Supreme Court dismisses appeal against Tribunal of Inquiry for rigidly applying confidentiality rules violating constitutional rights.

[2005] IESC 9

THE SUPREME COURT

360/04

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN/

OWEN O’CALLAGHAN

Applicant/Respondent

and

JUDGE ALAN MAHON S.C., JUDGE MARY FAHERTY AND JUDGE GERALD KEYS,

MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Respondents/Appellants

and

TOM GILMARTIN

Notice Party

JUDGMENT of Mr. Justice Geoghegan delivered the 9th day of March 2005

1. I have read with interest the judgment of Hardiman J. and I am in complete agreement with him that the appeal should be

dismissed and the order of the learned High Court judge affirmed. However, I am writing a short separate judgment because I would

prefer to base my own opinion on more limited grounds. This does not mean that I am necessarily disagreeing with anything said by

Hardiman J. but rather, I would prefer to postpone consideration of some of the wider issues which he has raised to a case in which it

was absolutely necessary to decide them.

2. The factual background to the judicial review application the subject matter of this appeal is fully set out in the judgment of

Hardiman J. and I do not intend to repeat the facts in this judgment.

3. The purpose of the Tribunals of Inquiry (Evidence) Act, 1921 is to enable matters of urgent public importance to be inquired into by

an independent tribunal. Largely due to the extensive terms of reference of these tribunals in recent years, they have necessarily

taken a long time. But this would not have been the original intention. If something is of urgent public importance and needs to be

inquired into, a necessary corollary of that requirement is that such investigation be completed as efficiently and quickly as possible.

In Maguire v. Ardagh [2002] 1 IR 385 the majority of this court held that the conducting by a subcommittee of the Oireachtas of an

inquiry into a fatal shooting by the gardaí capable of leading to adverse findings of fact and conclusions (including a finding of

unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good name

was ultra vires in that the holding of such an inquiry was not within the inherent powers of the Houses of the Oireachtas. One of the

major factors that led to that conclusion was the existence of the 1921 Act at the time of the enacting of the first Constitution and

the well known reasons for the passing of the 1921 Act. The constitutionality of the 1921 Act tribunals has been upheld by this court.

Given the clear public interest from time to time in having matters investigated by a 1921 Act tribunal, it may well be that the

requirements of the constitutional obligation to vindicate as far as possible the good name of the citizen are in that context

somewhat less stringent than in other circumstances. For that reason, I would prefer not to express any view on whether all the rules

relating to evidence and cross-examination etc. fashioned by the courts or derived from the Common Law Procedure Acts are

necessarily and in all circumstances equally applicable to a 1921 Act tribunal.

4. In Kiely v. Minister for Social Welfare [1977] I.R. 267 Henchy J. in a Supreme Court judgment had important observations to make

about the application of the rules of natural justice in tribunals. First of all after rejecting two English authorities T.A. Miller Limited v.

Minister of Housing and Local Government [1968] 1 WLR 992 and R. v. Deputy Industrial Injuries Commissioner, ex parte Moore

[1965] 1 Q.B. 456 on the basis that dicta contained therein did not represent the law in this State. He went on to say the following

at p. 281 of the report.

“This Court has held, in cases such as In re Haughey, that Article 40, s. 3, of the Constitution implies a guarantee to the

citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising

quasi-judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to

depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as

to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the

frequently cited dictum of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118:

‘There are, in my view, no words which are of universal application to every kind of inquiry and every kind of

domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of

the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth’.”

5. For the purposes of disposing of this appeal and bearing in mind those observations of Henchy J., I think it is sufficient to rely only

on In re Haughey [1971] I.R. 217 and to state that the tribunal in this case did not comply with the requirements of the Supreme

Court laid down in that case.

6. A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient execution of its work requires

that there be such a policy. A literal application of court procedures will often not be either necessary, desirable or efficient. A

tribunal is also perfectly entitled to conduct separate hearings of separate modules and to try as far as possible to discipline counsel

and the witnesses so that the evidence at any given time is confined to the evidence relevant to that module.

7. This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may have devised

and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested and which may not be

available to a court of law, it is always bound to ensure, as far as possible, compliance with constitutional rights and obligations and

that, of course, includes the vindication of a person’s good name. For all the reasons put forward by Hardiman J. much more

eloquently than I would be able to do, it was absolutely essential that the documents and materials which were sought for the

purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around

the tribunal against Mr. O’Callaghan and of which he had no prior notice, be duly produced. The tribunal relies on an understanding of

confidentiality. It is not suggested, however, that the confidentiality was absolute nor could it have been. The tribunal could not

possibly ensure absolute confidentiality relating to information, which, for instance, might turn out to be highly relevant to the very

matters that it was investigating. Any such confidentiality must necessarily be limited to information, in the event found not to be

necessary to be used at an oral hearing. If, however, the information becomes absolutely essential for the purposes of a cross-

examination pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can be judicially

reviewed for doing so.

8. The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular

rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to

tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that reason that I would prefer to base my

conclusions on narrower grounds than those put forward by Hardiman J. In particular having regard to the clear views of this court in

In re Haughey it would not seem to me to be necessary to consider to what extent the numerous cases and statutes relating to the

law of evidence for the purposes of the courts must necessarily be applied to every cross-examination in a tribunal.

9. I am satisfied that in this case the tribunal applied its own policies too rigidly and in the event infringed the Constitution. I would

dismiss the appeal.