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National Irish Bank Ltd. (under investigation), Re [1999] IESC 18; [1999] 1 ILRM 321 (21st January, 1999)
THE
SUPREME COURT
Record
No. 235/98
O’Flaherty,
J.
Barrington,
J.
Murphy,
J.
Lynch,
J.
Barron,
J.
IN
THE MATTER OF: NATIONAL IRISH BANK LTD.
(under
investigation)
and
IN
THE MATTER OF: THE COMPANIES ACT, 1990.
JUDGMENT
of Mr. Justice Barrington delivered on the 21st day of January, 1999. [Nem.
Diss.]
1. This
case raises an important point on the position of the right to silence in Irish
Law.
2. The
appeal is an appeal against the Judgment and Order of Shanley J. made herein on
the 13th day of July, 1998.
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3. By
his said Order the learned trial Judge declared:-
(i) “That
persons (whether natural or legal) from whom information documents or evidence
are sought by the Inspectors in the course of their investigation under the
Companies Act, 1990 are not entitled to refuse to answer questions put by the
Inspectors or to refuse to provide documents to the Inspectors on the grounds
that these answers or documents may tend to incriminate him/her or it.
(ii) That
the procedures outlined by the Inspectors in their letters dated the 4th day of
June, 1998 (contained within exhibits C and D to the Affidavit of John Blayney
and Tom Grace sworn on the 11th day of June, 1998) are consistent with the
requirements of natural and constitutional justice ”.
4. In
the course of the hearing before this Court Counsel for the Appellants
abandoned their appeal against the second declaration quoted above. In the
course of their written submissions Counsel had stated that they were only
concerned with the rights of natural persons and were not concerned to argue
the case for legal persons.
5. The
present appeal accordingly is concerned only with the right to silence so far
as it affects natural persons. This means, in effect, that the Court
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is
concerned with the rights of Mr. John O’Reilly and other employees of the
National Irish Bank Ltd. in respect of whom he is the representative Respondent
and Appellant.
FACTUAL
BACKGROUND TO THE CASE.
6. On
the 30th March, 1998 the High Court, on the application of the Minister for
Enterprise and Employment, pursuant to S. 8 (1) of the Companies Act, 1990
appointed the Honourable Mr. John Blayney, a retired Judge of the Supreme
Court, and Mr. Thomas Grace, FCA, to be joint Inspectors to investigate and
report on the affairs of National Irish Bank Ltd. relating to;
(i) The
improper charging of interest to accounts of customers of the said National
Irish Bank Ltd. between 1988 and the 30th March, 1998;
(ii) The
improper charging of fees to accounts of customers of the said National Irish
Bank Ltd. between 1988 and the 30th March, 1998;
(iii)
The improper removal of funds from accounts of customers of the said National
Irish Bank Ltd. between 1988 and the 30th March, 1998;
(iv) All
steps and action taken by National Irish Bank Ltd., its Directors and Officers,
servants or agents in relation to the charging of such fees or interest or the
removal of any funds without the consent of the account holders and their
actions arising from the issues when discovered.
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(v) The
manner in which the books records and accounts of the said National Irish Bank
Ltd. reflected the foregoing matters.
(vi) The
identity of the person or persons responsible for and aware of any of the
practices referred to above.
(vii) Whether
other unlawful or improper practices existed in National Irish Bank Ltd. which
served to encourage the evasion of any revenue or other obligations on the part
of the Bank or third parties or otherwise”.
7. The
Inspectors, having carried out extensive preparatory work, intended to commence
interviewing employees of the Bank on the 28th May, 1998. However four firms of
Solicitors wrote to the Inspectors on behalf of employees or former employees.
One firm represents seventy-five such persons, another five, another a single
retired employee and the fourth also represents a single retired employee. The
relevant issue raised by the Solicitors, so far as the present appeal is
concerned, is whether interviewees, in the context of an investigation under
Part II of the Companies Act, 1990, have a right to refuse to answer questions
put by the Inspectors on grounds of possible self incrimination, and, if they
have not, whether answers or other evidence obtained from the employees can be
used against them in any subsequent criminal trial.
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8. The
Inspectors who had been advised that interviewees would not have the right to
refuse to answer questions on the grounds that the answers might be
incriminating, applied to Mr. Justice Kelly in the High Court for directions.
9. Kelly,
J., in deciding to settle the present issue for decision by the High Court
referred to the procedure set out in S.10 s.s.5 of the Companies Act, 1990 and
rejected it as being far too cumbrous having regard to the large number of
prospective interviewees contemplated by the present case.
10. The
relevant provision of 5.10 s.s. 5 provides that in a case where
“If
any officer or agent of the company or other body corporate or any such person
as is mentioned in subsection (2) refuses to produce to the inspectors any book
or document which it is his duty under this section to produce, refuses to
attend before the inspectors when required so to do or refuses to answer any
question which is put to him by the inspectors with respect to the affairs of
the company or other body corporate as the case may be, the inspectors may
certify the refusal under their hand to the court, and the court may thereupon
enquire into the case.”
