JUDGMENT of Mr. Justice Fennelly delivered the 21st day of April 2010.
Introduction
1. Anyone living in Ireland over the past twenty years, when Tribunals have loomed so large in the life of a nation, cannot be unaware of the cost of tribunals. The Oireachtás establishes a Tribunal of Inquiry to investigate “a definite matter of urgent public importance.” (Section 1(1) of the Tribunals of Inquiry Act, 1921). It is natural to assume that the cost of inquiring for public purposes should be borne by the public, the State. Thus, the taxpayer would bear the principal burden.
2. But, investigation of matters of public interest inevitably impacts on individuals. The current edition of Wade and Forsyth on Administrative Law (10th Ed. Oxford 2009) contains the following statement:
“The inquiry is inquisitorial in character, and often takes place in a blaze of publicity. Very damaging allegations may be made against persons who may have little opportunity of defending themselves and against whom no legal charge is preferred.”
The authors omitted a further statement which had appeared in the 9th Edition which the appellants cite in their written submissions:
“…an inquisitorial public inquiry is not always easily controllable, and its evils would be grave if its use were not infrequent.”
But individuals have to pay for their generally involuntary involvement. This appeal is concerned with the claim of two individuals and a company, whose affairs have been scrutinised by a Tribunal, to recover their costs.
3. Hamilton C.J. in his judgment in Haughey v Moriarty [1999] 3 IR 1, at page 57, acknowledged the severity of the encroachment by tribunals on individual rights:
“There is no doubt but that the terms of reference of the Tribunal of Inquiry and the exceptional inquisitorial powers conferred upon such tribunals under the Act of 1921, as amended, necessarily expose the plaintiffs and other citizens to the risk of having aspects of their private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against them. This may cause distress and injury to their reputations.”
Nonetheless, these undoubted private rights and interests must yield to the public interest. As the Chief Justice explained at page 59:
“The exigencies of the common good require that matters considered by both Houses of the Oireachtas to be of urgent public importance be inquired into, particularly when such inquiries are necessary to preserve the purity and integrity of our public life without which a successful democracy is impossible.”
4. In his High Court judgment in the same case, Geoghegan J made a number of observations about the costs borne by individuals, to which I will refer later. He stated, in particular, at page 14, that any monetary loss incurred in meeting the requirements of the Tribunal was “simply an unfortunate consequence of the legitimate right to such hold an inquiry.”
5. Thus, an individual may become entangled innocently or otherwise, but involuntarily, in the workings of a Tribunal. He may have to pay dearly to protect his good name. Where, after all this, his name is tarnished by the Tribunal’s findings, must he pay all or part of his costs or even of the costs of the Tribunal? Society pays to uncover the truth; anybody who is asked must help the Tribunal; if a finding is adverse to the individual who should pay?
The problem
6. The present appeal demands clear answers to these questions. The appellants were centrally involved in an important part of the Tribunal’s inquiries into corruption in the planning process. They spent many months of their time and a great deal of money participating in its work. Ultimately, where there were conflicts of evidence, they were not believed. The Tribunal found them guilty of making corrupt payments. It also found that, by the mere fact of giving the evidence that was disbelieved, they were guilty of hindering and obstructing the work of the tribunal.
7. The questions which arise, on the appellants’ arguments, are whether the Tribunal, when making the principal, substantive findings in its reports to the Oireachtás:
• had power to make findings of hindering and obstructing;
• was entitled to conclude that the fact of giving evidence which is not believed amounts, in itself, to “hindering and obstructing” the work of the Tribunal;
• was bound to give prior notice to the appellants that it was considering making a finding of hindering and obstructing.
8. A number of separate questions arise in relation to the Tribunal’s refusal to award any costs to the appellants. One of the principal issues is whether the Tribunal was entitled to found its decision to refuse an order for costs on its substantive findings of corruption; another is whether the Tribunal made valid findings of obstruction and hindering.
9. The first to fourth named respondents (in effect the Tribunal) raise preliminary objections on the grounds of delay, which must be considered in detail.
10. These are the principal points to be considered. There is also a challenge to the constitutionality of some of the legislation providing for costs orders. Well-established principles require the Court address that issue only if it is unavoidable.
Relevant statutory provisions
11. In order to consider these points it is necessary to explain the context in which they arise. Two statutory provisions arise for particular consideration.
12. The first is section 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act 1979, which provides:-
“If a person…
(c) wilfully gives evidence to a Tribunal which is material to the inquiry to which the tribunal relates and which he knows to be false or does not believe to be true, or
(d) by act or omission obstructs or hinders the Tribunal in the performance of its functions…….
the person shall be guilty of an offence.”
13. One of the appellants’ complaints is that the Tribunal’s findings of obstruction and hindering of its work amount to a decision that they committed a criminal offence.
14. The power to award costs was conferred by section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. In its original version, that provision read:
“Where a tribunal, or, if the tribunal consists of more than one member, the chairman of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the tribunal or the chairman, as the case may be, may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.”
15. Following amendment by section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 section 6(1) now reads:
“Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of the opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the resolution passed by each House of the Oireachtás relating to the establishment of the tribunal or failing to cooperate with or provide assistance to, or knowingly giving false or misleading information to, the tribunal), there are sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may, either under the tribunal’s or the chairperson’s own motion, as the case may be, or on application by any person appearing before the tribunal, order that the whole or part of the costs
16. The underlined words, which were added in 1997, provided the principal focus of debate on the appeal.
17. In addition, it may be noted that the Terms of Reference of the Tribunal recorded the desire of the Houses of the Oireachtás that:
“All costs incurred by reason of the failure of individuals to cooperate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, the borne by those individuals.”
The Tribunal and its reports
18. The first named appellant, Mr Joseph Murphy junior is engaged in the business of property development. At all material times, he was the chairman of the third-named appellant. The second named appellant was, at the material times, managing director of the third named appellant, and a contracting company in the Murphy group.
19. The Planning Tribunal was established by order of the Minister for the Environment and Local Government dated 4 November 1997, pursuant to resolutions of both Houses of the Oireachtás passed respectively on 7th and 8th October 1997 to inquire into specified matters of urgent public importance set out in its Terms of Reference. The specified matters all related, so far as the appellants are concerned, one way or the other, to allegations made by Mr James Gogarty, who has since died.
20. The Terms of Reference were amended on 15th July 1998 so as to oblige the Tribunal to "inquire urgently into and report ……………” on whether any corrupt payments were made to Mr Ray Burke connected with any public office or position held by him. Mr Burke had held, inter alia, several ministerial posts in the government. According to the Tribunal, this amendment had the effect of requiring it to investigate the entire public life of Mr Burke from 1967 to 1997.
21. The appellants participated in approximately 163 days of public hearings at the Tribunal between 12th January 1999 and 14th July 2000. They provided extensive discovery and made statements to the Tribunal.
22. In its Second Interim Report, the Tribunal reported, inter alia, on the payment of money to Mr Burke at a meeting attended by Mr James Gogarty in the period immediately prior to 15th June 1989.
23. The Third Interim Report dealt with two separate sums of money alleged by Mr James Gogarty to have been paid by way of corrupt payment to Mr George Redmond, who had for many years held the position of Assistant City and County Manager of Dublin.
24. The Tribunal made findings in the two reports to the effect that the appellants had made corrupt payments, respectively, to Mr Burke (the Second Interim Report) and to Mr George Redmond (the Third Interim Report). It has to be emphasised that the appellants have never, and do not in these proceedings, mount any challenge to the validity or correctness of these substantive findings. The following discussion of those findings may, nonetheless, cast light on the justification for the contemporaneous findings, in each report, that the appellants, or some of them, had hindered and obstructed the work of the Tribunal.
Second Interim Report
25. The second interim report dealt with three distinct "modules." The appellants and this appeal are concerned only with what it called the “Gogarty Module.” The Tribunal identified the core allegation as one made by Mr James Gogarty to the effect that he had witnessed the handing over of two envelopes, said to contain IR£40,000 each, to Mr Burke at a meeting which took place at Mr Burke’s home at Swords on or in the days immediately before 15th June 1989. The payments were claimed to have been made corruptly in order to secure the support of Mr Burke in achieving rezoning and planning changes with regard to certain lands owned by the Murphy companies.
26. The same report contains findings relating to "Co-operation with the Tribunal," which are closely linked, on the one hand, to the substantive findings and, on the other hand, to the ruling regarding costs. For that reason, it is necessary to give a brief account of the nature of the substantive findings.
27. A central, perhaps even the decisive, controversy surrounded the question of who had attended the meeting at Mr Burke's house when the alleged corrupt payment was made. Mr Gogarty insisted that Mr Joseph Murphy junior was one of those present. Mr Burke and Mr Michael Bailey, who were admittedly present, equally strongly maintained that he was not, as did Mr Murphy himself. In short, of the three people admittedly present at the meeting, only Mr Gogarty claimed that Mr Joseph Murphy, junior was there.
28. The Tribunal heard evidence from a number of witnesses and devoted a major part of its report to examining and resolving a large body of evidence related to this dispute. Mr Murphy was normally based in and lived and worked principally in London. The extent and number of his visits to Ireland in June 1989 were examined in minute detail. The Tribunal concluded that Mr Murphy “could have” attended meetings in Dublin, even when he was shown to have been in London at some time on the same day. Its findings in respect of three disputed meetings over this period were as follows.
29. In relation to the first alleged meeting:
“However, it is clear that notwithstanding the alibi evidence offered in relation to Mr Murphy Junior’s meeting with friends in Waterford, a meeting could have taken place with Mr Bailey on either 31st May or 1st June, and still have allowed Mr Murphy Junior to attend his meeting in Waterford later on 1st June.”
30. In relation to the second alleged meeting:
“The Tribunal is satisfied that Mr Murphy Junior could have attended a meeting in Dublin on 8th June 1989 notwithstanding the evidence that he received telephone calls in London, both that morning and that night. A meeting could have taken place at JMSE’s premises on the afternoon of 8th June provided Mr Murphy Junior had flown from London to Dublin and returned on the same day.”
