Introduction
The
applicants in these proceedings are Mr Thomas Bailey and Mrs Caroline Bailey,
who are husband and wife, and Bovale Developments Ltd (henceforth "Bovale), a
company of which Mr Bailey is a director. The respondent is the Hon Mr Justice
Feargus Flood, the Sole Member of the Tribunal of Inquiry into Certain Planning
Matters (henceforth "the Sole Member"). This is an application for judicial
review of a decision of the Sole Member dated the 8 February, 2000, refusing to
make an order pursuant to section 2 of the Tribunal of Inquiries (Evidence)
Act, 1921, to hear the evidence of the applicants' financial affairs otherwise
than in public. On the 10 February, 2000, the High Court (Carney J) gave leave
to apply for various reliefs by way of judicial review and the matter has come
before this Court accordingly.
Factual
background
The
background is as follows. The Tribunal of Inquiry into Certain Planning Matters
was established by instrument dated the 4 November, 1997, of the Minister for
the Environment, as amended by a further instrument dated the 15 July, 1998, in
order to inquire urgently into and report and make such findings and
recommendations as it should see fit on the definite matters of public
importance set out in a resolution (the "Terms of Reference") passed by Dail
Eireann on the 7 October, 1997, and by Seanad Eireann on the following day. The
Terms of Reference were extended by further resolutions passed by Dail Eireann
on the 1 July, 1998, and by Seanad Eireann on the 2 July, 1998. Clause 4(a) of
the-Terms of Reference, to which much reference was made in the course of
argument, requires the Tribunal to inquire into:
"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, and the circumstances, considerations and motives relative to any
such payment".
The
"Mr Gogarty" referred to here is Mr James Gogarty, a witness before the
Tribunal, and "Mr Bailey" is Mr Michael Bailey, the brother and fellow Bovale
director of Mr Thomas Bailey.
In
a sworn statement to the Tribunal dated the 12 October, 1998, Mr James Gogarty
made certain allegations against Mr Michael Bailey, among others. For the
purposes of the present proceedings, two of those allegations are of particular
importance. The first relates to an alleged payment to Mr Raphael Burke by Mr
Michael Bailey, and the second to an alleged payment made by Mr Michael Bailey
to Mr Gogarty himself.
The
first of these allegations may be summarised as follows, which I stress is no
more than what is alleged by Mr Gogarty. At a meeting in the offices of Mr
Gogarty's employer, Joseph Murphy Structural Engineering Ltd (a company in the
Murphy Group, henceforth "JMSE"), held in early June, 1989, attended by Mr
Gogarty, Mr Michael Bailey, Mr Joseph Murphy Jnr, and another person, Mr Bailey
had participated in the discussion of a proposal whereby he would acquire a 50
per cent interest in all Murphy Group lands in North County Dublin in return
for securing the rezoning and planning permissions required in order to allow
the lands to be developed. Mr Bailey said that he would be prepared to spend up
to £2,000 per acre to obtain the necessary planning permissions and that
the money would be used through Mr Raphael Burke, then a TD and Government
minister, to ensure that the rezonings were passed by the requisite majority of
members of Dublin County Council. Mr Bailey held himself out as a major
contributor to Mr Burke. Subsequently Mr Bailey agreed to pay the sum of
£40,000 to Mr Burke on the basis that the Murphy Group would make a
similar payment. On the 8 June, 1989, Mr Bailey drove Mr Gogarty and Joseph
Murphy Jnr, from the JMSE premises in Santry to Mr Burke's home, where Mr
Gogarty passed a brown envelope containing £30,000 in cash and a cheque
for £10,000 to Mr Burke and Mr Bailey handed over another brown envelope
that Mr Gogarty assumed also contained £40,000 as his previously agreed
equal contribution. I shall refer to this alleged payment as "the Burke
payment".
It
was further alleged that an agreement for the sale of seven separate parcels of
land or other property (henceforth "the Lands") by the Murphy Group to Mr
Michael Bailey and Mr Thomas Bailey (per Bovale) for £2.3 million was
eventually reached and that contracts were exchanged at the end of 1989.
However, a dispute arose between the parties and at the end of July or early
August, 1990, a meeting was held in the Swiss Cottage, Santry, attended by Mr
Gogarty, Mr Michael Bailey, Mr Thomas Bailey and Mr Joseph Murphy Jnr, at which
Mr Michael Bailey offered to re-sell 50 per cent of the Lands to Mr Joseph
Murphy Jnr, for £8 million. This proposal was rejected but Mr Murphy Jnr,
said that he would discuss it further with his father, Mr Joseph Murphy Snr.
The
second of Mr Gogarty's allegations relevant to these proceedings is this.
Having fallen out with the Murphy Group over the terms of his severance
package, Mr Gogarty met with Mr Michael Bailey in late August or early
September, 1990, at the Skylon Hotel, Drumcondra, where Mr Bailey expressed
concern at the ongoing dispute between Mr Gogarty and JMSE. He said that he
wanted to avoid a court hearing because of the risk of publicity about the
payment to Mr Burke and expressed the worry that he would never again get
planning permission for anything should such publicity erupt. As the meeting
ended Mr Bailey placed a small envelope in the breast pocket of Mr Gogarty's
jacket, which Mr Gogarty discovered on returning home contained a cheque for
£50,000 post-dated the 30 September, 1990, drawn in his favour. At the
meeting Mr Bailey had made it clear that he wanted Mr Gogarty to forget the
past and desist from his proceedings against JMSE and simply to enjoy life. I
shall refer to this alleged payment as "the Gogarty payment". On Mr Gogarty's
version of events the Gogarty payment was made as what has been called "hush
money" during the course of the proceedings. --
Owing
to his age, the state of his health and the seriousness of his allegations, the
Sole Member decided to proceed to hear Mr Gogarty's evidence immediately. By a
letter of the 20 October, 1998, the Solicitor to the Tribunal, at the direction
of the Sole Member, wrote to those persons affected by the contents of Mr
Gogarty's statement, furnishing them with copies of the statement and affording
them the opportunity to reply. Such letters were sent to Mr Michael Bailey and
Mr Thomas Bailey, the latter because (a) along with Mr Michael Bailey he was a
director of Bovale; (b) again with Mr Michael Bailey, he was a signatory on the
contracts for the acquisition of the Lands; (c) he was a person connected with
Mr Michael Bailey within the meaning of paragraph 4(a) of the Terms of
Reference; and (d) he was alleged by Mr Gogarty to have been present at the
Swiss Cottage meeting where the re-sale of the lands to Mr; Joseph Murphy Jnr,
was said to have been discussed. The letter stated that the Tribunal intended
to deal with all matters concerning Mr Gogarty's allegations before proceeding
with any other aspect of its public work. This phase of the Tribunal's inquiry
has become known as "the Gogarty Module". Mr Thomas Bailey was informed that he
would be allowed to attend at the sittings of the Tribunal for the taking of Mr
Gogarty's evidence and to cross-examine Mr Gogarty on that evidence. He was
also required to give a statement dealing with the matters in Mr Gogarty's
statement and was requested to furnish a statement of the evidence that he
proposed to give. He was also asked to provide the names and addresses of any
persons he wished to call in evidence and statements of such evidence. Mr
Thomas Bailey never furnished any narrative statement of the evidence he
proposed to give, nor has he identified any other relevant witness.