11. In
his Judgment delivered on the 18th day of June, 1998 Kelly, J. stated:-
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“I
am also satisfied that it would not be in the interest of an expeditious and
efficient conduct of the investigation or indeed in the public interest that
these matter be left to be dealt with under the procedures prescribed in
S. 10
(5) of
the Act. They would involve a cumbersome, time consuming and wholly
unsatisfactory way of dealing with these matters, particularly in the context
of a large number of proposed interviewees. The operation of that subsection
would require individuals to be called before the Inspectors and upon refusing
to answer questions, the Inspectors in each case certifying that refusal to
this Court and a subsequent hearing of the matter.”
Under
S.7 (4) of
the Act the Court is entitled to give directions. That subsection
reads -
‘Where
the Court appoints an Inspector under this Section or
Section 8 it may, from
time to time, give such directions as it thinks fit, whether to the Inspector
or otherwise, with a view to ensuring that the investigation is carried out as
quickly and as inexpensively as possible’.
12. I
am satisfied that this is an appropriate case in which give directions so that
these issues may be determined fairly, efficiently and with the minimum of
costs being incurred”.
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STATUTORY
BACKGROUND.
Section
10 (so far as relevant and as modified as a result of the decision of the
Supreme Court in Desmond & Ors v. Glackin & Ors [1993] 3 IR 67) reads
as follows:-
10.-(1)
“It shall be the duty of all officers and agents of the company and of
all officers and agents of any other body corporate whose affairs are
investigated by virtue of
section 9 to produce to the inspectors all books and
documents of or relating to the company, or, as the case may be, the other body
corporate which are in their custody or power, to attend before the inspectors
when required so to do and otherwise to give to the inspectors all assistance
in connection with the investigation which they are reasonably able to give.
(2) If
the inspectors consider that a person other than an officer or agent of the
company or other body corporate is or may be in possession of any information
concerning its affairs, they may require that person to produce to them any
books or documents in his custody or power relating to the Company or other
body corporate, to attend before them and otherwise to give them all assistance
in connection with the
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investigation
which he is reasonably able to give; and it shall be the duty of that person to
comply with the requirement
(4) An
Inspector may examine on oath, either by word of mouth or on written
interrogatories, the officers and agents of the company or other body corporate
and such person as is mentioned in subsection (2) in relation to its affairs may-
(a) administer
an oath accordingly,
(b) reduce
the answers of such person to writing and require him to sign them,
(5) If
any officer or agent of the company or other body corporate or any such person
as is mentioned in subsection (2) refuses to produce to the inspectors any book
or document which it is his duty under this section so to produce, refuses to
attend before the inspectors when required so to do or refuses to answer any
question which is put to him by the inspectors with respect to the affairs of
the company or other body corporate as the case may be, the inspectors may
certify the refusal under their hand to the court, and the court may thereupon
enquire into the case and, after hearing any witnesses who may be produced
against or on behalf of the alleged offender and any statement which may
offered in defence
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(6) make
any order or direction it thinks fit, including a direction to the person
concerned to attend or re-attend before the inspector or produce particular
books or documents or answer any particular questions put to him by the
inspector, or a direction that the person concerned need not produce a
particular book or document or answer a particular question put to him by the
inspector
18.- “An
answer given by a person to a question put to him in exercise of powers
conferred by-
(c) rules
made in respect of the winding-up of companies whether by the court or
voluntarily under
section 68 of the
Courts of Justice Act, 1936, as extended by
section 312 of the Principal Act;
may
be used in evidence against him, and a statement required by section 224 of the
Principal Act may be used in evidence against any
person
making or concurring in making it”
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THE
RIGHT TO SILENCE AT COMMON LAW AND UNDER THE CONSTITUTION OF THE IRISH FREE
STATE.
14. The
so called right to silence was developed by the Common Law Courts in reaction
to the abuses of the Courts of Star Chamber. The classic decision on the
position of the right to silence at common law and under the Constitution of
the Irish Free State is contained in the case of the
State
(Mc Carthy) v. Lennon
[1936]
IR 485
.
15. That
case arose out of an amendment made to the Constitution of the Irish Free State
by the Constitution (Amendment No. 17) Act, 1931. The effect of that amendment
was to insert a new Article (Article 2A) into the Constitution of the Irish
Free State the provisions of which Article were to override the subsequent
Articles of the Constitution in the event of a clash between them. The
amendment also established a tribunal with wide ranging powers and, conferred
on Police Officers wide powers of arrest and interrogation and made it a
criminal offence potentially punishable by death, for an arrested person to
refuse to answer certain questions duly put to him under these powers.
16. The
prosecutor, Mc Carthy, had been duly arrested and interrogated under the
provisions of Article 2a He had initially refused to answer questions but,
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when
the implications of his refusal were drawn to his attention, had made a
statement. This statement was admitted at his trial despite Counsel’s
objection. It was the only substantial evidence against him and he was
convicted. The State (Mc Carthy) v. Lennon was an application for certiorari
and habeas corpus and the point at issue was whether the statement had been
properly admitted at the trial. The Supreme Court of the Irish Free State held
by two votes to one that it had.