31. In respect of the crucial third meeting in Mr Burke’s house the Tribunal’s finding is in the following terms:
“The Tribunal is not convinced by the alibi evidence offered to the Tribunal that Mr Murphy Junior could not have attended a meeting in Dublin in the week commencing 12th June 1989 and recognises that for such a meeting to have taken place on 12th June it would involve a rejection of the alibi evidence offered as to Mr Murphy Junior’s movements that day by Mr Greene. The Tribunal believes that it is possible that Mr Murphy Junior could have attended an afternoon meeting at the JMSE premises in Dublin on 8th June but still have attended his workplace in London earlier that day. If Mr Murphy Junior returned to Ireland on either 13th or 14th to attend a meeting it would involve the rejection of the evidence of Mr Mycroft, a JMSE engineer, in so far as he believed that Mr Murphy Junior was working all day in London on each of those dates.”
32. In its final resolution of the dispute the Tribunal, rather than explicitly preferring the evidence of Mr Gogarty to that of Mr Murphy, expressed itself in the negative as follows:
“ in weighing the evidence of the alibi witnesses in the totality of the evidence surrounding the making of the payment to Mr Burke, the Tribunal , concludes that the alibi evidence does not prove that Mr Joseph Murphy Jnr. could not have attended at least three meetings in Dublin between 31st May and 15th June 1989.”
33. The Tribunal, in its Third Interim Report, found that Mr Joseph Murphy junior had made two separate corrupt payments to Mr George Redmond. The first payment, in a sum found to be not less than IR£12,246 was for devising a strategy resulting in the service charges and levies payable respect of certain lands of the Murphy group being fixed at a beneficially low level. The second was in a sum £15,000 found to have been paid by Mr Joseph Murphy junior to Mr Redmond at a meeting at Clontarf Castle Hotel attended by Mr Gogarty, Mr Michael Bailey, Mr Frank Reynolds and Mr Joseph Murphy junior. With the exception of Mr Gogarty himself, all those persons denied that any such meeting had taken place at all. The evidence, which the Tribunal accepted, with regard to the second payment was that Mr Joseph Murphy junior informed Mr Gogarty sometime after the payment had been made that he had "sorted out" Mr George Redmond with regard to the loans in question. Mr Joseph Murphy junior denied that he had made such a statement or made such a payment. He was supported in the latter respect by the evidence of Mr Redmond.
34. It will become clear at a later point that these conclusions of the Tribunal on the substantive issue had a decisive bearing on its findings in the chapter on cooperation with the Tribunal.
Co-operation with the Tribunal; hindering and obstruction
35. The Tribunal included a separate chapter in its Second Interim Report under the title: "Co-operation with the Tribunal.” It referred to the general obligation of all parties to provide truthful information, adding that failure to do so had the “capacity to hinder and obstruct the Tribunal….” It proceeded as follows:
“Any person, duly summoned to do so, who gives evidence to the Tribunal which is material to its enquiry, which that person wilfully [sic] knows to be false or does not believe to be true or who by act or omission obstructs or hinders a Tribunal in the performance of its functions, commits a criminal offence.”
36. The foregoing paragraph, apart from the misplacing of the word, “wilfully,” follows the wording of section 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act 1979, quoted above.
37. The Tribunal further remarked that the failure of a witness to give a truthful account "can amount to a failure to cooperate with the Tribunal.”
38. The Tribunal then proceeded, in Chapter 17, in the case of some 20 witnesses, to make a finding as to whether the specified witness had either “obstructed or hindered” or "failed to co-operate” with the Tribunal. It made the following finding regarding Mr Joseph Murphy Jnr.:
“The Tribunal is satisfied that Mr Joseph Murphy Jnr. obstructed and hindered the Tribunal by: a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at the home of Mr Burke in June 1989 at which he handed to Mr Burke a sum of not less than £30,000,
b) Failing to give a truthful account of his dealings with Mr Michael Bailey with regard to the participation proposal, in which it was envisaged that Mr. Michael Bailey would receive 50% of the value of the Murphy’s’ North Dublin lands in return for procuring planning permission and building bye law approval in respect thereof.
c) Giving a false account of the involvement of Mr. James Gogarty in the sale of the Murphy lands and the role played by him in connection with the payment of JMSE monies to Mr. Burke.
d) Giving a false account of his dealings with Mr. Michael Bailey subsequent to the publication of the Sunday Business Post articles.
e) Falsely constructing an alibi which was untrue.”
39. In the case of Mr Frank Reynolds, it found:
“The Tribunal is satisfied that Mr Frank Reynolds obstructed and hindered the Tribunal by: a) Failing to give a truthful account of his involvement in the assembly of funds which were paid to Mr Burke by JMSE.
b) Falsely ascribing to Mr Gogarty a role in the payment of monies to Mr Burke which he knew to be untrue.
c) Failing to give a truthful account of his dealings with Mr Michael Bailey
d) Failing to give a truthful account of the steps taken by him subsequent to the publication of the Gogarty allegations in the Sunday Business Post editions of 30th March and 6th April 1996.
e) Colluding with Mr Joseph Murphy Snr. and Mr Joseph Murphy Jnr. to present a false account to the Tribunal of the role played by Mr James Gogarty in the payment of JMSE monies to Mr Ray Burke.”
40. Chapter 8 of the Third Interim Report was also headed “Co-operation with the Tribunal.” It contained very similar findings of obstruction and hindering against Mr Joseph Murphy junior and Mr Frank Reynolds, in each case, based on the substantive findings which the Tribunal had made preferring the evidence of Mr Gogarty to that of the two appellants.
41. Neither report made any findings of failure to co-operate with the Tribunal in any respect other than the giving of false evidence. For example, none of the appellants were found to have failed to co-operate with the Tribunal during its preliminary investigative stages by failure to make proper discovery, to provide documents or to attend hearings. In fact, it will later be seen that the Chairman accepted that there had been co-operation specifically in respect of the discovery of documents over a long period of time.
42. The appellants have complained, without being contradicted, that the Tribunal never at any time gave notice to any of them that it was considering making findings that they had hindered or obstructed the work of the Tribunal.
Procedure for dealing with the costs
43. By a letter dated 16th April 2003, the then Sole Member of the Tribunal gave notice to the appellants of his intention to hold a public sitting on 6th May 2003:
“on the principles which should be applied by him in exercising his discretion under this section in relation to the costs claimed by persons who fall within the category of persons against whom findings of corruption were made or who have been found to have obstructed or hindered the Tribunal or to have failed to cooperate with or to provide assistance to the Tribunal as requested.”
44. The procedure was to involve a decision, in the first instance, on the principles, which the Tribunal would apply. Thereafter, the Tribunal would hear applications for costs "from individuals who fall within the aforementioned category who are seeking an order for their own costs to be paid by the State.”
45. Only the Second Interim Report had then been published. The hearing was to relate, therefore, only to individuals who might wish to recover costs, which they had themselves incurred. No question has yet arisen about recovery of costs incurred by the Tribunal itself or others against the appellants. The hearing was to relate only to persons who had been found by the Tribunal:
• to have been guilty of corruption, or
• to have obstructed or hindered the Tribunal, or
• to have faded to cooperate with or to provide assistance to the Tribunal.
46. The hearing proposed for 6th May did not take place. Mr Justice Flood, who had up to that time served as Sole Member, retired on 27th June 2003. The Tribunal was reconstituted and the two relevant costs hearings took place before His Honour Judge Mahon, as Chairman.
47. By letter dated 14th May 2004, the Tribunal, as newly constituted, gave notice that it was the intention of the Chairman to hear submissions regarding costs on the 14th and 15th of June 2004. The hearing would now relate to conduct which was reported on in both the Second and Third Interim Reports. The letter mentioned findings of corruption and of failure to cooperate, but did not make reference to obstruction or hindering. In the meantime, on 21st April 2004 the appellants had commenced the present proceedings. Their Plenary Summons disputed the power of the Tribunal to make findings of obstruction or hindering.
48. The chairman heard oral submissions on the 14th and 15th of June 2004. He was empowered by section 2 of the Tribunals of Inquiry (Evidence) Act, 2004 to determine issues of costs arising from the reports of Mr Justice Flood. Nothing turns on that power. The appellants made extensive submissions in support of their applications for costs pursuant to section 6(1).
49. On 30th June 2004 the Chairman of the Tribunal made a ruling on the principles he would apply to applications for payment of their costs by persons in respect of whom findings of corruption had been made. He noted that the Second and Third Interim Reports "included findings of corruption and/or findings of non-co-operation with the Tribunal on the part of certain named parties.”
50. He concluded inter alia that the Tribunal was required to have regard to the findings of the Tribunal when exercising its discretion on costs. He based this on the provisions of section 6(1) of the Tribunals of Inquiry (Evidence) Act, 1979, as amended in 1997. He ruled:
“ I am firmly of the view that the word "findings" in the context of the present inquiry means the findings of corruption, and that I am entitled to have consideration [sic] to such findings when exercising my discretion as to whether or not to award costs to any party to whom representation was granted. In so holding I wish to emphasise that a finding of corruption does not of itself mean that I must, in the exercise of my discretion, refuse the costs of a person who has been found to have been corrupt. It is a factor to which I am entitled to have regard in determining, whether in all the circumstances, it is equitable to make an award of costs, whether in whole or in part.”
51. The chairman mentioned four matters which he said he was required, in accordance with the section, to have regard and listed a large number of other matters including "non-co-operation or failure to assist." At no point, however did he make any reference to the findings that the appellants had hindered and obstructed the Tribunal.
52. The Chairman of the Tribunal made his final substantive ruling on the applications for costs of the appellants on 9th November 2004. While no estimate of the amount of costs had been submitted, he thought they would undoubtedly be "very substantial".