Mr
Michael Bailey did provide a statement, which was received by the Tribunal on
the 11 January, 1999, the day before public sittings commenced. In this
statement Mr Bailey vigorously contested many of the allegations made by Mr
Gogarty and in particular denied that he had ever made the Burke payment. He
also made a bare denial of having paid money to Mr Gogarty in exchange for his
agreement to forget about pursuing proceedings against JMSE and simply to enjoy
life. It was in cross-examination of Mr Gogarty by Mr Colm Allen, SC, counsel
for Messrs Bailey and Bailey and Bovale, that Mr Michael Bailey's version of
events surrounding the Gogarty payment emerged. On the 25 March, 1999 (day 34
of the public sittings), Mr Allen stated that Mr Bailey would be giving
evidence to the following effect. During the negotiations for the purchase of
the Lands, Mr Gogarty had made it clear that he would require to be paid a
finder's fee of £150,000. Mr Michael Bailey had agreed to pay this sum in
three equal instalments of £50,000 each and on the 23 November, 1989, the
first of these payments was made to Mr Gogarty, in cash, at the Royal Dublin
Hotel on O'Connell Street in Dublin. The other payments were made at the same
meeting by handing over two cheques post-dated the 31 March, 1990 and the 30
September, 1990, respectively. Mr Gogarty was paid £162,000 in total
because of his insistence that he be paid interest in respect of the delayed
payment of certain monies; Counsel for the Tribunal stated that this was the
first time that this information had been conveyed to the Tribunal and asked
that the relevant accounts and bank accounts of Bovale be produced in order to
show from where this money had come. Mr Allen stated that such documents had
already been discovered.
The
cross-examination of Mr Gogarty by Mr Allen finished on the 26 March, 1999, and
the Sole Member directed the Tribunal Solicitor, Ms Maire Ann Howard, to write
that day to the solicitor for Messrs Bailey and Bailey and Bovale, Mr TK Smith
of Smith Foy & Partners, requesting a further detailed statement to be
furnished to the Tribunal by Mr Michael Bailey and a statement to be provided
by Mr Thomas Bailey, giving detailed accounts of their knowledge of and
involvement in any matters in respect of which evidence had been given by Mr
Gogarty. In a reply dated the 31 March, 1999, Mr Smith stated that there was no
obligation on their clients to furnish statements.
In
giving his evidence before the Tribunal, commencing on the 19 July, 1999 (day
72), Mr Michael Bailey controverted Mr Gogarty's version of the Gogarty payment
and stated that the cheque for £50,000 had been paid to him as part of a
finder's fee. He also stated that Mr Gogarty had been paid in total
£162,000 by way of this fee and claimed that there were accounting records
of this payment, which would be available from Mr Joe O'Toole of Messrs McGrath
& Co, auditors of Bovale.
The
Sole Member then directed that Mr Joe O'Toole should be summoned to give
evidence before the Tribunal and this evidence commenced on the 14 July, 1999
(day 75). The earliest documents produced by Mr O'Toole to the Tribunal related
to the financial year 1 July, 1990 to 30 June, 1991. He explained that the
documents relating to the previous year, within which the contracts in relation
to the Lands were exchanged and the alleged meeting at the Royal Dublin Hotel
took place, were unavailable. He assumed that this was because they had been
among a number of documents destroyed by water damage at his firm's offices in
Celbridge on the 30 December, 1992.
Mr
Michael Bailey again gave evidence on the 15 July, 1999 (day 76). He said that
a pocket notebook, known as the "Kitten Notebook" because it bore a picture of
a kitten on its front cover, contained handwritten entries concerning three
payments to Mr Gogarty, namely, in June, 1990 a payment of £5,000; on the
26 July, 1990, a payment of £10,000; and on the 11 October, 1990, a
payment of £15,000. He had not known, he said, of the existence of the
Kitten Notebook until after the commencement of the work of the Tribunal, when
it had been produced to him by Mr Thomas Bailey as proof of his having made
payments to Mr Gogarty. He said that the handwriting in the notebook was that
of Mrs Caroline Bailey.
The
Solicitor to the Tribunal, Maire Ann Howard, in an affidavit sworn on the 17
February, 2000, deposes to the fact that at the conclusion of the evidence of
Mr Michael Bailey and Mr Joe O'Toole, the Sole Member took the view that Mr
Thomas Bailey and Mrs Caroline Bailey, who had been a book-keeper for Bovale,
had either been actively involved in or had been observers of certain events
that were the subject of inquiry at that time. I should say at this point that
all parties to the present proceedings accept that this affidavit fairly
reflects the views of the Sole Member. Consequently Mrs Caroline Bailey, by
letter of the 23 July, 1999, was asked to assist with the Tribunal's inquiries
in relation to the accounts of Bovale. At her request, on the 26 July, 1999,
she was served with a witness summons and she gave evidence on the 22 November,
1999 (day 106). She was questioned closely about the book-keeping practices
within Bovale. In particular, she was asked about the contents of the Kitten
Notebook. She stated that this notebook was used as a memory aid for Mr Thomas
Bailey for bonuses he would have paid to the employees. There was, she said, no
record of these Kitten Book payments going through the books of accounts. She
did not know from where the opening balance of £5,207.90 derived, although
she thought that it was probably another cash account, and stated that it would
have been Mr Thomas Bailey who had this cash. She and her husband would
reconcile the entries in the Kitten Notebook together, on a weekly basis. She
stated that the payments to Mr Gogarty were none of her business and that she
had no interest in them.
Mr
Thomas Bailey gave evidence on the following day. As he had not furnished a
narrative statement to the Tribunal it was envisaged that he would be examined
in order to take preliminary evidence and that he would then stand down to be
recalled on a later date after the Tribunal and any affected persons had had
the opportunity to peruse the evidence given. He confirmed Mr Michael Bailey's
version of events in relation to the Gogarty payment, namely that it had been
made as part of a finder's fee rather than as "hush money".
Having
heard all this evidence, Ms Howard avers that certain matters appeared to be
the case to the Sole Member. Many of these matters relate to particular aspects
of the manner in which Bovale's finances were operated, aspects that I have
foregone from detailing here. However, I think it is fair to say that the Sole
Member's view may be summarised by saying that it appeared to him that the
financial affairs of Mr Michael Bailey, Mr Thomas Bailey, Mrs Caroline Bailey
and Bovale itself were so inextricably bound up together that it was impossible
to separate one from the others.
Now
we come down to the heart of the matter. There followed numerous requests for
further documentation and information, culminating in a letter of the 20
January, 2000, whereby Ms Howard wrote to Mr Smith seeking to obtain, prior to
the resumption of the evidence of Mr Thomas Bailey, Mrs Caroline Bailey and Mr
O'Toole, certain financial details under the following six headings: (1).