17. Fitzgibbon,
J., in one of the majority Judgments, described the position of the common law
rule against self incrimination and the effect of Article 2a of the
Constitution of the Irish Free State upon it, as follows-
“By
the common law, which existed for centuries before the Free State was
constituted, statements or confessions obtained from an accused party by
threats or inducements held out by persons in authority could not be given in
evidence against him, and the maxim Nemo tenetur se ipsum accusare was rigidly
enforced by the Judges. When the Constitution of the Free State was framed that
law was continued in force. here by Art. 73. In 1791 it had been adopted by the
people of the United States in Article V of that part of their Constitution
which has always been popularly known as the Bill of Rights
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‘No
person shall be compelled in any criminal case to be witness against himself
nor be deprived of life, liberty, or property without due process of
law‘; and under our Constitution as originally adopted it would have
been impossible to put Mc Carthy ‘s statement in evidence against him.
It
is true that the rigid rule had been relaxed in a very special class of cases,
those under the Bankruptcy code, where bankrupts and insolvents were compelled
by the special Bankruptcy statutes to make full disclosures of their trading
and affairs, and it was decided that statements so made were admissible in
evidence in criminal prosecutions against the bankrupt who made them. He had,
however, this protection, that his statements were made in the presence of a
judicial officer, and not in a prison cell under what was tantamount to a
threat of capital punishment.
But
whatever may have been the state of the law in this country before the
enactment by the Oireachtas of the Constitution (Amendment No. 17) Act on
October 17th, 1931, it has been expressly enacted by sect. 2 of Art. 2A of that
statute that Art. 73 of the Constitution, which introduced the common law and
the maxim to which I have referred,
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shall
be read and construed subject to the provisions of Art. 2A and that in case of
any inconsistency between Art. 2A and Art. 73, Art. 2A shall prevail. Therefore
full effect must be given by the Courts to whatever is enacted in Art. 2A,
notwithstanding any statute or common law previously in force under Art.
73”.
18. It
does not appear that Fitzgibbon, J. was suggesting, in the passage quoted, that
the right to silence had obtained the status of a constitutional right under
the Constitution of the Irish Free State but rather that, by virtue of the
provisions of Article 73 of the Constitution of the Irish Free State, the
common law right to silence had continued as part of the law of the Irish Free
State. The distinction, however, was of no importance for that Judgment
because, whatever the status of the right to silence prior to the enactment of
the 17th Amendment to the Constitution of the Irish Free State, by virtue of
that Amendment, it was subordinated to Article 2A of the Constitution.
19. The
majority in the Court seem also to have been influenced by the provisions of
the Bankruptcy Acts and in particular by the construction which had been placed
upon them in
R.
v. Scott 7 Cox,
C.C., 164
which
had held not only that a bankrupt was bound to answer certain questions even if
they tended to incriminate him but also that his answers could be used against
him in a
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subsequent
criminal trial. Indeed Counsel for the State appears to have relied on
R.
v. Scot
for
the proposition that once the privilege against self incrimination had been
removed, it was removed for all purposes.
20. This
proposition was vigorously rejected by Kennedy, C.J. in his dissenting
Judgment. He said (at p.495 of the Report):-
“I
understood his proposition to be capable of statement shortly in this way:-
When the privilege accorded to evidence of a criminating character is removed
for any purpose, it is gone for every purpose, and the evidence is lawfully
admitted for every purpose, from which he argues that f the police are given
authority by statute to compel a person to answer questions put by them to him,
subject to a statutory penalty if he refuses to answer, any statement which the
individual makes to a policeman in answer to any such question is admissible in
evidence against the individual, free from the privilege which the individual
might otherwise set up against the admission of such statement in evidence
against him. I answer simply: “Non sequitur “. My simple logic
cannot trace any sequence from the sworn evidence given compulsorily in a Court
of law to a statement, not on oath, privately extracted by a policeman from a
man, in his custody and unprotected, without eyewitness of the alleged
examination or record
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of
what passed, without regulation of time or place or circumstance. The maxim
nemo tenetur se ipsum accusare may no doubt be derived from the English common
law in force in this country by force of statute, recognised, indeed, in some
of our own legislation. Whatever be its origin, it contains a sound principle,
one, indeed, to which appeal has been made often in the past. It is certainly
now firmly established in our practice and one of the best known rules of law
amongst the public and generally accepted. If Parliament wishes to suspend the
application of that principle I look for an express repeal of it.
There
is no trace in the Constitution Amendment of a purpose of using a prisoner
‘s extorted answers in evidence in any Court for any purpose
The
last sentence in the passage quoted illustrates the weakness of the
Court’s position. At the time of the enactment of the 17th Amendment to
the Constitution of the Irish Free State the Oireachtas was in a position to
amend the Constitution without reference to the people. The Oireachtas was, for
the time being, in the position of a sovereign Parliament. Article 2A was to
prevail over subsequent provisions of the Constitution in the event of an
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inconsistency
between it and them. There was no point therefore in appealing to such
inconsistency between it and them. The Judges were virtually in the same
position as Judges under the British Constitution. It was simply a question of
working out what Parliament meant from what Parliament said. If it was clear
from the words of the Amendment and the surrounding circumstances that
Parliament intended to remove the right of silence that was the end of the
matter. The only point which could still be made was that made by Kennedy, C.J.
to the effect that the fact that the person was legally compellable to answer a
police question did not automatically make his answer admissible against him at
a subsequent criminal trial.