53. "On the issue of cooperation with the Tribunal,” he noted and summarised the findings of obstructing and hindering. He also noted that the two personal appellants had been found "to have knowingly engaged in or assisted corruption.” He remarked that it was "not unreasonable…... to emphasise the substantial compliance with the Tribunal discovery requirements… over a prolonged period of time.” He described the issue which he had to consider as being whether “the incidences of co-operation on the Applicants’ part were such as would enable me to, for good reason, exclude or separate them from the very serious adverse findings relating to co-operation that were found by the Tribunal in both the Second and Third Interim Reports.” Cooperation by a person could not be viewed as positive "if the overall thrust of his involvement with the Tribunal was to have been knowingly untruthful, destructive and misleading."
54. The ultimate decision requires to be quoted in full:
“Taken as a whole, the adverse findings of obstructing and hindering the Tribunal made against the Applicants was so serious, so extensive and so far reaching, as to clearly lead any reasonable person considering them to the conclusion that the individuals concerned, …………were intent from the outset in ensuring that the Tribunal would not find the truth.
To put it more simply, the conduct of the Applicants in their dealings with the Tribunal was unlawful and disreputable, and amounts to a fundamental disregard for the very purpose of the Tribunal, and their legal duty to cooperate with it.
In spite of the serious findings of corruption on the part of some of the Applicants, I would have considered awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am firmly of the few that there should be a strong incentive for a party who fully cooperates with the Tribunal by giving a truthful account of their knowledge of the events under enquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse findings on substantive issues such as corruption.
In all the circumstances therefore, I do not believe it would be appropriate to award any costs to the Applicants and I therefore refuse the application.”
55. The tribunal acknowledged that the appellant's legal representatives had participated fully in public hearings of the tribunal, as well as the extensive discovery that had been made by the appellants over a prolonged period of time. The reasons for the decision to refuse to award any costs to the appellants were: a) the adverse findings of hindering and obstruction; b) the substantive findings of corruption. The Chairman did not suggest that there were any other grounds upon which his decision could have been based.
The proceedings
56. There have been two interim reports from the Tribunal, two decisions relating to the appellants’ applications for costs and two sets of legal proceedings. I will provide below a brief chronology to make it easier to understand the objections on grounds of delay raised by the respondents. First, I will endeavour to give an account of the legal proceedings.
57. It is right to note it at the outset that the appellants issued no proceedings within the judicial-review time limits seeking to challenge the Second Interim Report. This is a principal plank of the delay objection.
58. In their Plenary Summons of 20th April 2004 the appellants disputed the findings made by the Tribunal in both the Second and Third Interim Reports on the subject of obstruction and hindering, raising a number of legal grounds, to which it will be necessary to return. They also sought a declaration that section 6 (1) of the Act of 1979, as amended, is invalid having regard to the provisions of the Constitution.
59. The proceedings, therefore, were issued barely within three months after the publication of the Third Interim Report, but some 19 months later than the publication of the Second Interim Report. On the other hand, both the Plenary Summons and the Statement of Claim, delivered on 4th May 2004, pre-dated any of the decisions on costs made by the Chairman of the Tribunal and even the letter of the Chairman dated 14th May 2004. In their original form, these proceedings sought declarations that the findings of obstruction and hindering made in the two reports had been made ultra vires that they were null and void and that they could not be taken into account for the purposes of decisions as to costs.
60. I turn now to the judicial review proceedings. Although they did not take the normal course and have, in effect, been absorbed into the plenary proceedings, they are highly material on the delay issue.
61. The appellants formulated a statement required to grant an application for judicial review dated 2nd February 2005. Mr Joseph Murphy junior swore a grounding affidavit on 27th January 2005. On 23rd February 2005, the appellants, without apparently applying ex parte for leave, issued a Notice of Motion returnable for 7th March 2005. The Appellants sought, in those proceedings, firstly, various declarations as to the constitutionality of the legislation, principally section 6(1) of the Act of 1979, but secondly, an order of certiorari of the decision of the Tribunal of 9th November 2004, refusing them their costs.
62. The application for leave came before Kelly J by way of Notice of Motion in the High Court. He made an order:
1. That there be no order on the Judicial Review application and that there be liberty to apply
2. That the costs of the application be costs in the cause of the plenary proceedings
3. that the parties do amend their pleadings in the plenary proceedings
4. providing for the notice of trial and the listing of the action.
63. The effect of this order appears to have been to merge the application for judicial review into the plenary proceedings.
64. The appellants duly amended the Statement of Claim on 6th April 2005. The pleadings, as so amended, contested the validity of the findings of obstruction and hindering in the two interim reports, the ruling of 30th June 2004 regarding the principles governing an award of costs and the decision refusing costs made on 9 November 2004.
High Court judgment
65. Following a hearing lasting six days, Smyth J delivered judgement on 14 February 2006.
66. The respondents had advanced two preliminary objections. The first was that it was an abuse of process on the part of the appellants to challenge the findings of the Tribunal by way of plenary proceedings. They should have proceeded by way of judicial review. Smyth J rejected this objection: there was no single exclusive procedure; the English decision in O'Reilly v Mackman [1983] A.C. 237 had not been followed in this jurisdiction. There is no appeal on this point, though it reappears in the written submissions of the respondents.
67. On the other hand, the learned judge considered that there had been delay. The considerations as to time, applicable in the case of judicial review, should be applied so as not to enable a plaintiff to circumvent the provisions of Order 84 of the Rules of the Superior Courts. (see O’Donnell v Dun Laoghaire Corporation. [1991] I.L.R.M. 301).
68. The learned judge held the proceedings to be out of time insofar as they involved a challenge to the Second Interim Report, but not in respect of the Third. The reports were distinct and separate. He did not think that it was reasonable for the appellants to await the outcome of the Third Report before challenging the Second. He also held that the appellants were within time to challenge the decision on costs of 9th November 2004.
69. He rejected the appellants’ attack on the findings of obstruction and hindering: the Tribunal was entitled to make a finding of obstruction and hindering at one and the same time as its primary findings; the distinction between failure to cooperate, on the one hand, and obstruction and hindering was a question of degree; the Tribunal was under no obligation to give notice of the possibility of a finding of hindering and obstructing. He thought that “findings of hindering and obstructing may fairly be regarded as incidental and consequential upon those things which the Oireachtás authorised.”
70. He also held that the Tribunal was entitled to base its decision on costs on the substantive findings of corruption. Referring to the dictum of McCarthy J in Goodman v Hamilton [1992] 2 I.R. 542 at page 605, he expressed the view that “the amendment [to section 6(1)] effected by the Act Of 1997 was directed towards the difficulties imposed by perhaps a perceived narrow interpretation of the act of 1979 in the Goodman decision.”
The appeal
71. It was agreed between counsel at the hearing that the Court had the following issues to decide on this appeal:
1. Was the Tribunal entitled to take into account its substantive findings of corruption when exercising its jurisdiction in respect of costs?
2. Was the Tribunal entitled to make findings of obstruction and hindrance either:
3. To what extent are the appellants precluded from advancing issues by reason of delay?
4. Was the learned High Court Judge correct to preclude an argument on the constitutionality of section 6 of the 1979 Act as amended by reference to the rule in Todd v Murphy?
72. The appellants have made no attempt to challenge the substantive findings of corruption made against them in the Second and Third Interim Reports. For the purposes of this appeal, those findings must be taken as they stand. The fundamental objective of the litigation is to set aside the decision of the Chairman of the Tribunal refusing to award them any of the costs incurred by them in participating at the Tribunal. The appellants advance two legal bases: firstly, that the substantive findings of corruption should not be taken into account; secondly, that the Tribunal, for a number of reasons, should not have taken account of the findings of obstruction and hindering.
73. It appears to me that, if either of those grounds is made out, the decision of 9th November 2004 cannot stand. First, however, it is necessary to consider the objection based on delay.
Delay
74. The following chronology will help an understanding of the relevant time periods:
26th September 2002 Second Interim Report Published
21st January 2004 Third Interim Report published.
20th April 2004 Plenary Summons issued
30th June 2004 Judge Mahon rules on costs principles
28th July 2004 Amended statement of claim
9th November 2004 Judge Mahon final ruling on costs
2nd February 2005 Judicial review commenced
75. The appellants wish to challenge:
76. The learned trial judge held that the appellants were in time in respect of their challenge to the Third Interim Report and the costs ruling of 9th November 2004. However, the respondents continue to rely on delay with regard to the challenge to the Third Interim Report by the plenary summons issued on 20 April 2004. Firstly, they continue to maintain that the proceedings should have been brought by way of judicial review. Secondly, they were issued a matter of a day to within the three-month period: thus, they were not issued promptly.
77. I do not think that either of these arguments is viable. The learned trial judge was clearly correct. Unlike the cases of planning and immigration decisions, there is no statutory provision making judicial review the exclusive means of challenging Tribunal decisions of the sort at issue here. The decision in O'Reilly v Mackman has never been applied in Irish law. This is not to say that the judicial review time limit can be circumvented by resort to plenary action. O’Donnell v Dun Laoghaire Corporation represents long-established authority to that effect. Nor do I accept that the appellants claim can be defeated on the ground that they did not move "promptly". In the absence of some special feature, such as prejudice to a third party, the normal rule should be that judicial-review proceedings commenced within the period allowed by O.84, r, 21 (1) of the Rules of the Superior Courts are in time. As I stated in my judgement in O'Brien v Moriarty [2006] 2 IR 221 at page 237, “matters have not reached the stage where an application made within time can be defeated in the absence of some special factor.” Moreover, if the appellants had moved by way of judicial review to quash the Third Interim Report, the appropriate relief would have been certiorari, for which the specified time is six not three months.
78. It follows that the appellants were within time to challenge the Third Interim Report.
79. Equally, and for similar reasons, there is no doubt that the challenge to the costs decision of the Tribunal of 9th November 2004 was commenced within time. The appellants sought leave to apply for judicial review by way of certiorari. The order of Kelly J preserved the rights of all parties. The effect of this order was to consolidate the application for judicial review of the decision of 9th November 2004 with the already existing plenary proceedings.