Source of lodgments to personal bank accounts; (2) Bank accounts re Kitten
Book; (3) Personal monies withdrawn from Bovale; (4) Sale of land in Donabate;
(5) Grange lands; and (6) Celtic Helicopters. Under heading (1), Source of
lodgments to personal bank accounts, the letter requested inter cilia "a
schedule of all the principal assets, acquired by your clients previously
outlined in the period from the 1 July, 1987 to the 30 June, 1991 and copy
contracts (if any) relating to purchase of land/property, and details of the
source of funds used to finance such purchases, cross referenced to the
relevant bank/loan account statements". In his affidavit sworn on the 10
February 2000, Mr Thomas Bailey avers, at paragraph 34:
"As
appears from the letter of the 20 January, 2000, information was sought as to
the intimate financial affairs of myself and my wife (the second named
applicant). Specifically, the following information, inter alia, was sought:
(i)
Schedule of all assets held by myself and my wife as at the 1 July, 1987 and at
the 30 June, 1991;
(ii)
Details of the accounting treatment applied in producing the audited financial
statements of Bovale Developments Limited in respect of cheques withdrawn from
its bank accounts and lodged to our personal accounts;
(iii)
Details of the accounting treatment applied in producing the audited financial
statements of Bovale Developments Limited in respect of cash payments recorded
in the kitten book;
(iv)
A formal statement with regard to any other monies withdrawn from Bovale
Developments Limited in the period from the 1 July, 1988 to the 30 July, 1991."
In
his reply of the 24 January, 2000, Mr Smith asserted that neither statements
nor documents volunteered to a tribunal of inquiry attract the privileges
provided for under section 5 of the Tribunals of Inquiry Act, 1979, and that in
the circumstances his clients had instructed him that "whereas they will, of
course, provide evidence on oath before the Sole Member, they are not in a
position to furnish the information now sought other than in the form of the
sworn evidence or to produce documents other than pursuant to order". Mr Smith
also expressed difficulty in understanding the relevance of the private
financial affairs of his clients over an extended period to the work of the
Tribunal, in particular to the allegations made by Mr Gogarty. He called on the
Sole Member to explain how he had interpreted the Terms of Reference so as to
make this information relevant.
In
her reply to this letter, dated the 25 January, 2000, Ms Howard requested Mr
Thomas Bailey and Mrs Caroline Bailey to furnish the Tribunal with any relevant
documentation prior to their re-examination. She went on to explain why it was
considered necessary to inquire into their financial affairs, stating:
"The
inquiries which involve consideration of your client's financial affairs arise
from the fact that the documents provided to the Tribunal to date and the
evidence of your clients suggest that your clients' business affairs are
transacted to a significant degree [through] the personal bank accounts of the
individual directors and in some cases through the accounts nominally held in
the name of the wife of one of the directors namely Caroline Bailey. The
evidence also suggests that substantial sums of money were being taken by the
directors of the company either without being properly accounted for in the
books and records being maintained by the company or by being attributed to
headings in respect of which the expenditure was not actually incurred.
In
view of the evidence of James Gogarty to the effect that your client Michael
Bailey informed him that he could procure planning permission in Dublin County
Council, by reason of his control over certain elected public representatives
and in view of the evidence to the effect that your client Michael Bailey
purported to pay Ray Burke a sum of money equal to that paid by James Gogarty
on behalf of Joseph Murphy Structural Engineers Limited, it is clear that an
examination of your clients' financial affairs is necessary as it may establish
the fact of such payments having been made as alleged.
In
addition your clients have alleged that James Gogarty has given false evidence
to the Tribunal in his denial of receipt of the sum of £162,000 which was
allegedly paid to him by your clients over a period of years between 1989 and
1996. The examination of your clients' financial affairs may either establish
or disprove the veracity of these allegations.
The
Tribunal has sought to inquire into the relevant matters in a manner in which
(sic) would limit the extent to which your clients' financial affairs are
publicly aired so as to avoid unnecessary publication. However, in view of the
stance adopted by your clients in response to requests to provide a narrative
statement of events and relevant information it is necessary for the proper
conduct of the inquiry to pursue the investigations in public."
This
letter provoked a response dated the 27 January, 2000:
"27
January 2000
Dear
Ms Howard
Re:
Tribunal of Inquiry into Certain Planning Matters and Payments Our Clients:
Bailey/Bovale Developments Limited
Request
for written statement/information
Your
letter of 25th instant refers.
We
note that the Sole member intends to permit examination of our clients in
relation to their personal financial affairs on the basis that same may be
relevant to issue of payments to Mr James Gogarty (specifically, a payment of a
finder's fee of IR £162,000).
As
stated in previous correspondence, the question of payments to Mr Gogarty is a
collateral issue only ie, it is not directly relevant to the terms of
reference, and is not a matter in which the Sole Member is required to address
in his report: Mr Gogarty is not a public official within the meaning of A.3 or
A.4 of the terms of reference. In the circumstances, the Sole Member is not
required to conduct an exhaustive inquiry into all possible sources of these
payments; this is particularly so where the matters is essentially a private
matter between the parties. The Sole Member has heard two conflicting versions
of the cheque of IR£50,000 of September, 1990. The Sole member is entitled
to have regard to this evidence and such documentary evidence as is put forward
in support of same, but is not required to extend his inquiry so as to trawl
through the private financial affairs of our clients. There must be some limit
to the pursuit of collateral matters. We wish to have an objection to the
relevance of the proposed examination formally noted.
Even
if one were to accept (and same is not conceded) that the collateral issue of
payments to Mr Gogarty permitted an examination of the private financial
affairs of our clients, it is apparent that the scope of the proposed
examination greatly exceeds the latitude that even an extended reading of the
terms of reference could reasonably permit. For example, our clients are
requested to provide a detailed explanation of the book-keeping and accounting
treatment of Bovale Developments Limited with respect, such an explanation
could only be relevant to an inquiry into compliance with company law
requirements and/or revenue law requirements. Such an inquiry is not mandated
by the Sole Member's terms of reference, and it is further submitted that any
attempt to employ the extensive powers under the Tribunals of Inquiry
legislation as a substitute for, or supplemental to, an investigation under
either the company legislation or the revenue legislation would be ultra vires.
The
scope of the proposed examination is also excessive insofar as it is intended
to require our clients to disclose what is described as a 'schedule of all
assets' held at certain dates. Such a requirement represents a disproportionate
interference with our clients constitutional rights (in particular, the right
to privacy, and the right against self-incrimination). It is submitted that a
Tribunal of Inquiry has no power, as a matter of law, to impose such a
requirement. Further, or in the alternative, it is submitted that the Sole
Member's terms of reference do not permit the imposition of such a requirement.