Many
years later,
In
re McAllister
[1973] IR 238
Kenny,
J. stated that a bankrupt was entitled to decline to answer any question the
answer to which might incriminate him or which might disclose that he had
committed a criminal offence. He added (at p. 243):-
“I
know that it has been the practice of the Judges who have exercised bankruptcy
jurisdiction during the last twenty years to warn witnesses they are not
obliged to answer questions f their evidence would show that they had committed
a criminal offence “.
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“A
bankrupt or other person who is examined under this section shall not be
entitled to refuse to answer any question put to him on the ground that his
answer might incriminate him but none of his answers shall be admissible in
evidence against him in any other proceedings, civil or criminal, except in the
case of any criminal proceedings for perjury in respect of any such answer
CONSTITUTIONAL
PROVISIONS.
The
right to silence had its origins in the common law but was elevated into a
constitutional principle by the 5th Amendment to the American Constitution. It
grew out of the revulsion of the Judges for forced confessions as being both
unjust in their origin and unreliable in practice. Some Judges also seemed to
have felt that it was unfair to place a man in a position where he was
condemned no matter what he did. As Lord Mustill put the matter in
R.
v. The Director of Serious Fraud Office
[1993] AC I
at
32
-
“Next
there is the instinct that it is contrary to fair play to put the accused in a
position where he is exposed to punishment whatever he does. If he answers, he
may condemn himself out of his own mouth; if he refuses he may be punished for
his refusal
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An
American Judge had the same idea in mind when he referred to ‘the cruel
trilemma of self accusation, perjury or contempt” (see
Murphy
v. Waterfront Commissioners
378
US 52 at 55[1964]
.
22. The
right to silence or privilege against self incrimination was a Judge made law
and could be abridged or abolished at any time by a sovereign Parliament. The
most the Judges could do was to insist that, if Parliament wished to abolish
such a cherished doctrine of the common law it should state its intention
clearly. This was the dilemma which faced the Irish Judges in the case of the
State (Mc Carthy) v. Lennon. The Oireachtas had, for the time being,
untrammelled legislative power. It accordingly had power to introduce the
Constitution (Amendment No. 17) Act., 1931 giving power to the tribunal
established by that Act to inflict penalties up to and including the death
penalty on suspects who refused to answer questions. There was nothing the
Courts could do about it.
23. If
however one regards the right to silence as not merely a common law privilege
but as a constitutional right, one must ask oneself
“What
is the extent of it and what limitations can be placed upon it?. Is a
confession to be rejected because it was obtained by the application of
executive power but to
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be
accepted if obtained solely by the application of legislative power?. Or is
it
the
element of compulsion which makes the confession unacceptable?.”
24. The
provisions of our Constitution invoked by the Appellant as assisting his
submission are Article 40.6.1, Article 40.3 and Article 38.1.
25. The
relevant parts of these three constitutional provisions read as follows-
Article
40.
6. 1. “The
State guarantees liberty for the exercise of the following rights, subject to
public order and morality;
(i) the
right of the citizens to express freely their convictions and opinions.
Article
40.
3. 1. The
State guarantees in its laws to respect, and, as far as practicable, by its
laws to defend and vindicate the personal rights of the citizen. .
2. The
State shall, in particular, by its laws protect as best it may from unjust
attack and, in the case of injustice done, vindicate the life, person, good
name, and property rights of every citizen.
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Article
38.
1. No
person shall be tried on any criminal charge save in due course of law”.
26. In
the context of the present case the effect of Article 40.3 is merely to
reinforce the other two constitutional guarantees the first of which, as
interpreted by this Court, applies to the right to silence generally and the
second of which applies to the conduct of a criminal trial.
ARTICLE
40 SECTION 6.
This
Court in
Heaney
v. Ireland
[1996]1 IR 580
derived
the general right to silence from the right to freedom of expression guaranteed
to citizens by Article 40.6. The Court held that the constitutional right of
freedom of expression carried with it, by necessary implication, the
correlative right to remain silent. In this respect the Court followed the
reasoning of an earlier Supreme Court in the
Educational
Company v. Fitzpatrick (2)
[1961] IR 345
which
derived from the constitutional right of freedom of association the correlative
right to refuse to, associate. In this respect the present Supreme Court
differed from the then President of the High Court Mr. Justice Costello who had
derived the right to silence from Article 38.1 of the Constitution. But the
Court held that the right to silence was not absolute but might in certain
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circumstances
have to give way to the exigencies of the common good provided the means used
to curtail the right of silence were proportionate to the public object to be
achieved.
27. In
the Heaney case the Court was dealing with a provision of the Offences against
the State Act, 1939 which was an Act dealing with threats to the security of
the State and the Court held that the curtailment to the right of silence
contained in Section 52 of the Act was no more than was necessary in the
circumstances.
28. The
present case deals with the investigation of commercial fraud. No doubt this
may often be a much less serious matter than the matter under investigation by
the Court in the Heaney case but nevertheless potentially it is a matter of
great importance in modern society.