80. There remains, therefore, the question of whether the appellants should be permitted, by means of the plenary proceedings commenced on the 20th of April 2004, to attack the second Interim report. They were clearly out of time to do so. The appellants must convince the court that there is “good reason” to extend the time. The learned trial judge was not convinced by the reasons proffered by the appellants.
81. Firstly, I should address the issue of prejudice raised in submissions by both sides. The respondents legitimately criticise the appellants’ reliance on absence of prejudice to the opposing party. I agree that the absence of prejudice to the opposing party can never, on its own, justify an extension of time. In my judgment in Dekra Eireann Teoranta –v- Minister for the Environment and Local Government [2003] 2 IR 270 at page 304, I said that an applicant “cannot without more … invoke the absence of any prejudice to the opposing party as the sole basis for the suggested good reason”. The respondents are entitled to rely on any prejudice which they would suffer as a result of an extension of time. They rely on two points. Firstly, they say that, if the appellants had made their challenge to the Second Interim Report in time, the Tribunal would have been obliged to alter “some of its procedures which led to the Third Report.” But that Report was already in existence in September 2002. The respondents are scarcely suggesting that it would have been altered before publication. This suggestion is, at best, speculative. In substance, what it suggests is impossible. The procedures had already been followed. No suggestion is made as to how they could have been remedied. The second heading of alleged prejudice is also unmeritorious. It is that “amending legislation was introduced on the 5th May 2004 which may have been in a different form or to a different effect had there been a Court decision on the Appellants’ complaints (and particularly if the Appellants’ complaints had been upheld).” Speculative is a mild word to apply to this submission. Assuming that the word “may” ought to read” might,” it seems to imply that the Tribunal was potentially in a position to influence the legislature so as to cure retrospectively a defect in its own procedures. In my view, this Court could not give countenance to such a proposition.
82. I have come to the conclusion that there is good and sufficient reason to extend time in the present case.
83. There is an unusual combination of circumstances linking the two reports with the decision on costs. In particular, there is a very close link between the two interim reports both inter se and when viewed in combination with the decision on costs. Each of the reports finds one or more of the appellants to have been guilty of obstructing and hindering the work of the Tribunal.
84. The validity of these findings is contested on legal grounds, which are essentially identical. In summary, they are that they involved findings of the commission of a criminal offence, that they were made without any notice and that the grounds for the findings were identical with those of the substantive findings. The two reports were prepared by the Tribunal at the same time. Publication of the Third Interim Report was postponed for a reason unconnected with the appellants. It would be wrong, unjust and anomalous if the Court were to be permitted to reach a conclusion that the findings in the Third Interim Report were invalid but allow the Second to stand. That would create an undesirable legal anomaly. The findings of one report would have been declared invalid by the court. Similar findings in the other report would be objectively invalid for the same reason, but without any judicial ruling.
85. An even more difficult problem arises when one considers the links between the reports and the rulings on costs. As and from 14th May 2004, the Tribunal treated the recovery of costs in relation to the two reports as a single issue. There was one hearing in June 2004 and one decision on costs including the hearings on 30th June 2004 and on 9th November. The final ruling of 9th November 2004 took into consideration “the adverse findings of obstructing and hindering,” taking them “as a whole.” It would be impossible to segregate the findings of obstruction and hindering made in the two reports, since the Tribunal itself treated them as one whole. Thus, if the appellants were to succeed in their challenge to the findings of the Third Report, but could not attack the Second, the decision of the Chairman would be based in part on findings declared to be invalid and in part on identical rulings, upon which the court could not rule.
86. This is a unique set of circumstances. Even assuming the appellants to have been at fault in failing to challenge the Second Interim Report in time, their clear right to challenge the Third Report and the costs ruling virtually compels the Court to extend the time and I would do so.
87. It is then necessary to consider, in an appropriate sequence, the agreed issues, as set out above. It will not be necessary to address the question of constitutionality of the legislation if the appellants succeed on either of the first two issues. I propose to consider Issue number 2 in the first instance.
Hindering and obstruction
88. The agreed issue is:
Was the Tribunal entitled to make findings of obstruction and hindrance either:
89. The appellants contest the findings of obstruction and hindering on a number of grounds, which I identify as follows:
• The Tribunal formulated the findings as findings that the appellants had committed criminal offences;
• The Tribunal gave no advance warning that, at the same time as its substantive findings of corruption, it was considering making findings of obstruction and hindering against the appellants;
• The findings were indistinguishable from and seemed to flow automatically, with no independent consideration, from the substantive findings of corruption:
90. These arguments are very closely related and cannot be considered in isolation from each other. Ultimately, their importance for these proceedings is that they played a crucial part in the decision of 9th November 2004, whereby the Tribunal declined to order that any of the appellants recover any of their costs.
91. Since what is at stake is the appellants’ right to have their costs applications considered, it seems best to commence by recalling the provisions of section 6(1) of the Act of 1979 as amended.
92. I am not at this point considering the Tribunal’s reliance on substantive findings. The relevant words, as interpolated in parentheses by the Act of 1997, are: “the terms of the Resolution passed by each House of the Oireachtás relating to the establishment of the Tribunal or failing to cooperate with or provide assistance to, or knowingly giving false or misleading information to, the Tribunal.”
93. Section 6(1), even after amendment, contains no reference to obstruction or hindering. Thus, the Tribunal had no power to investigate allegations of obstruction and hindering as a separate matter. The learned trial judge considered the distinction between obstruction and hindering and failure to co-operate to be a mere matter of degree. Normally, I would agree with him. It would depend on the words used. In this case, it is clear that the Tribunal, in Chapter 17 of its Second Interim Report, advisedly chose to use the precise wording of 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act, which makes it a criminal offence where a person “by act or omission obstructs or hinders the Tribunal in the performance of its functions………” The Tribunal expressly stated that such a person "commits a criminal offence.” Furthermore, it drew a distinction throughout Chapter 17 of the Second Interim Report and Chapter 8 of the Third Interim Report between obstruction and hindering and failure to co-operate.
94. It is, of course, perfectly clear that the Houses of the Oireachtás may pass a resolution asking a tribunal of inquiry to investigate and report on whether criminal offences have been committed. Finlay C.J. in his judgment in Goodman v Hamilton held that:
“… an inquiry…… into the question as to whether criminal acts have been committed, even to the extent of inquiring whether criminal acts have been committed by a named person or persons, and the reporting of the truth or falsity of such an allegation to the Legislature by the sole member of the Tribunal cannot under any circumstances be construed or deemed as a trial on a criminal charge or an offence within the meaning to be attached to those phrases in Article 38 of the Constitution."
95. This case is, however, different. The Terms of Reference do not refer to hindering and obstructing and a finding of such behaviour cannot be said to be within their scope.
96. Paragraph 17-04 refers to the obligation which is "upon every witness called to the Tribunal to give a truthful account of the matters upon which they are questioned…” The entire of that introductory paragraph relates to witnesses and evidence. That chapter does not refer to any other form of failure to cooperate with the Tribunal. As has been stated above, the ensuing list of witnesses heard by the Tribunal distinguishes between those found to have “obstructed and entered” it and those who have “failed to cooperate”. This analysis strongly suggests that the Tribunal equated obstruction and hindering with the giving of evidence, which it disbelieved.
97. This conclusion receives some support from an examination of the Tribunal’s treatment of the evidence. I tend to agree with the statement in the written submissions of the appellants that it treated the evidence of Mr Joseph Murphy junior as an attempt to set up an alibi, which would disprove the possibility that he did in fact attend the meeting at Mr Burke’s house. It may be going too far to suggest, as the appellants do, that this amounted to a reversal of the onus of proof. Nonetheless, it does appear from a close reading of the report that the conclusion that the alibi did not exclude the possibility of Mr Murphy's attendance led, as the appellants suggest, "seamlessly and without further analysis or finding to the conclusion that he had in fact attended the meeting".
98. This is not, of course, to question in any way the conclusion of fact reached by the Tribunal, which was entirely within its province and which, moreover, has not been contested by the appellants. What does appear, however, is that the evidence was finely balanced, that the conclusion turned significantly on the fact that the alibi or alibis did not exclude the possibility of Mr Murphy having attended one or other of the meetings. The report does not state that the evidence of Mr Gogarty is credible and that that of Mr Murphy is not. In short, other than the conclusions in Chapter 17, the report contains no statement to the effect that Mr Murphy gave false evidence.
99. Thus, I do not think that the findings of the Tribunal on obstruction and hindering were validly reached. The Tribunal did not directly address the question whether the appellants had failed to cooperate, which is one of the matters mentioned in section 6(1). Instead, it addressed the different question of whether they had “hindered and obstructed” the Tribunal. I do not say that they might not have used one or other of both of those words in an appropriate context. The actual context leaves little room for doubt that it was making a distinction between a section that created a statutory offence and the section, which gave it jurisdiction in relation to costs. Furthermore, the Tribunal appears to have treated its own conclusion that a person’s evidence was to be rejected on a substantive issue as leading automatically and without any further analysis to the conclusion on obstruction and hindering.
100. Finally, I turn to the question of notice. It is alleged by the appellants and not contested that the Tribunal did not at any stage alert the appellants to the possibility that it was contemplating making findings in relation to obstruction and hindering. The case for the respondents is simple. It says that no notice was necessary. The learned trial judge agreed.
101. The appellants complain that they were denied a fair hearing, because the Tribunal gave them no warning that it was considering making a finding of obstruction and hindrance. They say that the Tribunal was required to apply a heightened standard of fair procedures to any proposed findings of such gravity. The findings affect them in their reputation, good name and their liability to incur substantial costs; they should have been given an opportunity to comment on the Tribunal’s primary findings for the specific purpose of resisting a consequent finding of hindrance or obstruction: at a minimum the Tribunal should have put its primary findings in relation to the resolution of the evidential conflict before the parties before making findings of obstruction or hindrance arising out of those self same findings.