Without
prejudice to the foregoing, in the event that the Sole Member intends to permit
examination of the type objected to above, our clients will be applying to have
the evidence heard otherwise than in public. We cannot accept the suggestion
contained in the ultimate paragraph of the letter under reply that it is
necessary for the Tribunal of Inquiry to pursue its proposed investigations in
public. Our clients will also be seeking an undertaking that the evidence will
not be produced to either the revenue authorities or to the regulatory
authorities under the company legislation. In this connection, please confirm
whether or not your office has been in contact with either, the revenue
authorities or to the regulatory authorities under the company legislation.
Finally,
in connection with the request that our clients provide documentation to the
Tribunal' of Inquiry, we repeat our statement (set out in our letter of 24
January 2000) that for reasons arising from the limited nature of privileges
afforded under the Tribunals of Inquiry (Evidence) Acts, our clients are not in
a position to provide documentation to the Tribunal of Inquiry other than
pursuant to a formal order made pursuant to the procedures laid down by the
Supreme Court in Bailey v Mr Justice Flood 28 July, 1998. You might note,
however that certain of the documentation requested has already been furnished
pursuant to earlier orders for example the relevant contract documentation in
respect of the Donabate lands has been discovered and produced.
Without
prejudice to any more specific submissions which our clients might wish to make
in respect of any proposed orders for discovery or production, it is oppressive
to request our clients to produce a volume of documentation at less than a
week's notice. Certain categories of documents were sought for the first time
by letter dated 20 January, 2000. The Tribunal of Inquiry has been conducting
public hearings for in excess of a year now and it is difficult to understand
the urgency with which documentation is now sought.' It is not unreasonable to
expect that our clients would be afforded a realistic amount of time to collate
such documentation.
Yours
faithfully,
TK
Smith
Smith
Foy & Partners
Ms
MA Howard
Solicitor
to the Tribunal of Inquiry into
Certain
Planning Matters and Payments, --
State
Apartments,
Upper
Castle Yard,
Dublin
Castle
Dublin
2
By
hand"
Ms
Howard replied on the 28 January, 2000.
"28
January 2000
Strictly
Private & Confidential -- Addressee Only
Kevin
Smith Esq
Smith
Foy & Partners
Solicitors
59
Fitzwilliam Square
Dublin
2
Re:
Your Clients: Balley/Bovale Developments Limited
Dear
Sir,
I
acknowledge receipt of your letter of the 27th inst. Insofar as your
contentions are based on the premise that examination of your clients in
relation to their financial affairs is based solely upon the relevance of the
issue of payments to James Gogarty, I refer you to my earlier correspondence
which states the actual basis upon which such questioning may be relevant. Your
objections to such evidence being led are noted
The
fact that your client's financial records may be of interest to the Revenue
authorities -- or to regulatory authorities under the Companies Act legislation
is incidental to the purposes for which your clients are being examined. 'As
you have already been informed information provided to the Tribunal is provided
on a confidential basis and is not circulated to any party by the Tribunal
unless the Sole Member determines that it is appropriate to circulate such
information to affected parties prior to evidence -being adduced at a public
hearing which might affect them. Neither the Revenue authorities nor any
regulatory authority under the Companies Act has representation before this
Tribunal and no circulation of documentation to those parties has taken place.
The
scope of the proposed examination has been dictated by your client's failure to
voluntarily provide the information sought by the Tribunal to date, had they
done so it might have been possible to narrow or indeed eliminate certain areas
of their financial dealings from, public examination.. On the basis of the
information obtained by the Tribunal to date it is necessary to pursue the line
of questioning set out in our correspondence. In the event that your client had
furnished details of their actual expenditure during the relevant periods it
would have been possible to identify and quantify the amounts available to them
from which the alleged payments could have been funded, the absence of such
information obliges the Tribunal to inquire into your client's expenditure and
any consequential intrusion into your client's privacy is constitutionally
permissible.
The
contention that the Tribunal has acted oppressively in seeking the
documentation set out in my letter of 20 January 2000 is rejected The documents
which your clients are requested to have available are described in sufficient
detail to allow for them to be identified and the Tribunal is not aware of any
basis upon which it is suggested that the volume of documentation is
significant.
Yours
faithfully,
Maire
Anne Howard
Solicitor"
The
final episode in this series of correspondence consists of a letter from Mr
Smith to Ms Howard dated the 31 January, 2000. In it Mr Smith denied that an
examination of financial transactions conducted after June, 1989, the time of
the Burke payment, could be relevant to that payment. He reiterated his
objection to pursuing the hare of the Gogarty payment, which he said was
collateral and went to credibility only. Mr Smith informed Ms Howard that an
application would be made to have any evidence heard otherwise than in public.
In
his affidavit, Mr Thomas Bailey elucidates on his objection to the course of
action being proposed by the Sole Member. He states:
"41.
As appears from the correspondence, in the absence of a written statement from
me or my wife (the second named applicant), the Tribunal intended to require
oral evidence on these matters at a public hearing of the Tribunal.
42.
I say and believe that we could be greatly prejudiced by any such public
ventilation of our personal financial affairs.
43.
The proposed examination, if conducted in public, would expose our intimate and
personal financial transactions to public scrutiny. The information sought, (in
particular in connection with the schedule of assets) would involve stripping
bare our private affairs in public.
44.
In the circumstances, I instructed my solicitor to make a formal objection to
the proposed course of examination. Submissions were duly made on behalf of
myself and my wife at a public hearing of the Tribunal on the 7 February, 2000
and the 8 February, 2000 . . ."
Mr
Colm Allen, SC, made the submissions to which Mr Bailey refers. It does not
seem to me to be necessary to set them out, since they were much the same as
the submissions that have been very ably made to this Court by Mr Gordon, SC
and Mr Hugh O'Neill, SC. In his response to Mr Allen's submissions, Mr Desmond
O'Neill, SC, counsel for the Tribunal, stated on the 7 February, 2000 (day 136
at page 82), in a passage of which much has been made by the applicants:
"I
say that the trawl which is being made of the private affairs of these
individuals is no greater than in merited by the extent of the inquiry and the
purpose for which the inquiry is being conducted. It is in no sense Sior, a
roving commission as it is suggested in this submission. It is a specific and
directed inquiry into financial affairs. It has of course, an element of
uncertainty about it because the Tribunal does not know what the end result
will be, but must inquire into it."
In
his affidavit Mr Thomas Bailey states at paragraph 46 that this submission
bears out his concern that the Tribunal wishes to engage in a trawl through his
and his wife's financial affairs without establishing any proper evidential
basis.
The
Sole Member delivered his formal ruling on the 8 January, 2000 (day 137). He
said:
"I
have carefully considered the submissions of counsel on the issues raised by Mr
Allen.
I
am satisfied that an inquiry into the personal bank accounts and financial
dealings of Tom Bailey and Caroline Bailey falls within the Terms of Reference
of this Tribunal and in particular clause 4(a) thereof.
My
inquiries to date establish that the financial affairs of Bovale Developments
Limited, of Michael Bailey, of Tom Bailey and of Caroline Bailey are so
intermeshed that an investigation into a possible payment by Michael Bailey on
behalf of Bovale Developments Limited must necessarily extend to cover not only
the accounts of the company itself but also the personal accounts and financial
dealings of the directors and their wives.