29. The
powers of Inspectors appointed by the Secretary of State under the British
Companies Act, 1985 are broadly similar to the powers of Inspectors appointed
by the Court under our Companies Act, 1990. For that reason it is interesting
to note that in the Saunders case the European Court of Human Rights in its
Judgment dated the 17th December, 1996 at paragraph 67 said that the powers of
Inspectors appointed under the British Companies Act, 1985:-
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were
essentially investigative in nature and that they did not adjudicate either
inform or in substance. Their purpose was to ascertain and record facts which
might subsequently be used as the basis for action by other competent
authorities -prosecuting, regulatory, disciplinary or even legislative
(judgment of 2l September 1994, Series A no. 294-B, p. 47, paragraph 61). As
stated in that case a requirement that such a preparatory investigation should
be subject to the guarantees of a judicial procedure as set forth in Article 6
paragraph 1 would in practice unduly hamper the effective regulation in the
public interest of complex financial and commercial activities (ibid., p.48,
paragraph 62).
30. Accordingly
the Court ‘s sole concern in the present case is with the use made of the
relevant statements at the applicant ‘s criminal trial “.
31. Likewise
if there are grounds for believing that there is malpractice or illegality in
the operation of the banking system, it is essential, in the public interest,
that the public authorities should have power to find out what is going on. It
appears to me that the powers given to the Inspectors under Section 10 of the
Companies Act, 1990, as set out earlier in this Judgment, are no greater than
the public interest requires. Their meaning is clear and they pass the
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proportionality
test. Accordingly it appears to me that interviewees are not entitled to refuse
to answer questions properly posed to them by the Inspectors pursuant to the
Inspectors’ powers under
the Act.
ARTICLE
38.1
32. Article
38.1 deals with a different matter. That Article, as reinforced by Article
40.3, deals with the conduct of a criminal trial and provides that no person is
to be tried on any criminal charge
“save
in due course of law.”
The
phrases
“due
course of law”
and
“due
process of law”
like
the phrase
“equality
before the law”
embody
dynamic constitutional concepts into which lawyers have obtained deeper
insights as Society has evolved. But it is doubtful if the principle of
proportionality - so important in other branches of constitutional law - can
have any useful application here. A criminal trial is conducted
“in
due course of law”
or
“with
due process of law”
or
it is not. The question then arises would a trial, at which a confession
obtained from the accused under penal sanction imposed by statute, was admitted
in evidence against the accused, be a trial in due course of law?
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SHOULD
THE COURT ATTEMPT TO GIVE GUIDANCE AT THIS STAGE.
33. A
preliminary difficulty arises in attempting to answer this question. The
difficulty is that the conduct of a criminal trial in due course of law is
primarily a matter for the trial Judge. The question of whether a statement is
or is not a voluntary statement depends upon the circumstances in which it was
made. The fact that Inspectors are armed with statutory powers or may even have
invoked them does not necessarily mean that a statement made in reply to their
questions is not voluntary. This consideration appears to have influenced the
learned High Court Judge and to have caused him to decline to give any further
guidance than is contained in his Judgment.
34. Nevertheless
a practical problem has arisen in the course of the Inspectors’
enquiries. The Inspectors and the Solicitors advising the Bank officials
disagree as to the correct interpretation of the Inspectors’ powers and
as to the implications for the Bank officials of answering the
Inspectors’ questions. In these circumstances the Inspectors have applied
to the High Court for guidance. Kelly, J. took the view that the
Inspectors’ application was a proper one and decided to settle the
present issue as the most practicable way of resolving the problems which had
arisen between the Inspectors and the Solicitors for the Bank officials. Under
these circumstances this Court - while
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in
no way attempting to pre-judge or anticipate the actual decision of any trial
Judge who may, hereafter, have to conduct a criminal trial arising out of any
matter disclosed by the Inspectors investigations, should, in my opinion give
further guidance.
THE
SAUNDERS CASE.
35. Earlier
in this Judgment I have referred to the fact that the majority Judges in the
European Court in the Saunders Case found powers such as those vested in the
Inspectors in the present case to be necessary to enable the public authorities
to investigate fraud. At the same time the Court found that some of the answers
given by Saunders in reply to Inspectors in that case were self incriminating
and that the use made by the prosecution, at the subsequent criminal trial, of
Saunders replies to the Inspectors was such as to deny him a
‘fair
trial”
within
the meaning of Article 6 paragraph 1 of the European Convention on Human
Rights. At paragraph 74 of its Judgment the Court stated:-
“The
public interest cannot be invoked to justify the use of answers compulsorily
obtained in a non-judicial investigation to incriminate the accused during the
trial proceedings .... Moreover the fact that Statements were made by the
applicant prior to his being charged
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26
does
not prevent their later use in criminal proceedings from constituting an
infringement of the right.”
THE
FERREIRA CASE.
36. A
similar line of reasoning led the Constitutional Court in South Africa in
Ferreira
& Ors. v. Levin & Ors.
[1996] ISA 484
to
conclude that part of S.4 17 of the South Africa Companies Act, 1973 was
unconstitutional. The section in question dealt with the examination of
Directors and Officers of an insolvent Company in the course of a winding up.
It provided that any such person should be required to answer questions put to
him notwithstanding that the answer might tend to incriminate him and that
“any
answer given to any such question may thereafter be used in evidence against him
“.
The Court held that the provision contained in the words quoted was
unconstitutional as violating an accused person’s right to a fair trial.
THE
IRISH CASES.