102. The basic position of the respondents, upheld by the learned trial judge, is that the appellants, in fact, had sufficient notice, even if they had no specific notice that findings of hindering and obstructing were under consideration. The Tribunal has power to award costs. Those appearing before it, being legally represented, must be aware of the possibility of a finding of non-co-operation.
103. In resolving this issue, it seems right to take, as a starting point, the fact that the Tribunal enjoys an express statutory power to award costs. The Tribunal itself treated this as a distinct function when it commenced the procedure leading up to the costs hearings, firstly, on 16 April 2003 and, secondly, when the newly appointed Chairman gave notice on the 14th May 2004. It is certainly true that the primary obligation of the Tribunal to report, in accordance with its Terms of Reference, to the Houses of the Oireachtás and its power to award costs pursuant to section 6(1) of the Act of 1979, as amended, are distinct and separate functions.
104. In applying the rules of natural justice to these procedures, it must be borne in mind, as is acknowledged by the applicants, that the requirements of natural justice vary according to the character of the proceedings and the gravity of findings. The fact that the Tribunal is entitled to have regard, inter alia, to its view as to whether a person has failed to cooperate with it does not necessarily mean that there has to be a separate hearing on that issue, so long as persons potentially affected have reasonable notice of the possibility of such findings. It might well, nonetheless, be good practice for a Tribunal to give some advance notice of the relationship between cooperation with the Tribunal and any decision regarding costs, which it might later make.
105. In any event, that is not what happened in the present case. The Tribunal made considered findings that the two personal appellants had hindered and obstructed its work. It is not contested that the appellants had no notice of the possibility that such a finding might be made. It requires no expansion of the rules of natural justice to state that anyone exposed to the risk of adverse findings of that character, amounting to an accusation of criminal conduct, should receive reasonable advance notice. On that separate ground, I do not believe that the findings of hindering and obstructing the work of the Tribunal made in the Second and Third Interim Reports can be allowed to stand.
Effect of invalidity of findings of hindering and obstructing on costs ruling
106. The decision of the Chairman of the Tribunal of 9th November 2004 was dually motivated. It was based in part on “the serious findings of corruption”. The Chairman explained that he “would have considered awarding [the appellants] a portion of the costs had they chosen to fully and honestly cooperate with the Tribunal,” which necessarily implies that he would have deprived them of part of their costs by reason of the corruption findings, in any event. Moreover, he had already ruled, as a matter of principle, on 30th June 2004 that he was entitled to have regard to those findings.
107. The Chairman could not have been clearer in stating, in addition, that “the adverse findings of obstructing and hindering the Tribunal made against the Applicants were so serious, so extensive and so far reaching, as to clearly lead any reasonable person considering them to the conclusion that the individuals concerned, ………… were intent from the outset in ensuring that the Tribunal would not find the truth.”
108. The decision was, therefore, founded upon two reasons. The parties have not referred the court to any authorities concerning decisions made for mixed reasons. In Kennedy v The Law Society [2002] 2 IR 458, this court held that a power exercised for two purposes at an equal level of importance, one of which was unlawful, had been invalidly exercised.
109. There cannot be any doubt but that the adverse findings of hindering and obstructing constituted a major reason for the decision of the Tribunal. I have come to the conclusion that the findings of the Tribunal on obstruction and hindering were not validly reached. They could not, therefore, have lawfully been taken into account when deciding on costs. Such a decision falls within the less well known part of the judgment of Greene M.R. in Associated Provincial Picturehouses Limited v Wednesbury Corporation [1948] I K.B. 223 that a decision may be quashed if an applicant can show that the decision-maker has taken into account a legally irrelevant consideration. As Finlay C.J. expressed it in his judgment in P. & F. Sharpe Ltd. v Dublin City and County Manager [1989] I.R. 701 t 717, “the decision-making authority must have regard to all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced.”
110. I am satisfied that the decision of 9th November 2004 must be quashed as having been made, at least in part, on the basis of a legally irrelevant consideration.
111. At this point, in this judgment, the appellants have established their entitlement to the central relief which they seek. The decision refusing them costs should be set aside. The consequence is, however, that the matter will have to be reconsidered by the Tribunal. For this reason, it is not possible to avoid addressing the first of the agreed issues.
Taking account of substantive findings of corruption when exercising its jurisdiction in respect of costs
112. The Chairman of the Tribunal, following detailed submissions on the question, reached a clearly expressed conclusion that he was bound, in the exercise of his discretion regarding the award of costs, to have regard to the substantive findings made by his predecessor, Mr Justice Flood, that the appellants were guilty of making corrupt payments. He emphasised that he was not bound to refuse costs but that the corruption constituted “a factor to which [he was] entitled to have regard in determining, whether in all the circumstances, it is equitable to make an award of costs, whether in whole or in part.”
113. The appellants say that, both on principle and on authority, the Tribunal was not entitled to have regard to their substantive findings when deciding the issue of costs.
114. Section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, in its original form, provided that a tribunal was to make its decision “having regard to the findings of the Tribunal and all other relevant matters…”
115. It was in that form that the section came to be interpreted in the dictum of McCarthy J in Goodman v Hamilton, cited above. The full statement upon which the appellants rely reads:
“Section 6: the liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of the Inquiry. When the Inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be represented at the Inquiry should have their costs paid out of public funds. The whole or part of those costs may be disallowed by the Tribunal because of the conduct of or on behalf of that party at, during or in connection with the Inquiry. The expression ‘the findings of the Tribunal’ should be read as the findings as to the conduct of the parties at the Tribunal. In all of the cases the allowance of costs at public expense lies within the discretion of the Tribunal, or, where appropriate, its Chairman.”
116. Three written judgments were delivered in that case, i.e., by Finlay C.J. and by Hederman and McCarthy JJ. O’Flaherty and Egan JJ. expressly agreed with each of the judgments delivered. Thus, the judgment of McCarthy J would appear to express the unanimous view of the Court on the points upon which he expressed views.
117. The respondents submit, however, that that the statement of McCarthy J is an obiter dictum. Furthermore, they say that the amended section makes it clear that substantive findings may be taken into account.
118. I am quite satisfied that the dictum of McCarthy J, which I have just quoted, is not obiter. The principal argument of the plaintiff in that case was that the establishment of the tribunal invaded the constitutionally reserved judicial sphere. Both the High Court and the Supreme Court rejected that contention. Finlay C.J., at page 590 of the report, by way of contrasting the function of the tribunal with the judicial function remarked that it was no “part of the function of the judiciary in our system of law, to make a finding of fact, in effect, in vacuo.” Again, he said that it was no part of the judicial function “to ascertain the truth or falsity of facts and report them to Parliament." The plaintiff had argued, in part, that the tribunal had power to impose upon it a liability for costs. This is what McCarthy J addressed in the passage quoted above. Thus, the reasons given by McCarthy J form part of the reasoning of the Court. The possibility of an award of costs being made against the plaintiff was one of the arguments made for the plaintiff. (see page 569 of the report). There is no distinction in principle between an order of that kind and an order depriving a party of his costs, as has occurred here.
119. The key point made by McCarthy J was that costs might be disallowed "because of the conduct of or on behalf of that party at, during or in connection with the Inquiry,” but not by reference to the findings made "as to the subject matter of the inquiry." It is true that the learned judge spoke of "a single disaster" when expressing his view that a party should normally be represented at public cost and counsel for the respondents relied strongly on this point. I see no reason, however, to restrict the principle in that way. There is no distinction of principle, so far as costs are concerned, between an inquiry into a single disaster and one into corruption whether in the beef industry or in the planning process. A tribunal of inquiry is established to serve the public interest. It is in the public interest that every person in possession of relevant information should co-operate with the inquiry. It is beyond question that the obligation to cooperate may impose greatly on individuals and expose them to very substantial legal expense. They must incur those costs without any advance assurance of reimbursement. I think that the ordinary presumption should be in favour of reimbursement. Otherwise, the obligation to co-operate with Tribunals would impose loss without compensation on individuals.
120. Geoghegan J expressed similar sentiments by way of an obiter dictum in his High Court judgment in Haughey v Moriarty, cited above. Referring to awards of costs against individuals, he said:
“In my opinion, power to award costs under the Act of 1997 is confined to instances of non co-operation with or obstruction of the Tribunal but that of course would include the adducing of deliberately false evidence and that is why the statutory provision specifically requires regard to be had to the findings of the Tribunal as well as all other relevant matters.”
121. The next question is whether the words interpolated in parentheses by amendment in 1997 affect the principle enunciated by McCarthy J. As a pure matter of construction, there is some force in this contention. The interpolated words appear after the expression “all other relevant matters,” and may be said to qualify only that expression, leaving “the findings of the Tribunal” standing alone. This approach certainly found favour with the Law Reform Commission in its consultation paper published in 2003, where it said:
“It is critical that there can, therefore, be no room for the suggestion that the phrase “the findings of the Tribunal” should be taken to mean a finding as to whether a person has failed to co-operate with the Tribunal. Instead, this key phrase must bear its natural meaning, that is, the findings of the Tribunal as to the substantive issue.”
122. The significance of this suggested interpretation, which is also advocated by the respondents, must be grasped. It means that the findings of the Tribunal are no longer mere findings of the truth or falsity of allegations the subject matter of the inquiry made, to use the expression of Finlay C.J., in vacuo. It is instructive also to recall two judicial statements from the High Court of Australia, which had been cited with approval by Costello J in his judgment in Goodman v Hamilton at pages 561 and 562. The citations are from a decision on the functions and role of commissions of inquiry in Victoria v. Australian Building Construction Employees' and Building Labourers' Federation (1982) 152 C.L.R. 25, concerning a Royal Commission which had inquired into alleged unlawful behaviour of a trade union or its members. In responding to a challenge to these powers, Stephen J stated:
“The appointment of a commissioner to inquire into and report upon the commission of a crime creates no prerogative criminal court; his report can neither commit anyone nor involve those consequences which a curial finding of guilt entails. The only direct consequence of his reported conclusion that a particular person committed a crime is that the mind of the executive is informed of his conclusion.”