The
evidence adduced before the Tribunal to date suggests that some company funds
passed to the individual directors for their own purposes and do not appear to
have been properly accounted for in the company's accounts. Equally the
examination of bank accounts furnished to the Tribunal by Bank of Ireland since
Mrs Bailey last appeared before the Tribunal suggests that monies from accounts
held in the name of Caroline Bailey were expended for the purposes of the
company.
I
believe that the inquiry into the topics outlined in the Tribunal's letter of
the 20 January, 2000 is relevant to the Gogarty allegations and to issues
raised in this module of evidence."
The
Sole Member then summarised Mr Gogarty's allegations in respect of both the
Burke payment and the Gogarty payment and drew attention to the
counter-allegations made by Messrs Bailey and Bailey in relation to the
finder's fee. He noted that an examination of the financial affairs of Mr
Gogarty had not revealed any inconsistency in the evidence given by him to the
Tribunal and continued:
"The
intended examination of the witnesses [Mr Thomas Bailey and Mrs Caroline
Bailey] would seek to establish further details in relation to such accounts
and transactions with a view to establishing whether there is -- any --
evidence of such payments having been made or alternatively and with a view to
establishing that such payments could not in fact have been made. A
consideration of the bank accounts of these individuals is therefore necessary.
The scope of the inquiries which would be made must cover the time periods in
which it is alleged such payments were made and the financial year accounts in
respect of which it might be expected that such payments would be accounted
for."
The
Sole Member then explained why he considered it necessary to proceed to hear
this evidence in public. He referred to the judgment of Hamilton CJ in Lawlor v
Mr Justice Flood (Unreported, Supreme Court, 8 October, 1999) [FL 1856] where
it was said (at pages 44-45) that "when it comes to the formal exercise by the
tribunal of its powers to examine witnesses this must be done by the Tribunal
itself and, except as provided by law, must be done in public". He then
continued:
"It
has been urged upon me that in view of the private nature of the proposed
inquiry touching as it does upon the expenditure of money and acquisition of
assets by the parties that such inquiries should be conducted in private. The
Tribunal of Inquiries Evidence Act specifically provides for the evidence to be
heard in public unless it is expedient to the public interest that I sit in
private. I do not believe that there are sufficient grounds open to me to
conduct the intended examination of the witnesses in private in the public
interest and accordingly I believe that the examination of the witnesses should
proceed."
Judicial
review proceedings
It
is against this ruling of the Sole Member that the present judicial review
proceedings are directed. As I have already mentioned, on the 10 February,
2000, Carney J gave leave to apply for various reliefs by way of judicial
review. Those reliefs are set out in the statement required to ground the
application under the heading "(d) Relief sought":
"(i)
An order of certiorari by way of application for judicial review quashing the
decision of the respondent dated the 8 February, 2000 refusing to make an order
pursuant to section 2 of the Tribunal of Inquiries (Evidence) Act, 1921 to hear
evidence of the applicants' personal financial affairs otherwise than in public;
(ii)
Further or in the alternative, a declaration by way of application for judicial
review that the hearing of evidence of the applicants' personal financial
affairs in public represents a disproportionate interference with their
constitutional rights having regard to the nature of the evidence and the
limited relevance (if any) of same to the terms of reference;
(iii)
A declaration that the respondent does not have jurisdiction to require the
disclosure of a schedule of assets whether by way of oral evidence or otherwise
at all;
(iv)
An order of certiorari by way of application for judicial review quashing the
decision of the Respondent dated the 8 February, 2000 permitting examination of
the applicants in relation to their personal financial affairs;
(v)
A declaration by way of application for judicial review that evidence of the
applicants' personal financial affairs is not relevant to the respondent's
terms of reference;
(vi)
Further or in the alternative, a declaration by way of application for judicial
review that evidence of the payment of a finder's fee to Mr James Gogarty is
not relevant to the respondent's terms of reference."
The
applicants also sought certain ancillary relief and a stay pursuant to Order 84
rule 20(7)(a) of the Rules of the Superior Courts, 1986, restraining the Sole
Member from proceeding to hear any further evidence from the applicants pending
the determination of these proceedings. Discovery was also sought but this has
been abandoned. Carney J granted leave to apply for all the reliefs outlined
above and also granted the stay. On the 17 February, 2000, the Sole Member in
his statement of grounds of opposition joins issue with the applicants. He
states:
"1.
The respondent acted intra vires, in directing his ruling of the 8 February,
2000 that evidence relating to the financial affairs of the applicants be heard
in public.
2.
The respondent is required to inquire urgently into and report to the Clark
[sic] of the Dail and make such findings and recommendations as he sees fit in
relation to the matters of urgent public importance set forth in the Terms of
Reference including the matters set out at paragraph 4(a) and the admitted and
alleged payments to Mr Raphael P Burke.
3.
On or about the 20 October, 1998 the respondent formed the opinion that it was
in the public interest to proceed to a full public hearing to hear all evidence
relating to and arising from the sworn statement of Mr Gogarty.
4.
A Tribunal of Inquiry established pursuant to the Tribunal of Inquiry
(Evidence) Acts, 1921-1998 may devise its own model of practice and procedure
in relation to its inquiry work.
5.
A Tribunal of Inquiry established pursuant to the Tribunal of Inquiry
(Evidence) Acts, 1921-1998 is not required to adopt the lis inter partes
procedures in the public hearings of the Tribunal.
6.
The respondent made the ruling of the 8 February, 2000, after consideration of
the Terms of Reference of the Tribunal, having heard legal submissions on
behalf of the applicants and by counsel to the Tribunal and having decided that
it was necessary to hear further evidence in public from Thomas and Caroline
Bailey for the purpose of its functions. In making the said ruling the
respondent did not infringe any legal or constitutional right of the applicants
either -- by not giving prior notice of his intention to make the said ruling
or by not specifying the reasons for making the said ruling or otherwise."
Some
ancillary issues
At
this point, having devoted some considerable time to describing the history of
these proceedings, I think it appropriate to attempt to outline the issues
between the parties. Before dealing with what I consider to be the main aspects
of this application, however, I would like to clear the ground by addressing
some other less important points that were raised in argument.
(a)
Celtic Helicopters
The
first such issue concerns the request in the letter of the 20 January, 2000 for
information relating to Celtic Helicopters Ltd. Ms Howard in her affidavit
avers at paragraph 72 that the Tribunal established the existence of five
cheques for £5,000 each payable to Celtic Helicopters Ltd in the audited
accounts of Bovale and has sought to clarify the purpose for which this
expenditure was incurred. She goes on to say that "(no) decision had been taken
to raise this matter in public until such time as the Sole Member had
determined that such payment may be relevant to his inquiry". Contrary to what
is submitted by the applicants, I do not take the view that this vitiates the
decision of the Sole Member to proceed to hear the evidence of the applicants
and accept the submission of Mr Clarke, SC, counsel for the Sole Member, that
it would be premature for the Court to review the Celtic Helicopters issue as
it is in reality one in respect of which a decision has yet to be taken. Should
the Sole Member decide at some future date to inquire into the matter it would
then be open to the applicants to invoke the supervisory jurisdiction of this
Court in that regard.