37. A
fundamental rule of Irish law is that a confession is not admissible at a
criminal trial unless it is voluntary. In
The
People (Attorney General) v. Cummins
[1972] IR 312
(at p. 322)
Walsh,
J. delivering the unanimous Judgment of the Supreme Court, reiterated this
principle in the following words:-
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“It
should be said at once that a trial Judge has no discretion to admit an
inculpatory or an exculpatory confession, or statement, made by an accused
person which is inadmissible in law because it was not voluntary. ft is a
matter for the trial Judge to decide, when he has heard the evidence on the
point, whether or not he will admit a statement, but f he is satisfied that it
was not voluntary then his decision can be only to exclude it”.
38. This
dictum of Walsh, J. was applied by the Court of Criminal Appeal in the later
case of
The
People v. Gilbert
[1973] IR 383
.
In
that case the accused was tried in the Circuit Court on indictment for
receiving a motor car knowing it to have been stolen, contrary to Section 33
s.s.1, of the Larceny Act, 1916. Before the trial a policeman had invoked
Section 107 of the Road Traffic Act, 1961, and had asked the accused to state
who was using the car at a particular time. The accused had answered that he
was using it at that time. Under Section 107 of the Act of 1961 a person
commits an offence if he fails to give any information in his power relating to
the identity of the person using a vehicle, if so requested by a policeman. The
accused had been informed of the penalty under Section 107 before he was
questioned. At the trial of the accused evidence of his incriminating statement
was given and he was convicted.
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39. The
Court of Criminal Appeal held that the accused’s statement made in
answering questions posed pursuant to Section 107 of the Road Traffic Act, 1961
was not a voluntary statement and that evidence of that statement should not
have been admitted in evidence at the trial.
40. In
the course of its Judgment the Court (at p. 386, 387 of the Report) stated:-
“That
a statement by an accused person which is not voluntary cannot be admitted in
evidence is quite clear; this has been confirmed recently by the Supreme Court
in The People (Attorney General) v. Cumin ins
The
Court then quotes the passage quoted above from the Judgment of Mr. Justice
Walsh in the Cummins case and continues-
“As
in the present case the statement in question was made after the Sergeant had
stated that a failure or refusal to answer would constitute an offence
involving serious penalties, in our opinion it could not be said in any sense
to be a voluntary statement and so the trial Judge should not have admitted it
in evidence on the trial of the offences with which the appellant was charged
under the Larceny Act, 1916. We express no opinion on the position which would
have
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existed
if the charges had been for offences under the Road Traffic Acts”.
41. The
reference to the Road Traffic Acts in the last sentence is puzzling. Presumably
the Court did not wish to cast any doubt on the powers of the Police to collect
information under the Road Traffic Acts. But, in principle, a confession, once
involuntary, would appear to be equally objectionable no matter what the nature
of the criminal prosecution.
42. A
rather different view was taken, albeit obiter, by the Court of Criminal
Appeal, in the case of
The
People v. McGowan
[1979] IR 45
.
In
that case the accused had been arrested under Section 30 of the Offences
against the State Act. He had subsequently made an incriminating statement
which both the trial Court and the Court of Criminal Appeal were satisfied was
a voluntary statement. Section 52 of the Offences against the State Act, 1939
had not been invoked by the police while the accused was in custody under
Section 30 and there was no evidence that the accused was even aware of the
provisions of that Section. The status of statements made by an accused person
in responce to the exercise by the police of their powers under Section 52 of
the Offences against the State Act was not therefore properly before the Court.
The
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43. Judgment
does however contain the following passage which is obviously obiter:-
44. Even
if s.52 of the Act of 1939 had been invoked, or even if the accused had been
aware of its provisions, in the view of this Court the submission would still
not be sound in law. Section 52 of the Act of 1939 is almost identical in terms
with s. 15, sub-s. 1, of Article 2A of the Constitution of the Irish Free
State. In The State (Mc Carthy) v. Lennon the former Supreme Court held that a
statement taken in pursuance of the provisions of s. 15 of Article 2 was
lawfully taken and was admissible in evidence. Counsel on behalf of Mc Carthy
had objected at the trial to the admission of the statement in evidence on the
ground that it was not voluntary, being made under compulsion by reason of the
punishment to which persons declining to answer questions put to them pursuant
to s. 15 of Article 2A rendered themselves liable. In the course of his
judgment, Fitzgibbon J said at p. 500 of the report: - ‘The plain and
obvious effect of Art. 2A sect. 15, is to empower the Garda
Síochána to interrogate persons detained on suspicion under the
Article, and sect. 16 makes it a criminal offence to refuse to answer, or to
answer untruthfully. Therefore statements so obtained are obtained lawfully,
and I know of no law which makes statements or confessions lawfully obtained or
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made,
inadmissible as evidence in any legal proceeding. At p. 506 Murnaghan I said
that he could not see how relevant evidence which had been obtained in a lawful
manner could be declared inadmissible. This Court respectfully agrees with
those opinions. In the opinion of this Court, the law applicable is succinctly
summarised at p. 248 of the 4th edition of Cross on Evidence where it is stated:-
‘It
seems that, f information has been lawfully obtained pursuant to statutory
provisions and there is no express restriction on the use which can be made of
the information, the person giving it cannot object to its being used in
evidence against him either on the ground that such use would infringe his
privilege against self-incrimination or because the information would not have
been given voluntarily’. Therefore, this ground also fails. Accordingly,
the Court refuses both applications for leave to appeal “.