123. Brennan J spoke to similar effect at pages 152-153:
“A commission of mere inquiry and report - affecting no rights, privileges or immunities, imposing no liabilities, exposing to no legal disadvantage - cannot be (unless the circumstances are exceptional) either an authority for the assumption of judicial functions or an interference with the judicial process. Even if a commissioner be directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile of legal effect . It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as judicial . . . The absence of any legal effect in the findings of a royal commissioner appointed merely to inquire and report denies any suggestion that such a commissioner is exercising judicial power.”
124. This Court in Goodman v Hamilton dismissed the challenge to the powers of the tribunal in that case, because the Court held that the powers given to the tribunal were not an invasion of the judicial function. A tribunal, in the view of the Court, was limited to making findings of fact, in vacuo, (per Finlay C.J.). They were “sterile of legal effect” (per Brennan J cited with approval by Costello J).
125. If it be the case that the amendment to section 6(1) has the effect of investing in the Tribunal the power to refuse to award costs by reason of the substantive findings it has made, it is difficult to see how its findings could any longer be described as being devoid of legal consequence, made in vacuo or sterile. I cannot accept the submission made on behalf of the respondents that the necessary intervention of the taxing master or of processes of execution alters that fundamental fact. It is incumbent on this Court to address, only in the last resort, a question as to the constitutional validity of a statute. To that end, the Court must, so far as the words used by the legislature so permit, interpret those words so that they do not conflict with the Constitution. In the present case, that task is simplified by the availability of the judgments in Goodman v Hamilton. The link created by section 6(1) of the Act of 1979, as interpreted by the Tribunal and as upheld by Smyth J, appears to empower the Tribunal to penalise a witness before it in respect of costs by reason of its substantive findings. Clearly, this Court, when delivering judgment in that case did not contemplate any such possibility. The dictum of McCarthy J avoids conferring that power on the Tribunal. If this Court had thought otherwise, the result of Goodman v Hamilton might well have been otherwise. At the very least, the reasons given by Finlay C.J. would of necessity have had to be different.
126. The Oireachtás can be taken to have been aware in 1997 of the decision in Goodman v Hamilton. If the legislature had intended to negative the effect of the judgment of McCarthy J, it could have adopted clear wording to that effect. In fact, it has left intact the words which were interpreted by McCarthy J. I agree that if the section, in its present form, were the only matter to be interpreted, it is at least open to the meaning that the Tribunal may have regard to its substantive findings when deciding on costs. The matter is not, however, res integra. This Court has said, per McCarthy J, that a tribunal may not have regard to its substantive findings when deciding on costs. The words which he interpreted are still in this section. The additional words interpolated in 1997 do not inevitably reverse the principle enunciated by the Court in 1992. It is possible, without doing violence to language, to interpret the words in parentheses as qualifying both “the findings of the Tribunal” and “all other relevant matters.” In the light of the decision in Goodman v Hamilton and the obligation to interpret in conformity with the Constitution, I think that is the correct interpretation.
127. I am satisfied, therefore, that the Tribunal, in making a decision as to whether to award costs is not entitled to have regard to its substantive findings on the subject matter of its Terms of Reference
Conclusion
128. For these reasons, I would allow the appeal. I would make a declaration that the Tribunal was not entitled to make findings of hindering and obstructing in respect of the appellants contained in its Second and Third Interim Reports. I would also make an order, by way of certiorari quashing the decision of the Tribunal dated 9th November 2004.
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of April, 2010.
Background.
In this case the appellants, all of whom are part of what I have described below as the “Murphy interests”, seek certain declaratory reliefs and seek to quash by judicial review a decision of the Flood Tribunal of the 9th day of November, 2004, refusing them costs. They also seek, if necessary, a declaration that s.6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (hereinafter “the 1979 Act”) is unconstitutional.
The Flood Tribunal, more formally the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter “the Tribunal”) which was established as long ago as 1997 and is still continuing, is one of the latest in a series of Tribunals of Inquiry established in this country. It is established in the manner envisaged by the Tribunals of Inquiry Act 1921 as amended (“the 1921 Act”). This Act is one of the very last Acts of the old United Parliament of Great Britain and Ireland.
Though there have been Tribunals of Inquiry since the 1920s, the modern series of tribunals may be regarded as commencing with the Beef Tribunal of the early 1990s. These tribunals, as this one amply illustrates, have become immense in their duration and, consequently, in their costs. It is fair to say that both the length of the present inquiries and their cost were utterly unimaginable not only in 1921 but even in 1990 and in 1997.
I am unaware of any international comparator, even amongst States much richer than Ireland, whose public inquiries approach ours for length, complexity or expense, or who exhibit such readiness to have recourse to a tribunal. This is to be deplored from every point of view. I agree with the academic authority cited by Fennelly J. in his judgment in this case who said:“The inquiry is inquisitorial in character, and often takes place in a blaze of publicity. Very damaging allegations may be made against persons who may have little opportunity of defending themselves and against whom no legal charge is preferred”.
and:
“… an inquisitorial public inquiry is not always easily controllable, and its evils would be grave if its use were not infrequent”.
Equally, I wish urgently to recommend to those responsible for the establishment of tribunals a book “Illinois Justice” by Kenneth A. Manaster (University of Chicago Press, 2001). This is an account of an inquiry presided over by the future U.S. Supreme Court Justice John Paul Stevens into suspected bribery by banking interests of Justices of the Illinois Supreme Court. The inquiry began in mid-June 1969 and was over by the end of July 1969. Stevens announced the terminal date before he began his work. He insisted on the narrowest possible terms of reference. He brooked no extension of them. The cost of his six week inquiry was a miniscule fraction of any of our tribunals. In his foreword to Manaster’s book, Justice Stevens contrasts this speed and economy with the “Special Counsel” inquiries subsequently established in the United States. Yet none of the latter, to my knowledge, have extended to anything like as long as the present Tribunal.
Both the length and the cost of tribunals are due in part to the enormous powers which have been conferred on them. They have power to require any person or body in the State to cooperate with them, to produce enormous volumes of documentation and to make themselves available to be questioned. Confidentiality can be set aside and the privilege against self-incrimination does not apply. Sometimes the cost of doing this which the individual or company must bear are themselves enormous. It will not be reimbursed for years, if ever. The tribunal may withhold any re-imbursement at all. Furthermore, in recent times tribunals have taken to conducting a good deal of their work in private. This means that the material they have obtained will normally be known only to the tribunal and may be selectively concealed from the parties. This has proved enormously controversial in the past. See the decision of this Court in O’Callaghan v. Mahon [2006] 2 IR 32.
If the powers of the tribunals are enormous, so too are the consequences of their deliberations. We have seen people forced to leave public life, put to enormous expense and even imprisoned as a result of their interactions with the Tribunal.
In recent times too, attempts have been made to find cheaper and less cumbersome ways of inquiring into matters of public concern than that provided by the Tribunal of Inquiry. One of these has been the notion of a parliamentary committee. This, indeed, is ironic since the 1921 Act was passed against a background where the previous preferred method of inquiry had been the parliamentary inquiry. These, over a period of centuries, had transpired to be almost invariably corrupt or biased. This unhappy history is summarised in Maguire v. Ardagh [2002] 1 IR 385. This case also treats, to some extent, of the unhappy history of certain American congressional inquiries notably those carried out by the now notorious House Committee on Unamerican Activities. For a detailed treatment of the most unfortunate history of British Parliamentary inquiries see Prof. George W. Keeton “Trial by Tribunal; a study of the development and functioning of the tribunal of inquiry”, London, Museum Press (1960). In Maguire, a group of gardaí whose involvement in a chain of events in which an unfortunate man was shot dead was the subject of a parliamentary inquiry, succeeded in preventing the inquiry from taking place in a political forum. This led to the establishment of the Barr Tribunal.
Over the years, even the years since 1990, all sorts of people have taken issue with the powers which certain tribunals sought to exercise in their particular cases. Some of these have been commercial interests but at different times gardaí, journalists, a Cardinal, solicitors, members of Dáil Éireann and even the Government of Ireland itself have sought to challenge the powers which a tribunal, commission or parliamentary committee proposed to exercise in their regard. These challenges have given rise to a substantial body of case law, some of which will be referred to below.
The Flood Tribunal and the Murphys.
Of the various tribunals of the last two decades, the Flood Tribunal is by far the best known. In part this is due to its unprecedented length (with the possible exception of its contemporary, the Moriarty tribunal). and its consequent unparalleled expense. But it is also due in part to the very dramatic evidence which has been given before it and to the fact that certain prominent people have been very publicly ruined, and in some cases even imprisoned, as a result of their interaction with it.
Probably no part of the Flood Tribunal’s dealings have attracted more public attention than that featuring Mr. James Gogarty who made allegations of the most serious kind against his former employers, the appellants herein, and others. The destructive effect of these allegations on individuals, the flamboyance of Mr. Gogarty as a witness and his striking gift for phrase-making have all contributed to this. One of his phrases, indeed, may fairly be said to have entered the vocabulary of Hiberno-English.
In other words, the political and social impact of the Tribunal has been enormous and is beyond doubt. Equally, its unique capacity to damage, even to ruin, individuals is well established.
The appellants herein, who for reasons shortly to be explained I shall refer to as the “Murphy interests”, have been before this Tribunal principally or solely because Mr. Gogarty made allegations against them. Their involvement was involuntary: they were compelled to become involved in the Tribunal, to make discovery or disclosure of huge quantities of material at enormous expense to themselves and to participate in the sittings of the Tribunal for the huge span of 163 sitting days over a period of several years. After all that, the Tribunal made findings adverse to them: they were found to have been involved in the making of corrupt payments and to have “obstructed and hindered” the Tribunal.