(b)
Statutory protection
The
point was constantly made by the applicants in the course of their
correspondence with the Tribunal that they were unable, in the light of the
decision of the Supreme Court in Lawlor v Mr Justice Flood (Unreported, Supreme
Court, 8 October, 1999) [FL 1856], voluntarily to provide the information being
sought, on the ground that were they to do so they would not enjoy the benefit
of the protection afforded by the Tribunals of Inquiry (Evidence) Act, 1921 as
amended and the
Tribunals of Inquiry (Evidence) (Amendment) Act, 1979. Under
section 1(3) of
the Act of 1921 "A witness before any such tribunal shall be
entitled to the same immunities and privileges as if he were a witness before
the High Court or the Court of Session".
Section 1(4), as amended by
section 2
of the
Tribunals of Inquiry (Evidence) (Amendment) Act, 1997, states that "A
person who produces or sends a document to any such tribunal pursuant to an
order of that tribunal shall be entitled to the same immunities and privileges
as if he were a witness before the High Court". And under
section 5 of
the Act
of 1979 "A statement or admission made by a person before a tribunal or when
being examined in pursuance of a commission or request issued under subsection
(1) of
section 1 of the [Act of 1921] shall not be admissible as evidence
against that person in any criminal proceedings (other than proceedings in
relation to an offence under subsection (2)(c) . . . of that section) and
subsection (3) of that section shall be construed and have effect accordingly".
I
consider it to be clear beyond argument that in giving the evidence requested
of them before the Tribunal, the applicants will be entitled to rely on the
Protection afforded by these provisions. The applicants were of course entitled
to stand on their rights and to refuse to volunteer any statements or
documentation to the Tribunal as requested, and no criticism may be made of
them for choosing this course of action. It may be that the matter could have
been handled with something approaching the discretion that they now seek, but
they made their decision and have stood over it. However, I do not think that
it is now open to the applicants to argue that they can invoke the privilege
against self-incrimination in order to prevent the Tribunal from hearing the
evidence in question. Even if it were to reveal some facts that might point to
a criminal offence having been committed, I am satisfied that the protection
offered by the provisions I have just mentioned is sufficient to obviate any
threatened infringement of the privilege.
(c)
Preliminary inquiry
It
was submitted by the applicants that, under the Terms of Reference, the Sole
Member would be entitled to take the evidence of the applicants by way of
preliminary investigation before proceeding to a public hearing in connection
with that evidence. The Court was directed to clause B.(i) of the Terms of
Reference, whereby the Tribunal is enjoined:
"To
carry out such preliminary investigations in private as it thinks fit using all
the powers conferred on it under the Acts, in order to determine whether
sufficient evidence exists in relation to any of the matters referred to above
to warrant proceeding to a full public inquiry in relation to such matters".
It
was said on behalf of the applicants that this clause gave authority to the
Tribunal to scrutinise privately the evidence to be provided by the applicants
before deciding whether or not to go public with it, in order to sort the wheat
from the chaff. I must say that I cannot agree with this interpretation of
clause B.(i). It is my view that this provision is directed to preliminary
investigations to be conducted before any public sitting is held. By its
reference to investigations the purpose of which is "to determine whether
sufficient evidence exists in relation to any of the matters referred to
above", I do not consider that the provision is stating that such an
investigation may be conducted in respect of every such matter, at the
discretion of the Sole Member. On the contrary, I think it clear that if the
Sole Member, on a preliminary investigation, found sufficient evidence in
relation to even one issue, then he should proceed to public sittings. The
clause is directed towards nipping a tribunal in the bud, should it be
determined that there is absolutely no evidence to support any of its
inquiries. Presumably, the purpose is to prevent the needless expenditure of
public monies that would accompany public sittings of a tribunal that has
nothing into which to inquire. This interpretation is strengthened when one
considers clause B.(iv) which states:
"In
relation to any matters where the Tribunal finds that there is insufficient
evidence to warrant proceeding to a fully public inquiry, to report that fact
to the Clerk of the Dail and to report in such a manner as the Tribunal thinks
appropriate on the steps taken by the Tribunal to determine what evidence, if
any, existed and the Clerk of the Dail shall thereupon communicate the
Tribunal's report in full to the Dail".
It
is little short of absurd to contend that the Sole Member, every time he heard
in private evidence that he did not consider sufficiently germane to the
Tribunal's work to ventilate in public, would then be obliged to report to the
Clerk of the Dail on the matter. These provisions in the Terms of Reference are
clearly directed to a preliminary investigation before any public sitting 'has
taken place, and to explaining to the Dail, should the Tribunal never proceed
to such a sitting, why this decision was taken. If the evidence at issue in
these proceedings is to be given in private, the justification for such a
course of action must be found in the governing legislation.
The
main issues
The
primary submission of the applicants is that the proposed examination of the
applicants is not relevant to the work of the Tribunal under the Terms of
Reference. In the alternative, Mr O'Neill submits that, even if relevant,
having regard to the applicants' right to privacy, the evidence is so
tangentially relevant that it ought not to be admitted. Again in the
alternative, he submits that even if the evidence may be admitted, having
regard to the potential prejudice to the applicants and to the limited value of
the evidence, it ought to be heard in private rather than in public.
There
are, in my view, three separate but related issues. The first is whether or not
the evidence it is proposed to admit is relevant. This is a threshold issue,
for if the evidence is not relevant to the Terms of Reference then the Sole
Member has no discretion to admit it at all, whether in public or in private.
The second is whether or not the Sole Member has the power to take this
evidence in private, should he be minded to do so. Thirdly, if it is accepted
that the threshold is crossed and that the evidence has at least some measure
of relevance, that does not determine the manner in which it should be heard,
or indeed even if it ought to be heard at all. It is here that the question of
proportionality, which was addressed by both parties, becomes important. What
is involved is a balancing exercise between the rights of the applicants on the
one hand and the public interest in the public administration of the Tribunal
on the other. I propose to take these three issues in turn, but before I do so
it is important to decide according to what standard the decisions of the Sole
Member are to be measured.
(a)
The test
Of
the three issues I have outlined as central to this application, it is clear
that only one, the second, is a pure matter of law. The question of whether or
not the Sole Member is entitled to hold private hearings depends on the
construction of the governing legislation. The other two questions, whether or
not the evidence is relevant and whether or not the Sole Member was correct in
his decision to hear that evidence in public, are first and foremost questions
for the Sole Member himself. The only basis upon which these decisions of the
Sole Member are challenged is that they are unreasonable, having regard to the
context in which they were made. It is important, therefore, to determine the
standard according to which the Court should exercise its review jurisdiction.
