in the future be required to stand trial

in that country in relation to the charges being investigated. This meant, it was submitted, that a witness’s evidence recorded under

oath before the District Court Judge may, without more, be admitted, by virtue of that statutory provision, in evidence at a trial in

which he is the accused, without he having had an adequate opportunity to challenge that evidence in the District Court. This would

prejudice his constitutional right to a fair trial.

78. Thus there are two distinct reasons advanced in this context, firstly because the procedures involve the receiving of evidence for

the purpose of a criminal investigation which may be prejudicial to his interests which he should be able to defend before the District

Court Judge, and secondly, it may be used unfairly at a trial in the United Kingdom in which he would be the accused.

79. The first part of the submission of the appellant suggests that the constitutional requirement of fair procedures is implicit in the

operation of s. 51 so as to require notice to be given to any person the subject of the investigation in order that they may attend

and cross-examine any witness called before the designated judge. Since, as I have already pointed out, no adverse findings or

conclusions are arrived at by the designated judge concerning any individual or his conduct and since the judge is not conducting any

investigation into any individual, the procedures which took place before him cannot be considered in any sense adversarial. It is

axiomatic that criminal investigations must be carried out in accordance with law. For the purpose of a domestic crime, evidence

gathering in this jurisdiction does not normally involve a judge. On the other hand a particular step in that process may involve the

observance of certain statutory requirements including the authority of a judge to proceed. This may apply for example to the

applications for and the issuing of search warrants, the seizure or confiscation of goods or the re-arrest of a person pursuant to s. 10

of the Criminal Justice Act, 1984 which may only be done on the authority of a Judge of the District Court. In none of these instances

is it considered necessary to notify a person who is a suspect or the subject of an application. By definition a criminal investigation is

conducted with a view to gathering evidence which would lead to the identification of the author of a crime and where there is a

sufficiency of evidence this may lead to the putting of such a person on trial. An investigation is not in any sense proceedings.

Section 51 provides for a procedural adjunct to an investigatory process. It may, in a narrow sense, be described as proceedings but

it makes no adjudications concerning any suspect, if any is identified. In substance all that is involved is the identification of evidence

for the purposes of the section, without examination as to its weight, veracity or inferences, if any, to be drawn from it. There is no

determination in this procedure of the rights of an individual in the position of the appellant.

80. One must not lose sight of the fact that the evidence concerned here is simply the transmission of certain articles and information

concerning a mobile telephone to the United Kingdom investigating authority for the purpose of a particular investigation. In the

circumstances I am of the view that the appellant was not entitled as of right, derived from the principles of constitutional justice or

otherwise, to be present and represented in the procedures before the designated judge.

81. For the purpose of the second part of the appellant’s submission he relied upon s. 3(8) of the Criminal Justice (International

Cooperation) Act, 1990, the then relevant United Kingdom statute at the time of the request. Rather unhelpfully counsel for the State

sought refuge in the technicality that reliance on the English statute raised an issue as to foreign law and the relevant UK statute

had not been proved as a matter of fact. Suffice it to say for present purposes that an affidavit sworn by Mr. James Clerkin,

Assistant Principle Officer in the Department of Justice, Equality and Law Reform, sworn and filed on behalf of the respondents, states

at para. 12 “I beg to refer that the Criminal Justice (International Cooperation) Act, 1990 (United Kingdom)”. It is well established

that foreign law which is admitted as a fact by the parties does not have to be proved.

82. Subsection 8 of the 1990 United Kingdom Act provides as follows:

“(8) In exercising the discretion conferred by s. 25 of the Criminal Justice Act, 1988 in relation to a statement contained in

evidence pursuant to a letter of request the Court shall have regard –

(a) to whether it was possible to challenge the statement by questioning the person who made it; and

(b) if proceedings had been instituted, to whether the local law allowed the parties to the proceedings to be legally

represented when the evidence was being taken.”

83. The appellant submits that this means that the evidence taken before the designated judge may be admitted, without more and

by virtue of that subsection, in evidence at a trial in which he is the accused without he having had an opportunity at any stage to

challenge the evidence, subject only to the discretion of a trial judge.

84. I do not think that in the circumstances of this case it is relevant to examine the implications of that subsection in every

circumstance. I would however point out that the subsection must be read in conjunction with s. 25 of the United Kingdom Criminal

Justice Act, 1988 to which it expressly refers and more particularly to s. 23(1) and (2) to which s. 25 in turn makes express

reference. That reference in subsection (8) to s. 25 of the UK Act of 1988 gives that subsection a wholly different dimension to s.

52(7) of the Act of 1994 which was claimed to be in much the same terms as it.