On the basis of these findings, when they applied to recover some of the enormous costs they had been put to, they were refused both on the basis of the Tribunal’s substantive findings and its findings in relation to “obstruction and hindrance”. Furthermore, they are on notice that at a future sitting of the Tribunal it will be urged that the Tribunal, of its own motion, should make the Murphy interests liable, to a greater or lesser degree, for the costs incurred by other interests, or for the costs of the Tribunal itself. This is plainly capable of amounting to a truly enormous financial imposition.
The Murphy interests make a number of complaints about this state of affairs. They say that the Tribunal had simply no power to make findings of “obstruction and hindrance” in relation to them. Secondly, they say that even if the Tribunal had such power in principle, it had no power to make these findings in the manner that it did, which they say was grossly unfair and breached their entitlement to fair procedures. They also say that the process whereby these findings were arrived at was grossly defective and unsustainable in law or in elementary logic. One of the allegations of breaches of fair procedures they make is that they were quite deliberately deprived of evidence which the Tribunal had in its possession and which might have enabled them (in the somewhat complex way described below) to avoid the findings of obstruction and hindrance. They say that they were deliberately deprived of material which might have been absolutely explosive in its effect on the credibility of Mr. Gogarty.
The Tribunal says it was fully entitled to come to the conclusions that it did and to refuse costs to the Murphy interests. They take a number of points which are more or less technical in nature (in relation to delay, relevance etc.) but more generally they claim that they were fully entitled to come to the conclusions that they did and indeed that they had to do so in order to exercise their statutory costs jurisdiction. They admit that certain material was withheld from the appellants and further admit that it should not have been withheld but do not admit that the appellants suffered any disadvantage in that regard.
I now proceed to consider, in all necessary detail, the nature of this challenge and the answer made to it.
Costs and the Legitimacy of Tribunals.
As noted above, certain persons have in the past been heard to complain, and to take their complaint to the courts, that the enormous prerogatives of a Tribunal of Inquiry is capable of destroying them, financially and in terms of reputation, much more obviously than even a criminal court could do, but that the tribunal’s procedures afford them few or none of the protections which would be available to them in the court forum. This contention has always been rejected. It was rejected in strong terms by this Court in Goodman v. Mr. Justice Hamilton [1992] 2 IR 542. This decision is now the foundation, in Irish law, of the constitutionality of the Tribunal of Inquiry, as known in our law. But since that judgment was given, the nature of tribunals in themselves has been altered, by legislation, by parliamentary resolution establishing or continuing certain tribunals including this one and by the exponential, and wholly unpredicted, expansion in the length of Tribunals of Inquiry and in the costs of them. It would be wholly unrealistic not to acknowledge that these costs can only be described as truly enormous.
The appellants here have been refused their own costs of (involuntarily) participating in the tribunal and of the vast discovery they made, (even though they were legally required to undertake this) and are on risk of having enormous costs awarded against them. It was made clear in the course of this appeal that the State itself has “indirectly” applied for such an award of costs to be made. Whether a tribunal empowered to make orders of such enormous financial consequence can nonetheless be described as being (as, on the authorities, tribunals must be) “incapable of imposing liabilities” “sterile of legal effect” on the basis that it merely expresses an opinion, and “this opinion is devoid of legal consequences”, is the most general of the issues raised by the appellant in these proceedings.
Other issues turn more narrowly on aspects of the remit, history and conduct of this particular tribunal. The most notable of these is the admitted failure of the Tribunal to disclose to the Murphy interests certain material, which might fairly be described as explosive, relating to the statements made by or attributed to their principal accuser. But it is important to note that the appellants have chosen to challenge, not the substantive findings which the Tribunal made adverse to them, but only the finding in relation to costs.
Findings gravely adverse to the Murphy interests were made by the Tribunal in its second interim report (issued on the 26th September, 2003) and its third interim report issued some fifteen months later on the 21st January, 2004. The appellants’ proceedings were instituted on the 20th April, 2004.
I use the phrase “the Murphy interests” because of what is said in chapter 17 at p. 141, para. 17-04 of the second interim report of the Tribunal under the heading “Co-operation with the Tribunal”:-“The findings made against Mr. Joseph Murphy Snr and Mr. Joseph Murphy Jnr apply pari passu to the companies within the Murphy Group to whom legal representation was granted including Joseph Murphy Structural Engineers Limited, Lajos Holdings Limited. The Grafton Construction Company Limited, Reliable Construction (Dublin) Limited, Barrett Developments Limited (in Liquidation), Turvey Estates Limited, Finglas Industrial Developments Limited (in Liquidation), Helmdale Limited (in Liquidation), Gaiety Stage Production Limited, Gaiety Theatre (Dublin) Limited, Finglas Industrial Estates Limited and Wexburn Limited”.
Mr. Roger Copsley and Mr. Frank Reynolds appear also to have been identified with the appellants and their companies, and are included in the above phrase as used by me. The appellants’ complaints centered principally on the activities of the Tribunal concerning that aspect of its inquiries known as the “Gogarty Module”. This related to allegations made by a Mr. Gogarty, formerly an executive with the Murphy Group, and in particular to an allegation that the appellants had made a payment in cash to the former Government Minister, Mr. Ray Burke. It was specifically alleged that Mr. Gogarty and Mr. Joseph Murphy Junior had been present when this payment was made at Mr. Burke’s home in Swords, Co. Dublin, in 1989.
Issues
Two key issues were raised on behalf of the appellants:
(1) whether the Tribunal was entitled to take into account its substantive findings in adjudicating on the issue of costs and
(2) whether the Tribunal was entitled to make findings of “obstruction and hindrance” against the appellants either (a) at all or (b) in the manner in which it did.
The appellants’ proceedings are directed exclusively, on (1) the costs order already made, refusing the appellants their costs, and (2) a further cost issue yet to be determined i.e. whether the appellants can be made to pay the costs of the Tribunal or of any other party. As will be seen, certain of the points urged by the appellants would, if upheld, appear to have implications for the substantive findings of the Tribunal as well as for its power to grant or refuse costs orders. However, the present proceedings focus exclusively on the costs issues. This appears to be, firstly, because of the enormous expense to which the appellants have already been put and the risk of being forced to pay some or all of the equally enormous costs of other parties. Secondly, on the basis of authorities to be discussed below, the appellants say that because costs orders represent a positive refusal of a benefit or entitlement or imposition of a liability, such orders, are outside the class of findings which a Tribunal of Inquiry may lawfully make, since such findings of a tribunal of inquiry are required to be “in vacuo” and to be “legally sterile”. The point was also made by counsel that the substantive findings against the appellants appear to turn on issues of credibility which it is difficult to ask a court to review, drawbacks less obviously present in an attack solely on the Costs order.
The Findings and how they were arrived at.
Leading counsel for the Murphy interests, Mr. Michael Cush S.C., referred to chapter 11 of the second interim report entitled “Gogarty Module”. This is subtitled: “Payment of Money to Mr. Ray Burke T.D. at his Home at Briargate, Swords, Co. Dublin in June 1989 at a Meeting Attended by Mr. James Gogarty”. This was very largely an issue of pure credibility and the Tribunal concluded at p. 77, para. 11 - 23 that:-“… that the conflicts which are apparent from consideration of the evidence of the parties, could not be explained on the basis that they were innocent failures of recollection, mistakes, or misinterpretation of the true facts. The Tribunal concluded that the divergences in the accounts given by the parties could only be explained on the basis that some party, or parties, had deliberately set out to mislead the Tribunal as to the true circumstances leading to the meeting with Mr. Burke and the payment of monies to him. In broad terms the issue arising was whether the account given by Mr. Gogarty was true or whether the accounts given by all of the other persons present in Mr. Burke’s house at the time of the meeting were true. Certain facts were common case namely (1) a meeting did in fact take place at the home of Mr. Burke in June, 1989, (2) Mr. Gogarty, Mr. Michael Bailey and Mr. Burke were present, (3) a substantial sum of money, amounting to not less than £30,000, was paid to Mr. Burke at this meeting partly in cash and partly by cheque and the majority of which was in cash. The essential disputes between the parties arising from the evidence in relation to the JMSE funded payment were (1) whether this payment was made as a political donation, or as a bribe (2) whether this payment was made with the knowledge of the Murphy interests or not.”
From the appellants’ point of view, the question of whether the payment was a political donation or a bribe was irrelevant and hardly arose at all. Their case was that they knew nothing at all about it. This, in turn, depended on the credibility of the witnesses on the issue of whether or not Mr. Joseph Murphy Junior was at the meeting. He was adamant that he was not. Only Mr. Gogarty said that he was. It must always be borne in mind that the meeting at which he was allegedly present was said to have happened in 1989; the evidence in relation to it was given about a decade later.
According to the Tribunal:“Mr. Gogarty’s evidence was that Mr. Murphy Jnr. had attended three meetings in Dublin during the period between the end of May 1989 and the 15th June 1989. The first of these meetings were said to have been a meeting “a couple of days” before the 8th June 1989 which took place at the premises of JMSE at Shanowen Road, Santry, and which was attended by Mr. Joseph Murphy Jnr., Mr. Frank Reynolds and Mr. James Gogarty, on behalf of the Murphy interests, and by Mr. Michael Bailey. Mr. Gogarty said that it was at this meeting that Mr. Bailey spoke of his claimed ability to procure planning permission through the assistance of Mr. Burke, and certain named councillors and officials.
The second meeting was said to have taken place on the afternoon of the 8th June 1989, and was said to have been attended by Mr. Joseph Murphy Jnr., Mr. Frank Reynolds and Mr. James Gogarty, at which the assembled monies, intended to be paid to Mr. Burke, were counted out by Mr. Gogarty in anticipation of a visit to Mr. Burke’s home on the same date, a visit which was unexpectedly called off.