Supreme
Court pronouncements, which of course bind this Court, have laid down the
principle that the decision of a body subject to judicial review should be
interfered with on the ground of reasonableness alone, only when it "plainly
and unambiguously flies in the face of fundamental reason and common sense". So
held Henchy J in The State (Keegan) v Stardust Victims' Compensation Tribunal
[1986] IR 642 at page 658. In The State (O'Keeffe) v An Bord Pleanala [1993] 1
IR 39 at page 71 Finlay CJ said:
"The
Court cannot intervene with the decision of an administrative decision making
authority merely on the grounds that (a) it is satisfied that on the facts as
found it would have raised different inferences and conclusions, or (b) it is'
satisfied that the case against the decision made by the authority was much
stronger than the case for it."
The
Court must generally ask itself whether or not the impugned decision is so
unreasonable that no reasonable decision-maker could ever have arrived at it.
But in this case the applicants contend and the respondent agrees that another
standard of review should apply. The Court was referred to R v Lord Saville ex
parte A
[1999] 4 All ER 860, where the Court of Appeal in England considered an
application for judicial review brought by seventeen military witnesses to a
tribunal investigating the "Bloody Sunday" killings in Deny, in respect of a
decision of the tribunal not to allow the witnesses to give evidence
anonymously. Essentially, the argument was that by revealing the identities of
these witnesses the tribunal would be placing their lives or at least' their
safety in jeopardy. Lord Woolf MR, who delivered the judgment of the Court of
Appeal, said that:
"What
is important to note is that when a fundamental right such as the right to life
is engaged, the options available to the reasonable decision-maker are
curtailed. They are curtailed because it is unreasonable to reach a decision
which contravenes or could contravene human rights unless there are
sufficiently significant countervailing considerations. In other words, it is
not open to the decision-maker to risk interfering with fundamental rights in
the absence of compelling justification. Even the broadest discretion is
constrained by the need for there to be countervailing circumstances justifying
interference with human rights. The courts will anxiously scrutinise the
strength of the countervailing circumstances and the degree of the interference
with the human right and then apply the test accepted by Bingham MR in Ex parte
Smith which is not in issue."
The
test in R v Ministry of Defence, ex parte Smith
[1996] QB 517 was based on the
submissions of counsel, which were in these terms (at page 554):
"The
court may not interfere with the exercise of an administrative discretion on
substantive grounds save where the court is satisfied . . . that it is beyond
the range of responses open to a reasonable decision-maker. But in judging
whether the decision-maker has exceeded this margin of appreciation the human
rights context is important. The more substantial the interference with human
rights, the more the court will require by way of justification before it is
satisfied that the decision is reasonable in the sense outlined above."
The
Parties have proposed and I am prepared to accept this as the correct statement
of the test that the Court ought to apply when reviewing a decision that
impinges on constitutionally guaranteed rights. However, it must at all times
be borne in mind that the jurisdiction of this Court is limited to the review
of the decision. The fact that the constitutional rights of a person affected
by the decision are implicated is not a licence for the Court to stand in the
shoes of the decision-maker and to speculate as to whether or not it would have
come to the same conclusion. The function of the High Court on an application
for judicial review is limited to determining whether or not the impugned
decision was legal, not whether or not it was correct. The freedom to exercise
a discretion necessarily entails the freedom to get it wrong; this does not
make the decision unlawful. Consideration of the alternative position can only
confirm this view. The effective administration of a tribunal of inquiry would
be impossible if it were compelled at every turn to justify its actions to the
High Court. The legislature has entrusted a broad measure of discretion to such
tribunals, including the discretion to decide how the inquiry will proceed and
what evidence will be admitted, and it is no part of the duty of this Court to
whittle down that discretion, with the inevitable deleterious effects that
would have on the effective discharge of the important public tasks with which
tribunals of inquiry are burdened. No case has been made out to satisfy me that
the Sole Member, in determining this issue in accordance with the appropriate
test, failed to come to an improper decision in the sense envisaged by Finlay
CJ in the State O'Keeffe v An Bord Pleanala.
1(b)
Relevance
I
have described this as a threshold issue because in fact the same or a very
similar issue arises when considering the proportionality question. The
question the Court must ask itself is whether or not the Sole Member could
reasonably have arrived at the view that the evidence requested of the
applicants is or could be relevant to the Terms of Reference, and particularly
to the Gogarty module. It was strenuously contended by Mr O'Neill, for the
applicants, that the evidence being sought was not relevant.
While
Mr O'Neill argued that an examination of the accounts of the applicants after
June, 1989 could have no possible relevance to the Burke payment. It is clear
that the Sole Member took the view, legitimately, it seems to me, that the
financial affairs of each of the applicants and of Mr Michael Bailey were so
intermeshed as to be inseparable, one from the other. The mere fact that the
Burke payment was alleged to have been made in June, 1989 does not mean that
traces of it could only be found in accounts prior to that date. If such a
payment was made out of funds personally available to Mr Thomas Bailey, Mr
Michael Bailey or Mrs Caroline Bailey, it might have been thought necessary to
reimburse that outlay from company funds. There is every possibility that
tracks might have been covered in accounts relating to dates after the alleged
payment. At any event, it seems to me to be impossible to contend that it was
unreasonable of the Sole Member to take this view.
Mr
O'Neill also says that, insofar as the evidence is relevant to the Gogarty
payment, this is a collateral issue that is not directly relevant to the terms
of reference and goes only to credit. Payments to Mr Gogarty are not themselves
within the Terms of Reference since' he is not a public official within the
meaning of clause A.4(a). However, there is a direct conflict of evidence
between Mr Michael Bailey and Mr Gogarty in relation not only to the Gogarty
payment but also the Burke payment. In this situation the credibility of the
two witnesses is of the utmost importance, bearing as it does on a matter at
the heart of the Tribunal's Terms of Reference. The Sole Member has already
taken the view that the financial affairs of Mr Michael Bailey cannot be
disassociated from the affairs of the applicants, and in these circumstances it
is' imperative that the Tribunal pursue its proposed inquiry. This inquiry may
perhaps show that Mr Gogarty has been lying and if so found by the Sole Member
this fact would have a significant bearing on the fundamental question at the
centre of this Inquiry. I cannot accept Mr O'Neill's submission that in
pursuing this line of enquiry the proceedings of the Tribunal are adversarial
in nature, with the effect that it is up to the parties and to the parties
alone to decide what evidence they wish to call. The proceedings of a tribunal
of inquiry are inquisitorial and in seeking the evidence at issue the Sole
Member is inquiring into a matter that may be crucially important, albeit only
indirectly, to one of the central disputes before the Tribunal. For this reason
I do not find the decision in George Ballantine & Son Ltd v FER Dixon &
Son Ltd [1974] 1 WLR 1125, referred to by the applicants, of assistance, it is
my view that the Sole Member would likely be subject to justifiable criticism
if he were not to, attempt to pursue this line of inquiry. The Court therefore
rejects the contention that the evidence being sought by the Sole Member is not
relevant. In my view, for the reasons stated, the submission of the Applicants
that the evidence is not relevant, fails.