45. The
passage quoted compares Section
52
of
the Offences against the State Act, 1939 with Section 15 s.s.1 of Article 2A of
the Constitution of the Irish Free State but does not advert to the fact that
Article 2A of the Constitution of the Irish Free State overrode all subsequent
Articles of that Constitution whereas Section 52 of the Offences against the
State Act, 1939 is governed by the present Constitution. Moreover it quotes
from Cross on
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46. Evidence
without adverting to the fact that Cross was referring to the British
Constitution where Parliament is supreme whereas Statutes of the Oireachtas are
subject to the Constitution and must be interpreted in the light of it.
47. The
State (Mc Carthy) v. Lennon was again referred to by the Court of Criminal
Appeal in the
People v. Doyle (reported with the People v. Madden)
[1977] IR 336
.
The
Judgment of O’Higgins, C.J. in that case contains a discussion of a
hypothetical problem as to whether a person who had been arrested under Section
52 of the Offences against the State Act, 1939 and had given a true account of
his movements in response to a demand made under Section 52 of that Act would
be entitled to refuse to give a second account of his movements and whether, if
he gave such second account, it would be admissible against him at his trial.
But it is clear that the Chief Justice, relying on the decision in
The
State (Mc Carthy) v. Lennon
considered
that the first account which he had given of his movements would be admissible.
The passage appears at pages 356/357 of the Report and reads as follows:-
"
..Apart from the provisions of this section, any person detained by the Garda
Síochána, whether under the provisions of the Act of 1939 or
otherwise, would be entitled in law to refuse to answer any questions or to
refuse to give any account of his movements or any information concerning the
commission or intended commission of
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any
criminal offence. Furthermore, apart from this section any person so detained
would not, subject to the possibility of committing the offence of creating a
public mischief or of misprision, be committing any criminal offence f the
account he gave of his movements or the information he gave with regard to the
commission or intended commission of a criminal offence were false or
misleading. Therefore, the section must be construed as one which limits or
restricts what otherwise is the right of a person to remain silent under
certain circumstances and, in particular, his right not to incriminate himself
Furthermore, it is a section creating a criminal offence and, on either basis,
must be strictly construed: see The Emergency Powers Bill, 1976.
If
a person, of whom is demanded whilst in custody under the provisions of the Act
an account of his movements for a spec fled period, gives such an account which
is complete and is neither false nor misleading, it would not appear to
constitute an offence were he to refuse a request by the same, or another,
member of the Garda Síochána to give again an account of his
movements for the same period. The confining of the obligation of a person
under s. 52 to the giving of a single account of his movements for any
specified period, provided it is complete and true, does not prohibit
questioning of that
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person
by members of the Garda Síochána further or by way of repetition,
though it does remove the sanction in the event of the person detained refusing
to answer such further or repeated questions.
The
former Supreme Court held in The State (Mc Carthy) v. Lennon (in respect of
almost identical provisions contained in s. 15 of Part III of the schedule to
Article 2A of the Constitution of the Irish Free State) that evidence obtained
as a result of a request made by a member of the Garda Síochána
was lawfully obtained and was admissible in any court, even though the request
was made with the sanction that a refusal to comply with it constituted a
criminal offence. Were it not for the express provisions in s. 52 of the Act of
1939, evidence obtained as the result of informing a person in detention that,
if he did not give an account of his movements, he would be liable to
imprisonment would clearly be inadmissible as a statement obtained under threat
- quite apart from the fact that it would also constitute a breach of the
Judges' Rules. Therefore, if any of the statements made by the accused and
challenged on his behalf had been made by him as a result of a repeated request
for an account of his movements and he had complied on a previous occasion with
a request from the same or another Garda, the question
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would
undoubtedly arise as to whether such statements could receive the apparent
protection of s. 52 of the Act of 1939, or whether they should be excluded as
being involuntary “.
Finally,
in
The
People v. Quilligan (No. 3)
[1993]
2 IR 305 the Supreme Court rejected a challenge to the constitutionality of
Section 30 of the Offences against the State Act as being unconstitutional but
left open the question as to whether the right to silence or the protection
against self-incrimination is an unenumerated right pursuant to the Constitution.
48. The
relevant passage appears at p. 323 of the Report and reads as follows:-
49. The
Court is not satisfied, having regard, in particular, to the various
protections of the right of silence which have been above set out in this
decision, that the terms of s. 30 and the interrogation expressly authorised by
s.30, sub-s. 5 available to a member of the Garda Síochána in
relation to any person suspected of any crime and in detention, whether under
s. 30 or otherwise; constitutes an invasion of or failure to protect the right
of silence of a citizen. On that basis the Court is satisfied that the
challenge under this heading must fail. The Court does not find it necessary,
therefore, to express
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any
view on the question as to whether or in what circumstances or subject to what
qualifications. if any, a right of silence or protection against
self-incrimination is an unenumerated right pursuant to the Constitution “.
CONCLUSION.