85. Section 25 of the aforesaid Act of 1988 provides, inter alia, for certain matters which a court of trial shall take into account in

exercising its discretion as to whether a statement “which is admissible by virtue of s. 23” nevertheless ought not to be admitted.

Section 3(8) of the Criminal Justice (International Cooperation) Act, 1990 relied upon by the appellant only inserts additional matters

which a court in the United Kingdom, exercising a discretion under s. 25, should have regard to in determining whether a statement

contained in evidence taken pursuant to a letter of request should not be admitted. There are many other matters to be taken into

account by a UK Court to which s. 52(7) of the Act of 1994 makes no reference.

86. The admissibility of a statement taken pursuant to a letter of request can only arise if s. 23 of the UK Act of 1988 applies to such

a statement.

87. Section 23 is a general provision, not concerned specifically with statements contained in evidence taken pursuant to a letter of

request, but applies to any “statement made by a person in a document” and then goes on to provide for the admissibility of a

statement in evidence at a trial if certain conditions are fulfilled such as that the person who made the statement is dead, unfit to

attend as a witness, or is made by a person outside the United Kingdom and it is not reasonably practicable to secure his attendance.

However, one thing is patently clear that the provisions relied upon by the appellant only apply to a statement made by a person in a

document, there are other criteria before any such statement would be admissible but the first criteria that it is a such statement.

88. As already pointed out the evidence which the designated judge has identified as being transmissible by the Minister in

accordance with the request consists only of articles of evidence and information concerning mobile phone usage. It does not involve

the transmission of any statement of any witness and does not includes the transcript as such of the procedures before the

designated judge. The function of the designated judge is to identify the items of evidence. The transmission of statements of

witnesses, sworn or otherwise, does not arise because of the only two witnesses referred to in the request neither did give evidence.

Where a person has appeared before the designated judge and provided information it is sufficient for the designated judge to identify

the information that is required to be transmitted so far as is necessary either by reference to documentation or by reference to a

relevant extract from any record of the procedures before him but the latter does not require him, and therefore not permit him, to

transmit a statement of evidence of that witness. If, for example, documentary records require an explanation so as to identify them

for what they are and to what they refer for the purposes of an investigation, then the designated judge may, in the light of any

evidence received by him, so identify them, or relevant information could be extracted from the written record of the proceedings for

that purpose. Since no evidence or statement from a person has been requested, that does not arise under the request. For example

in this case the various articles referred to may be transmitted as identified as clothing obtained from the appellant on his arrest on a

particular date, his photograph, his fingerprints and the telephone records identifying them as records relating to a mobile phone found

in his possession at the time of his arrest. Then the requesting authority has all the information it requested for the purposes of its

investigation.

89. Although s. 8(3) of the United Kingdom Act of 1990 does not have the import for which the appellant has argued but rather is part

of a general scheme permitting written statements to be admitted in any criminal trial in the United Kingdom in specified

circumstances in accordance with a judicial discretion having regard to certain specified matters, it is not necessary to consider the

section further since the transmission of evidence here does not involve the statement as such of any person.

90. Since the items of evidence to be transmitted in this case are transmitted for the purposes of an investigation only, as counsel

for the respondents pointed out, their use at a trial can only arise if a request for that other purpose is subsequently made to the

Minister and he consents as provided for in s. 51(5) of the Act. Although this does not arise at present, one would expect that in the

ordinary course of events, with a view to mutual cooperation in the prosecution of criminal matters, the Minister would grant his

consent. Should that occur in this case the prosecuting authority in the United Kingdom would be entitled to seek to prove in

evidence the items and information which had been transmitted in this particular case. In order to do so there is no reason to believe

that it could be done other than in the ordinary way of calling the necessary witnesses at a trial in order to identify or prove the

items of evidence for what they are. In that eventuality there is no reason to believe that the appellant would not have a full

opportunity to question such evidence, if he considered it necessary. The appellant has not established that any other approach

could be adopted.

91. In the light of my conclusions that the procedures before the designated judge are purely administrative and an aid to an

investigation into an offence or offences and are not in any sense judicial proceedings before a court the appellant in my view was

not entitled, as a right, to be present or represented in such procedures.

Property Rights and Police (Property) Act Application

92. As I have already mentioned the appellant surrendered to the Gardaí at the time of his arrest for offences committed in this

country, certain items of clothing, as well as other items such as some jewellery and an album of photographs. Subsequent to the

appellant’s conviction of offences in this country he initiated, on or about 5th March, 2002 an application to the District Court

pursuant to the Police (Property) Act, 1897 as amended by s. 5 of the Criminal Justice Act, 1951. The initiating document indicated

that the application would be made to the District Court on 26th March, 2002. According to an affidavit filed on behalf of Mr. James

Clerkin, Assistant Principle Officer with the Department of Justice, Equality and Law Reform, he initiated the procedures pursuant to s.

