Owen O'Callaghan (applicant) v Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys, Members of the Tribunal of Inquiry into Certain Planning Matters and Payments (respondents); Tom Gilmartin (Notice Party)
Judicial review - Tribunal of Inquiry - Fair procedures and constitutional justice - Access to documents for the purposes of cross-examination - Authority of Tribunal to decide what documentation is admissible- Confidentiality of documentation and information furnished to Tribunal - Whether court can intervene when breach of a constitutional right occurred within the remit of a Tribunal of Inquiry - Whether interference with right to cross-examine is justified - public interest in full disclosure by Tribunal
The High Court (before Mr Justice O'Neill); delivered July 7, 2004.
Where a complainant satisfies the court on a balance of probabilities that there has been a breach of a constitutional right, the court must intervene notwithstanding the fact that breach complained of occurred within the remit of a Tribunal of Inquiry.
The Tribunal's non-disclosure of prior oral and written statements made by the notice party deprives the applicant of the opportunity to challenge the credibility of the notice party and is an encroachment into the applicant's right to cross-examine. The right to cross-examine is not an absolute right and the court must consider whether there are countervailing circumstances justifying an interference with the applicant's right.
While, the Tribunal's acceptance of information on the basis of an assurance of confidentiality is a legitimate means of discharging its mandate, the overriding public interest requires the Tribunal to make the fullest possible disclosure. It would be damaging to the public interest if there were a withholding of material, which a person affected by the allegations made in the inquiry, might need to vindicate his or her good name.
The High Court so held in granting the order of certiorari sought and an amended version of the declaration claimed by the applicant.
Paul Sreenan, SC and John Lucey, BL for the applicant; Frank Clarke, SC and John Finlay, SC and Kilda Monney, BL for the respondent; Hugh O'Neill, SC and David Barniville, BL for the notice party.
Mr Justice O'Neill began his judgment by setting out the factual background to the matter. Mr Justice O'Neill said that the applicant was given leave to apply for judicial review by order of Mr Justice White on April 1, 2004.
The applicant sought a declaration that the refusal by the respondents to permit the applicant through his legal representative access to documents recording prior oral and written statements by the notice party to the Tribunal of Inquiry into certain planning matters and payments for the purposes of cross-examining the notice party, amounts to a failure by the respondents to observe and protect the applicant's right to fair procedures and natural and constitutional justice.
The applicant also sought an order of certiorari quashing the decision of the respondents made on March 24, 2004 whereby the respondents refused the application on behalf of the applicant for access to the documentary records of prior written and oral statements made by the notice party to the respondents.
The respondents are members of a Tribunal originally established in October, 1997 to investigate the planning history of lands in North County Dublin. In June, 1998 the terms of reference of the Tribunal were widened to empower and enable the Tribunal to investigate all improper payments made to politicians in connection with the planning process. The applicant is a property developer. His involvement with the Tribunal arises out of his acquisition of an interest in what became known as the Quarryvale site in West Dublin which is now the site of the Liffey Valley Shopping Centre.
In October, 1987 the applicant acquired lands at Neilstown/Balgaddy which had been zoned as a planned town centre in the 1983 Dublin County Development Plan. By an agreement made on January 31, 1989 the notice party agreed to purchase the applicant's interest in this site for a sum of IR£3.5 million to be paid by instalments. In due course the applicant acquired an interest in the Company known as Barkhill Limited, which was the company, being used by the notice party to acquire the Quarryvale lands.
Thereafter it would appear that the applicant and the notice party proceeded to develop the Quarryvale site but in 1996 parted company with notice party after being bought out of the project for a payment of IR£7.76 million. The notice party has made allegations concerning these transactions which are now the subject matter of an investigation being carried out by the Tribunal. The Tribunal proceeded in two modules; the first concerned the period 1987 to 1990 and the second period thereafter.
Mr Justice O'Neill said that on January 26, 2004 the Tribunal circulated a brief to parties interested in the first module, including the applicant. The only allegations against the applicant were contained in the statement of the notice party dated May 25, 2001 and were concerning his connections with politicians, suggesting that Liam Lawlor, TD advised the notice party that it was essential to deal with applicant as the applicant owned the Neilstown site.