50. From
the above discussion I draw the following conclusion. The decision in
The
State (Mc Carthy) v. Lennon
is
not a safe guide for any person seeking to establish the rights of the citizen
under the Irish Constitution. That decision was based on an interpretation of a
provision deriving from Article 2A of the Constitution of the Irish Free State
which Article was designed to bypass all the constitutional guarantees
contained elsewhere in that Constitution. The fact therefore that Section 52 of
the Offences against the State Act may be almost identical in wording with
Section 15 of Part III of the Schedule to Article 2A of the Constitution of the
Irish Free State is of little relevance. The important distinction is that
Section 15 was intended to be above constitutional challenge while Section
52
is
subject to the Constitution. It appears to me that the better opinion is that a
trial in due course of law requires that any confession admitted against an
accused person in a criminal trial should be a voluntary confession and that
any trial at which an alleged confession other than a voluntary confession were
admitted in evidence against the accused
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person
would not be a trial in due course of law within the meaning of Article 38 of
the Constitution and that it is immaterial whether the compulsion or inducement
used to extract the confession came from the Executive or from the Legislature.
SECTION
18.
18. “An
answer by a person to a question put to him in exercise of powers conferred by-
(a)
Section 10 may be used in evidence against him ...”
52. There
is no doubt that the quoted provision covers Civil Cases but it is necessary to
address the problem of whether the quoted provision is broad enough to cover
the admission of involuntary confessions in criminal cases. One could argue
that if it was intended to remove the common law privilege against
self-incrimination the Statute should have said so. On the other hand it can be
argued that the Statute expressly preserves legal professional privilege (See
S.23) but does not mention the common law privilege against self-incrimination.
It is therefore possible to argue that had it been intended to
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preserve
the common law privilege against self-incrimination the Statute would have said
so.
53. However
this line of reasoning becomes irrelevant once one is satisfied that Article 38
of the Constitution confers on accused persons a right not to have involuntary
confessions accepted in evidence at a criminal trial and that this right is
reinforced by the general provisions of Article 40.3 of the Constitution. The
Companies Act, 1990 is a post constitutional Statute and must therefore be
presumed to be constitutional. This means that in interpreting the Act the
constitutional interpretation must be favoured. As Walsh, J., delivering the
Judgment of the Supreme Court, put the matter in
East
Donegal Co-Operative Ltd. v. Attorney General
[1970] IR 317
at
p. 341.-
“Therefore,
an Act of the Oireachtas, or any provision thereof will not be declared to be
invalid where it is possible to construe it in accordance with the
Constitution; and it is not only a question of preferring a constitutional
construction to one which would be unconstitutional where they both may appear
to be open but it also means that an interpretation favouring the validity of
an Act should be given in cases of doubt. It must be added, of course, that
interpretation or construction of an Act or any provision thereof in conformity
with the Constitution cannot be pushed to the point where
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the
interpretation would result in the substitution of the legislative provision by
another provision wit/i a different context, as that would be to usurp the
functions of the Oireachtas. In seeking to reach an interpretation or
construction in accordance with the Constitution, a statutory provision which
is clear and unambiguous cannot be given an opposite meaning”.
54. Accordingly
the better interpretation of Section 18 in the light of the Constitution is
that it does not authorise the admission of forced or involuntary confessions
against an accused person in a criminal trial, and it can be stated, as a
general principle, that a confession, to be admissible at a criminal trial must
be voluntary. Whether however a confession is voluntary or not must in every
case in which the matter is disputed be a question to be decided, in the first
instance, by the trial Judge.
THE
FRUITS.
55. The
Judgment in this case follows the decision in
Heaney
v. Ireland
[19961
1 IR 580
insofar
as that case decided that there may be circumstances in which the right of the
citizen to remain silent may have to yield to the right of the State
authorities to obtain information. It is not inconsistent with the decision
Rock
v. Ireland
[1998]
2 ILRM 37
that
there may be circumstances
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in
which a Court is entitled to draw fair inferences from the accused having
remained silent when he could have spoken. It follows
The
People v. Cummins
[1972]
IR 312
insofar
as that case decided that for a confession to be admissible in a criminal trial
it must be voluntary.
56. In
the course the submissions the question arose of what would be the position of
evidence discovered by the Inspectors as a result of information uncovered by
them following the exercise by them of their powers under Section 10. It is
proper therefore to make clear that what is objectionable under Article 38 of
the Constitution is compelling a person to confess and then convicting him on
the basis of his compelled confession. The Courts have always accepted that
evidence obtained on foot of a legal search warrant is admissible. So also is
objective evidence obtained by legal compulsion under, for example, the drink
driving laws. The Inspectors have the power to demand answers under Section 10.
These answers are in no way tainted and further information which the
Inspectors may discover as a result of these answers is not tainted either. The
case of
The
People v. O’Brien
[1965] IR 142
,
which
deals with evidence obtained in breach of the accused’s constitutional
rights has no bearing on the present case. In the final analysis however, it
will be for the trial Judge to decide whether, in all the circumstances of the
case, it would
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be
just or fair to admit any particular piece of evidence, including any evidence
obtained as a result or in consequence of the compelled confession.
57. In
these circumstances I would uphold the decision of the learned High Court Judge
but would add the statement that a confession of a Bank official obtained by
the Inspectors as a result of the exercise by them of their powers under
Section 10 of the Companies Act, 1990 would not, in general, be admissible at a
subsequent criminal trial of such official unless, in any particular case, the
trial Judge was satisfied that the confession was voluntary.
© 1999 Irish Supreme Court
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