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28 September 1999

MORRIS J:

This matter comes before the Court in the following circumstances:

By Resolution of Dail Eireann it was resolved that a Tribunal be established to enquire into certain matters relating to lands referred to in a letter dated the 8 June 1998 from Mr Michael Bailey to Mr James Gogarty and to report to the Clerk of the Dail and to make such findings and recommendations as it sees fit. This Instrument is dated the 4 November 1997 and is amended by Instrument dated the 15 July 1998.

The sole member of the Tribunal is The Hon Mr Justice Flood ("The sole member") the Respondent in these proceedings. The Applicants are members of the media who have been affected by an Order made by the Sole Member on the 24 September 1999 of which they seek Judicial Review.

By Order of the 24 September 1999 the Respondent ordered that:

(1) The evidence of Joseph Murphy Senior be taken upon commission at a venue to be fixed in Guernsey, Channel Islands to commence at 10.00 am on Tuesday 28 September 1999.

(2) The Hon Mr Justice Fergus Flood shall be the Commissioner appointed to take such evidence.

(3) Those entitled to attend at the Commission shall be limited to the categories of persons set out in the Schedule to the Order.

(4) Neither the public nor any part of the public (save those persons set out in the Schedule aforesaid) shall be permitted to attend at the taking of the evidence before the Commission.

The Applicants do not appear in this Schedule.

The Applicants wish to report the proceedings which are due to take place in pursuance of this Order and have sought and obtained leave to seek Judicial Review of that Order pursuant to Order of the High Court (Mr Justice O'Higgins) on Friday 24 September 1999. He gave leave to the Respondents to seek, by way of Judicial Review an Order.

(1) That the Order of the Sole Member referred to above which precludes the Applicants from attending at the proceedings in Guernsey was Ultra Vires Section 2(a) of the Tribunal of Enquiries (Evidence Act 1921).

(2) Seeking an Order that the said Order be quashed.

(3) An Injunction restraining the Sole Member from taking any action to preclude the Applicants from attending the said proceedings in Guernsey.

This Order abridged the time for the hearing of this matter so that the issues involved might be decided prior to the commencement of the hearing in Guernsey.

The arguments advanced by the Applicants in the main centre around the provisions of the Tribunals of Enquiry (Evidence) Act 1921 and in particular Section 2 thereof.

This Section provides that a Tribunal shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal save in the two circumstances specified. They are:

"Unless in the opinion of the Tribunal it is in the public interest expedient to do so for reasons connected with the subject matter of the Enquiry or the nature of the evidence to be given."

It is the submission of the Applicants that the decision of the Sole Member to exclude them from this hearing was based on neither of these grounds. More particularly it is submitted that while the decision of the Sole Member may and indeed probably was based upon valid humanitarian grounds in that he wished to protect the witness, who is an elderly man and who has been unwell, from a necessary stress, this did not constitute a statutory ground for the making of such an Order because the reasons for making the Order were not "connected with the subject matter of the Enquiry or the nature of the evidence to be given.

In my view it is necessary to review and recognise the provisions of the Order that was made by the Sole Member.

Under Section 1(c) of the Act the Sole Member is empowered to "Subject to the Rules of Court, issue a commission or a request to examine witnesses abroad." This was the power and procedure invoked by the Sole Member in making the Order contained in paragraph 1 of his Order of the 24 September 1999. It has been submitted on behalf of the Sole Member that there is not and never has been an entitlement vested in the general public (which would include the media) to attend at or report the proceedings at the taking of the evidence on commission.

With the Submission I am in complete agreement. When a Court, or a Tribunal, directs that evidence be taken on commission it is, in my view, clear that the commission, in these circumstances, does no more than gather the evidence for the purpose of tendering it to the Court or Tribunal for its consideration. It is clear from Order 39 of the Rules of the Superior Court, which set out in detail the procedures and duties of the Commissioner, that he possesses no powers in relation to the evidence other than are necessary for the purpose of harvesting this evidence. The function of receiving or rejecting the evidence is vested not in the Commissioner but in the Court or the Tribunal. The statement of the evidence harvested by the Commissioner remains in escrow until it is submitted to and considered and either rejected or received by the Court or the Tribunal. When it is received as evidence by the Court then and only then does it become evidence irrespective of whether it is accepted or disregarded by the Court or the Tribunal. In my view the public are not entitled under the provisions of the 1921 Act to a preview of a statement of what might be evidence, depending upon the determination of the Court, to receive it and adjudicate on any possible objection which there might be to its admissibility.

That then in my view represents the position in relation to evidence taken on commission in normal circumstances. However Counsel for the Respondents have submitted to the Court that certain statements made by the Sole Member in the course of his Judgment fundamentally alter the position in relation to the evidence to be taken on commission in this case. These submissions can be summarised as follows:-

It is submitted that under the amended terms of reference the Sole Member is required to carry out such preliminary investigations in private as he thinks fit in order to determine whether sufficient evidence exists in relation to any of the matters referred to in the terms of reference to warrant proceeding to a full public enquiry into the matter and where such evidence exists to enquire fully into such matters.

It is submitted that the Tribunal has now completed the first stage of its preliminary investigation and has embarked upon the full enquiry and in these circumstances the entitlement of the public to attend provided for in Section 2 of the Act must be vindicated. In support of this submission the Court has been referred to that part of the Judgment of the Sole Member in which he says "It is true that this is a public sitting of the Tribunal, but that public aspect of the sitting is catered for by the publication in the public sittings of the Tribunal of the evidence in question by recording the deposition in the records of the public sitting."

Further in his Judgment the Sole Member says "In my view while under normal circumstances I would be quite happy to make an exception from the general practice of hearing on commission in private and accommodate the Press with whom in the course of my Judicial career I have always had extremely good relations and for whom I have the very deepest respect for their integrity and professionalism, this is not a case in which I consider that I can take that liberty for two reasons . . ."

In my view it is clear from these extracts from the Judgment of the Sole Member that he regards the procedures in Guernsey as far more than the mere taking of evidence on commission. He has established that the proceedings will be "a public sitting of the Tribunal". If this is so, and one must accept that it is, then there can in my view be no doubt but that the provisions of Section 2 of the 1921 Act applies and accordingly it is necessary to consider the provisions of Subsection (a) of that Section.

The basis upon which the Sole Member purports to exercise his jurisdiction to exclude the public is contained at page 14 of his Judgment. It reads as follows:

"Having regard to the overriding public interest and having the evidence taken and recorded I am of opinion in the light of the medical evidence that it is in the public interest expedient to exclude the public on the occasion for reasons connected with the subject matter of the Enquiry and the nature of the evidence to be given.

In my view, with great respect to the Sole Member, there is nothing in the medical evidence to which he refers which bears on "the subject matter of the Enquiry". Section 2 is designed, in my view, to permit the public to be excluded from a proceeding of the Tribunal where the subject matter of the Enquiry is such that the public interest requires that they be excluded. One might imagine circumstances in which the security of the State was the subject matter of the Enquiry and the nature of the evidence being given would require that such a step be taken.

In my view nothing in subsection (a) enables the Chairman of a Tribunal to exclude the public from the proceeding of a Tribunal simply because the well being of a witness requires it.

It is in my view appropriate that I should say that the decision of the Sole Member was completely meritorious and directed towards the efficient running of the Enquiry. However, in my view he did not have the power on the basis of medical evidence and the welfare of a witness to make the Order now challenged.

In these circumstances I propose to make an Order quashing that part of the Order of the Sole Member of the 24 September 1999 which excludes the public from the proceedings in Guernsey. I do not consider that it is necessary to give the Injunctive relief sought.