It was further suggested that the applicant was present in Buswells Hotel when a named councillor made a demand of the notice party for £100,000. The notice party was called as the first Tribunal witness in this module and during the course of his evidence he made a series of allegations concerning the conduct of the applicant not mentioned in the statement of May 2001, which had been circulated. It also emerged that the notice party, in addition to the statement circulated, had provided other written and oral material which was recorded by the Tribunal. This material had not been circulated to the applicant or anyone else. In further cross-examination the notice party accepted that there may have been inconsistencies between this other material and his oral evidence and the statement circulated.
Following on this passage of cross-examination the solicitors for the applicant wrote to the Tribunal by letter of March 18, 2004 requesting that the other written and recorded statements of the notice party be provided to the applicant for the purposes of the cross-examination of the notice party by counsel for the applicant. On March 24, 2004 the Tribunal ruled on the application for access to these documents and refused that application. Following upon this ruling the applicant applied to this court and obtained leave to apply for judicial review.
In giving his judgment, Mr Justice O'Neill stated that the first issue to be addressed is the appropriate test to be applied to determine the correct basis upon which it is appropriate for this court to intervene by way of judicial review into the issues raised in the application. The judgment of Hamilton CJ in the case of Joseph Murphy Senior v Mr Justice Fergus Flood 2 IR 298 makes it clear that there are two circumstances in which this court can intervene, namely where there has been a breach of a person's constitutional rights and/or the decision impugned is irrational or unreasonable or flew in the face of reason or common sense.
Mr Justice O'Neill referred to the respondents' submission that all decisions of the Tribunal are to be seen as enjoying a broad range of discretion including decisions involving the evaluating of and balancing of constitutional rights. However, in Mr Justice O'Neill's view a distinction is to be drawn between the decisions of the Tribunal on all matters within its remit and questions as to whether or not the consequence of any such decision is a breach of a constitutional right. Where it is claimed that a decision of a Tribunal has the effect of breaching the constitutional right to fair procedures, the onus rests on the claimant to prove, on the balance of probabilities, that a constitutional right has been breached. If the applicant discharges that onus, then the very important jurisdiction resting in this court to vindicate constitutional rights is invoked. This court would be failing in its duty to protect and vindicate constitutional rights if it were to accept that a proven breach of a constitutional right was to be without a remedy because it occurred within the autonomous remit of a Tribunal of Inquiry.
It is well settled, that Tribunals of Inquiry such as this one are the master of their own procedures and are the authority which must determine questions of relevance and admissibility of evidence, and must from time to time balance the rights, including constitutional rights of persons appearing before them with measures necessary for the Tribunal to carry out its own duties. However, where a complainant comes to this court and satisfies this court, on a balance of probabilities, that there has been a breach of a constitutional right, this court must intervene, notwithstanding the fact that the breach complained of may very well be the end of a reflective and careful balancing of contending interests by the Tribunal, conducted within the remit of its terms of reference and with the benefit of the authority that goes with that.
Mr Justice O'Neill considered whether on the facts put in evidence before him there had been a breach of the applicant's right to fair procedures, with the consequence that there had been a failure to vindicate the applicant's constitutional right to his good name. Mr Justice O'Neill examined the degree to which the ruling of the Tribunal hampers the cross-examination by counsel for the applicant of the notice party.
Mr Justice O'Neill fully accepted the assurances given by the Tribunal to the effect that the undisclosed written or recorded statements do not contain material which is either glaringly or grossly or significantly inconsistent with the statement of the notice party of May, 2001 or the oral evidence given by the notice party. However, Mr Justice O'Neill stated that there was a real detriment to the applicant in that applicant could not cross-examine the notice party in relation to any inconsistency in these undisclosed statements or indeed the absence of any reference in them to the allegations later made in oral evidence.