(c)
Private/public hearing
I
have already stated that, alone among the three main issues to be considered by
the Court, this one involves a 'question of law. It is useful to turn first to
the relevant section of the Tribunals of Inquiry (Evidence) Act, 1921. Section
2 states, inter alia:
"A
tribunal to which this Act is so applied as aforesaid:-
(a)
shall not refuse to allow the public or any portion of the public to be present
at any of the proceedings of the tribunal unless in the opinion of the tribunal
it is in the public interest expedient so to do for reasons connected with the
subject matter of the inquiry or the nature of the evidence to be given . . ."
It
is readily apparent that if the public is to be excluded from any of the
proceedings of the Tribunal, there must be a public interest related to either
the subject matter of the inquiry or the nature of the evidence to be given. In
these proceedings it is urged by Mr O'Neill that there is just such a public
interest involved. He says that this is a case in which the applicants' right
to privacy is clearly implicated. There is no real issue as between the parties
on this score and I am fully prepared to accept, on the basis of the decisions
of this Court in Kennedy v Ireland [1987] IR 587 and of the Supreme Court in
Redmond v Mr Justice Flood [1999] 1 ILRM 241 at page 249 that an inquiry into
the private banking and financial affairs of the applicants has the potential
adversely to affect their vested constitutional right to privacy. Mr O'Neill
goes on to submit that the protection of constitutional rights can legitimately
be said to be in the public interest and that on this basis there is a strong
public interest pulling in favour of excluding the public from the proceedings
at which the evidence of the applicants is admitted. Although I must confess to
some difficulties with this transformation of an individual right into a public
interest, since the matter did not seem to me to be pressed particularly
strongly by Mr Clarke I am prepared to accept, without deciding, that the
protection of constitutional rights can constitute a public interest that might
justify the exclusion of the public from the proceedings of a tribunal of
inquiry. I think, however, that this process cannot add to the strength of the
applicants' case, since what is now ranged against the public interests in
favour of having the public present at tribunal proceedings is not anything
with the immediacy of an individual right but rather a more diffuse interest in
the upholding of rights generally.
(d)
Proportionality
Having
held that the Court is not entitled to interfere with the determination of the
Sole Member that the evidence in question is relevant to the inquiry of the
Tribunal, and having also accepted that the Sole Member may, in certain
circumstances, be entitled to hear evidence in private, I now come to the
proportionality issue. As I have already mentioned, the mere fact that evidence
is sufficiently relevant to justify its admission does not determine the manner
in which it should be heard. However, I again emphasise the fact that the Court
is engaged in a review procedure and that the test outlined above will
therefore apply.
It
seems to me that there are three possible conclusions that the Court might
reach on this issue. They lie on a spectrum from, at one extreme, exclusion of
the evidence, to public admission of the evidence at the other. In between,
there is the possibility that the evidence could be admitted at private
proceedings. If I may take the first of these, exclusion, the argument must be
that, notwithstanding that the evidence is of sufficient (minimal) relevance to
justify its admission, the injury to the rights of the applicants, or the
public interest in upholding those rights, is so grave that the evidence ought
nevertheless to be excluded. This would be somewhat akin to the exercise of a
trial judge in a criminal trial exercising his discretion to exclude relevant
evidence because its prejudicial effect exceeds its probative value. I am
satisfied that it would not be appropriate for this Court to interfere with the
decision of the Sole Member to admit the evidence of the applicants; It is
plainly not unreasonable for him to do so, although this does not determine
whether or not the evidence should be heard in public. I note that Mr O'Neill
frankly conceded that a private hearing would allay most of the concerns of the
applicants. If the applicants are to be successful on this issue, therefore,
the Court must hold that it was unreasonable of the Sole Member to decide to
admit the evidence in public in circumstances where he might have chosen to do
so in private.
The
applicants have sought to set what they consider to be the great weight to be
accorded to the infringement of their rights against the small relevance of the
evidence to the Terms of Reference and the fact that the Tribunal could, they
say, operate just as effectively if it were to elect to take the evidence in
private first.
The
applicants correctly say that the right to privacy is a fundamental
constitutional right. However, as Mr Clarke points out, any inquiry of a
tribunal into the affairs of a person is likely to infringe upon his or her
personal rights. To accord the weight contended for to the right to privacy, or
more precisely in this context, the public interest in upholding the right to
privacy, would have the effect of hamstringing this and all future tribunals of
inquiry.
To
this the applicants say, not so, for it is only in this sort of case, where the
interests opposed to the right to privacy are weak that the right to privacy
will triumph. However, it seems to me that the applicants have grossly
underestimated the weight to be accorded to these interests. The applicants
essentially contend that the possible relevance of the evidence sought ought to
be discounted by the low probability that it exists at all. It is pressed
strongly that the evidence it is proposed to take from the applicants is not of
any definite value to the Tribunal. They say that this was acknowledged by Mr
Desmond O'Neill in his reply to the submissions to the Sole Member of Mr Allen,
when he described the process as a "trawl". They refer to the judgment of
Geoghegan J, in Murphy v Mr Justice Flood (Unreported, High Court, 30 April,
1999), which was endorsed by the Supreme Court on appeal (Unreported, Supreme
Court, 26 January, 200). That was an application for leave to apply for
judicial review of a decision of the Sole Member to admit publicly the contents
of an affidavit of a deceased person that contained certain grave allegations,
against the applicant, which application was refused by the learned judge.
However he commented that he might have taken a different view had the Sole
Member not already read the affidavit so that he was aware of its contents. It
is sufficient to note that the comments of Geoghegan J, were, of course,
obiter, and were in any event made in the context of a leave application, in
which, all that the applicant need show is a stateable case. Moreover, the
relevance of the allegations contained in the affidavit at issue in that case
went only to explaining the context in which the applicant took certain
actions. I have already expressed my opinion that the evidence it is sought to
lead in this case may be of central, indeed possibly determinative, importance
to the Sole Member's inquiries in the Gogarty module. I therefore take the view
that, even discounting the value of the evidence by reference to the
possibility that a blank will be drawn, the weight to be attached to it remains
significant.
It
is clear that it is of fundamental importance that, where possible, the
proceedings of a tribunal of inquiry should be conducted in public. The very
reason for the establishment of such a tribunal is that urgent matters causing
grave public disquiet need to be investigated in order either to root out the
wrongdoing or to expose the concerns as misplaced. If a tribunal is to
accomplish its purpose on either count it is profoundly important that it be
seen to conduct a thorough, methodical inquiry in which no special treatment is
accorded to anyone and where matters are shielded from public scrutiny and
criticism only where absolutely necessary, such as where to do otherwise would
jeopardise the lives of individuals. The public concern and disquiet must be
met either by establishing facts which give rise to the concern or disquiet or
alternatively establish that the fears or cause for concern and disquiet were
groundless.
In
my view no case has been made out by the Applicants to justify the grant of any
of the reliefs sought and accordingly I refuse the Applicant's claim.