51 of the Act on behalf of the Minister on 14th March, 2002 without knowledge on his part or the Minister’s part that the appellant

had made a Police (Property) Act application. It was the designated judge that fixed the date for the receiving of evidence on 25th

March, 2002. At that hearing and at the time of making his decision the designated judge was made fully aware of the pending police

property application. As appears from the affidavit of Mr. Patrick Daly, Solicitor, filed on behalf of the appellant, the police property

application was mentioned before the President of the District Court sitting in the District Court on 11th April, 2002. It also appears

from that affidavit that the President directed that the clothing was to remain in garda custody pending further order of the District

Court presumably pending the outcome of these judicial review proceedings.

93. The operation of s. 51 of the Act of 1994 and the determination of an application pursuant to the Police (Property) Act, 1897 are

two distinct statutory procedures. Both were initiated under different statutes for different purposes. There is no evidence

whatsoever in my view from which one could conclude that the s. 51 procedure was initiated so as to interfere with the other. In my

view the submission that there was an unconstitutional interference in litigation analogous to what happened in the Sinn Fein Funds

case (Buckley –v- Attorney General [1950] IR 67) is ill-founded.

94. Section 1 of the Police (Property) Act, 1897 subsection (1) reads as follows:

“Where any property has come into the possession of the police in connection with any criminal charge … or under s. 103 of

the Larceny Act, 1861 … a court of summary jurisdiction may, on application either by an officer of police or by a claimant of

the property, make an order for the delivery of the property to the person appearing to the Magistrate or court to be the

owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as the Magistrate or

court may seem meet.”

95. The subsection must now be read in an adapted form but it is quite clear that the purpose of it is to give back redundant property

in the hands of the police to the owner of it, if that can be ascertained. Otherwise an appropriate order in relation to it must be

made. It is simply a means of finally disposing of property after a case has been concluded or a criminal investigation closed. If

between the time an application under the Police (Property) Act, 1897 is brought and the application is heard another event occurs

which alters the circumstances in which such an application falls to be considered then the application is simply dealt with according

to those circumstances. There is no basis for contending that there is an unconstitutional interference with the application.

96. As matters stand the property is lawfully in the custody of the garda authorities. It is quite clear from the judgment of O’Keeffe J.

in the Supreme Court, with which Ó Dálaigh C.J. and Walsh J. agreed, in Jennings –v- Quinn [1968] IR 305 that in the case of a crime

in this country there is a public interest in the Gardaí, after they have conducted a lawful arrest, being entitled to retain possession

or custody of property whether it be for the purpose of that particular criminal charge or in support of some other criminal charge,

and furthermore, that there is a public interest in the transmitting to another jurisdiction property in the hands of the Gardaí for the

purposes of a criminal prosecution in that jurisdiction. That case was dealing with a somewhat different situation than this case and

was not concerned with the Act of 1994, which it pre-dated. It does however in my view indicate that property which is lawfully in

the hands of the Gardaí may be retained for a lawful purpose and that such a purpose includes the sending of the property out of the

jurisdiction in connection with a criminal investigation or trial in that jurisdiction. The Act of 1994 sets out procedures by which this

may be lawfully achieved. Nor do I think any question of depriving the appellant of his constitutional property rights arises. He

continues to be deprived of his property for a lawful purpose. Moreover both the Act and the Convention provide for means by which

the property is to be returned by the requesting authority when it is no longer required. In my view the grounds relied upon by the

appellant in this context must fail.

Constitutional Issue

97. As an alternative argument the appellant raised an issue as to the constitutionality of s. 51 of the Act of 1994. This was premised

on the proposition that fair procedures as guaranteed by the Constitution entitled him to be present and be represented as a right

before the designated judge of the District Court and if such a right could not be implied from the provision, it should be considered

incompatible with the Constitution. Since he has failed to establish the initial premise that he had a constitutional right to be present

before the District Court Judge the question of the compatibility of the Act with the Constitution does not arise.

Order

98. I would allow the appeal only insofar as to grant a declaration that the Minister is not entitled to transmit to the United Kingdom

authorities the mobile phone referred to in the decision of the designated Judge of the District Court. The issue concerning the

appellant’s medical records, although an important issue, does not require any order in the light of the undertakings given by counsel

on behalf of the Minister. I would disallow the other grounds of appeal. Insofar as the “Order” dated 25th March, 2002 purports to be

an Order of the District Court I would hold that should be quashed by way of certiorari. This does not affect the duty of the District

Court Judge to exercise his powers pursuant to s. 51 of the Act in respect of the evidence properly received by him.