Mr Justice O'Neill said that where the credibility of the notice party is of crucial importance the inhibitions resulting from the ruling of the Tribunal are very real impairments of the applicant's capacity to cross-examine. Mr Justice O'Neill pointed out that the right to cross-examine is not absolute right and it must be considered whether the Tribunal's reasons for refusing access to the documents, are of such weight as to justify an encroachment into the applicant's right.
Mr Justice O'Neill said that in the assessment of these factors it is appropriate to adopt the approach of "anxious scrutiny" as described in the judgment of Lord Wolfe MR in the case of R V Lord Saville 4 All ER page 60 where it is stated that "Even the broadest discretion is constrained by the need for their 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."
According to Mr Justice O'Neill whether the encroachment into a constitutional right is justified depends upon the validity of the factors relied upon to justify it. Given, that what is sought to be justified is a breach of a constitutional right, the factors put forward to justify this are properly to be assessed with the kind of caution, which may aptly be described as "anxious scrutiny".
Mr Justice O'Neill stated that the acceptance of information on the basis of confidentiality is a legitimate tool to be used by the Tribunal. No difficulty arises in relation to such a proposition when the Tribunal is in the private investigative stage of an inquiry. However a different approach must be adopted when the Tribunal determines that a public inquiry is merited. Clearly the problem that arises in this context is whether previous assurances of confidentiality given by the Tribunal can survive.
In this context another public interest becomes of paramount importance and that is the public interest in the fullest possible ventilation in public of all relevant and admissible evidence. Mr Justice O'Neill noted that s.2 (a) of the Tribunals of Enquiry (Evidence) Act 1921, as amended, highlights the importance of the public interest in this regard. Mr Justice O'Neill also quoted a passage of Mrs Justice Denham in the case of Thomas Bailey v Mr Fergus Flood (unreported judgment, March 6, 2000) at page 3 to reinforce the point.
Mr Justice O'Neill was of the opinion that to allay public disquiet this process must be carried out in public. The essential purpose of a Tribunal inquiry into a matter of urgent public importance is for the Tribunal to ascertain the truth and report same to the Oireachtas with recommendations where appropriate. The public interest in this process is in the full exposure in public of all admissible evidence relevant to the matter under inquiry.
According to Mr Justice O'Neill the procedures adopted by the Tribunal in its private investigative state, such as the assurance of confidentiality, could not be a factor which would prevent disclosure of relevant material at the public stage of the inquiry. Such a course would do grave injury to the essential purposes of having a Tribunal of Inquiry and hence the public interest in the fullest disclosure must prevail over the public interest in the use of confidentiality in the private investigative stage.
Having found that there has been a breach of the applicant's right to a fair procedures, Mr Justice O'Neill said it was unnecessary to determine whether in the absence of such a breach, in the context of a public inquiry, the public interest in the full disclosure of all relevant and admissible evidence, should prevail over any public interest in the use of confidentiality, to gather information in the private investigative phase. Having regard to the fact that in the context of a public inquiry there is an undisputed obligation on the Tribunal to furnish the persons affected with the full panoply of the In Re: Haughey IR 217 rights; it must be apparent to any person who comes to the Tribunal with information, that the matter may progress to a public inquiry with the necessary disclosure at that stage.
With that in mind there could hardly be a reasonable expectation of confidentiality. Mr Justice O'Neill queried whether there was any public interest in the Tribunal being able to receive under a cloak of confidentiality damaging allegations which potentially affect the good name and perhaps livelihood of the persons affected by such allegations.
Mr Justice O'Neill concluded that there had been a breach of the applicant's constitutional right to fair procedures and the encroachment thus made is not necessary for the protection of the public interest or justified by reference to any public interest. Accordingly, Mr Justice O'Neill granted the order of certiorari claimed and the declaration sought in the applicant's statement of claim but amended the declaration sought so as to confine the documents concerned to those documents which are relevant to the present module of the inquiry.
The declaration is not to include notes made by counsel solely for their own purposes, but it is to include information recorded or transcribed from the notice party by counsel.
Ronan Daly Jermyn (Cork), solicitors for the applicant; Susan Gilvarry, solicitor for the respondent; A & L Goodbody, solicitors for the Notice party.
Ann Marie Courell, Barrister