The third meeting some days after the 8th June 1989, was the meeting said to have taken place at Mr. Burke’s home which was said to have been attended by Mr. Michael Bailey, Mr. Joseph Murphy Jnr and Mr. James Gogarty, at which it is said that two envelopes were passed to Mr. Burke which were believed to contain £40,000 each, the first envelope being passed over by Mr. Joseph Murphy Jnr. and the second by Mr. Michael Bailey.”.
These findings occur at p.129, paras 14-92 to 14-94 of the second interim report. The issue before the Tribunal, in one sense, could not have been simpler. As counsel for the appellants put it “the issue is whether we were there at all”.
It is, of course, very difficult indeed to establish anyone’s precise whereabouts on any given day a decade ago. And even if one does, there is always a risk that one’s accusers will react by saying that their allegation really relates to a time less specific, “on or about” a particular day or something similar. However, Mr. Joseph Murphy Junior focussed on the meeting of the 8th June, 1989 because he said he was in London on that day and was able to call witnesses who had telephoned him on the morning of that day in London and also that night in London. In relation to an earlier date, he could show he had been in Waterford for part of the day.
The appellants complained that there was never a reasoned or evidence-based finding that Mr. Joseph Murphy Junior was at either meeting. Instead, there were findings, to be quoted below, that he “could have” been there which then morphed, without further evidence, explanation or justification into a finding that he was there. At p.130, para. 14 - 99 of the second interim report, it was held that “…notwithstanding the alibi evidence offered in relation to Mr. Murphy Jnr’s meetings with friends in Waterford, a meeting could have taken place with Mr. Bailey on either the 31st May or 1st June and still have allowed Mr. Murphy Jnr. to attend his meeting in Waterford later on the 1st June”. (Emphasis added)
In the following para. 14-100, the Tribunal expressed itself as follows:“The Tribunal is satisfied that Mr. Murphy Jnr. could have attended a meeting in Dublin on the 8th June 1989 notwithstanding the evidence that he had received telephone calls in London both that morning and that night. A meeting could have taken place at JMSE’s premises on the afternoon of the 8th June provided Mr. Murphy Jnr. had flown from London to Dublin and returned on the same day.”
(Emphasis added)
At p. 132, para. 14 -117 the Tribunal concludes “that the alibi evidence does not prove that Mr. Joseph Murphy Jnr. could not have attended at least three meetings in Dublin between the 31st May and the 15th June 1989”. (Emphasis added)
This, say counsel for the appellants, amounts to a reversal of the onus of proof. It is certainly a striking double negative, not apparently a sound platform for the next mental leap in the findings.
Thus, in considering the allegation made by Mr. Gogarty in which he spoke of a series of meetings in or about the first half of June, 1989, and such evidence as Mr. Murphy Jnr. was able to assemble in relation to his movements at that time, the Tribunal first concluded that Mr. Murphy Jnr. “could have” attended those meetings or certain of them and secondly, in the passage as quoted above, that what the Tribunal called “the alibi” did not prove that he could not have attended them.
However, by the time it came to set out its findings at p.139, (chapter 16 “Summary/Conclusions”) the Tribunal said, at para. 16 - 17 that “[t]the parties present at the meeting [where the money was paid] were Mr. Burke, Mr. Michael Bailey, Mr. Joseph Murphy Jnr. and Mr. James Gogarty”. (Emphasis added). At this point, “could have” has been first transposed into “can’t prove the contrary” and then to “was”, an unqualified positive finding of fact. The seamless (to use Mr. Cush’s word), silent and unreasoned transition from bare possibility to an unqualified statement of fact seems possible only by a virtue of a reversal of the onus of proof. No explanation whatever is offered of it. This is unsatisfactory in itself. The development in the findings from “could have” to “can’t prove the contrary” to “did” is an unreasonable one. It is, in legal terms, irrational.
Mr. Cush alleged, and it was not denied, that the Tribunal moved from “could have attended the meeting” to “did attend the meeting” without any intermediate stage, argument, evidence or linkage. This process was, said Mr. Cush, entirely unargued and a finding that Mr. Murphy Junior attended the meeting seemed to follow seamlessly, in the Tribunal’s mind, from an initial finding merely that he “could have” attended the meeting. Furthermore, the second interim report gives no indication as to why or how the appellants’ account was rejected.
Consequences of the foregoing.
Mr. Cush’s primary emphasis, however, was not on the findings summarised above in themselves, nor even on the question of whether the Tribunal’s process of reasoning, insofar as it appears from the second interim report, is capable of logically subtending the findings made. Instead, Mr. Cush was concerned to illustrate the effect of the foregoing, not on the substantive findings of the Tribunal but on the findings it made as to whether the principal representatives of the Murphy interests had, or had not, “obstructed or hindered” the Tribunal and what, precisely, their attitude to it had been. He then proceeded to follow the findings on these latter questions in turn through to the Tribunal’s decision on the costs issue it has already decided, by way of supporting his attack on that decision.
“Obstructed and hindered”
In the case of Mr. Joseph Murphy Senior and Mr. Joseph Murphy Junior, the Tribunal found at pp. 144 to 145, paras. 17 - 15 and 17 - 16 of its second interim report that each of them “obstructed and hindered the Tribunal”. In the case of Mr. Joseph Murphy Junior, who was most directly involved, as the Tribunal found, in the “Gogarty Module”, this hindering and obstruction was said to consist of:-
(a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at the home of Mr. Burke in June 1989 at which he handed to Mr. Burke a sum of not less than £30,000.
(b) Failing to give a truthful account of his dealings with Mr. Michael Bailey with regard to the participation proposal in which it was envisaged that Mr. Michael Bailey would receive 50% of the value of the Murphys’ North Dublin lands in return for procuring planning permission and building bye law approval in respect thereof.
(c) Giving a false account of the involvement of Mr. James Gogarty in the sale of the Murphy lands and the role played by him in connection with the payment of JMSE monies to Mr. Burke.
(d) Giving a false account of his dealings with Mr. Michael Bailey subsequent to the publication of the Sunday Business Post articles.
(e) Falsely constructing an alibi which was untrue.
It will be apparent that matters set out at (a) and (e) above relate wholly to the “Gogarty Module” and the matters set out at (c) relate at least partially and probably wholly to it. The other paragraphs related to connected transactions. It will also be observed that what the Tribunal calls an “alibi” is what they earlier described as “alibi evidence” which was evidence that Mr. Murphy Junior was in London in the morning and evening of the day at which one of the controversial meetings, that of the 8th June 1989 took place and in Waterford on another date. It will be remembered that the Tribunal had not previously found that this alibi was actually false or untrue. It had simply been found that it did not exclude the possibility of Mr. Murphy Junior’s attendance at the relevant meeting. This, in fact, is the same as saying that it was not an “alibi” at all. It is clear that, though the “alibi” had not been found to be untrue in the earlier findings of the Tribunal, it has now in some way been found to be untrue without further argumentation or justification. This conclusion is baldly stated in chapter 17 of the second interim report. Again, this process evidences a lack of reasoning or rationality.
The Third Interim Report.
In the Tribunal’s third interim report further findings adverse to the Murphy interests were made by the Tribunal and there was, additionally, further findings of hindrance and obstruction against Mr. Joseph Murphy Junior. These latter are to be found in chapter 8 at p.20 of the Third Interim Report. The focus of the third interim report was primarily on payments allegedly made to Mr. George Redmond. It is fair to say that most of the argument on the hearing of this appeal and almost all of the factual references with which it was supported, related to the second interim report. But the two reports are inexplicably connected in terms of personnel, structure and otherwise: the contrary was not submitted. Mr. Cush advanced many of the same criticisms in relation to unsupported mental leaps leading to the findings of hindrance and obstruction as has been summarised above in relation to the second interim report.
Legal significance of the term “obstructed and hindered”.
At p. 141, para. 17 - 03 of its second interim report, the Tribunal had this to say:-“Any person, duly summoned to do so, who gives evidence to the Tribunal which is material to its inquiry, which that person wilfully knows to be false or does not believe to be true or who by act or omission obstructs or hinders a Tribunal in the performance of its functions, commits a criminal offence.” (Emphasis added)
This is, in fact, a paraphrase of a statutory provision, discussed below. The Tribunal’s words are quoted here so as to demonstrate that the substance and meaning of the statutory provision was present in the Tribunal’s mind when it made the findings of obstruction and hindrance, summarised above.
Moreover, in the preface to the second interim report, the Tribunal said:“All citizens have a duty to co-operate and assist a Tribunal and to tell the truth when summoned to appear at a public hearing. It is with considerable regret that I have concluded that I must report, as one of my findings, that certain parties who appeared before me chose not to co-operate with the Tribunal in its task and further, having been duly sworn did not tell the truth.
The extent of which their actions may have involved them in breaches of the criminal law is a matter upon which the Director of Public Prosecutions has absolute and exclusive jurisdiction. I have decided to forward a copy of my Report to him to take such steps, and to do with it, what he, in his absolute discretion, considers appropriate.”
Again, I quote this passage principally as evidencing the state of mind of the Tribunal. However, it is necessary to point out, as will in any event be obvious, that the question of whether or to what extent any person involved in the Tribunal may have committed a breach of the criminal law is a matter, not for the Director of Public Prosecutions, but exclusively for the courts if and when the Director of Public Prosecutions or any other competent prosecutor initiates a prosecution.
The statutory provision referred to above is s.3 of the 1979 Act. Insofar as relevant this provides as follows:
“(3) The Principal Act is hereby amended by the substitution of the following subsections for subsection (2) of section 1:(2) If a person -
(a) -
(b) -
(c) -
(d) by act or omission, obstructs or hinders the tribunal in the performance of its functions…
(e) -
(f) -
the person shall be guilty of an offence.
(2A)(a)A person guilty of an offence under this section shall be liable on conviction on indictment to a fine not exceeding £10,000 or at the discretion of the court to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.”
When this statutory citation and the extracts from the second interim report quoted above are considered in light of the findings of the Tribunal in relation to the appellants it will be clear that the finding that: “Mr. Joseph Murphy Junior obstructed and hindered the Tribunal”, is a finding that Mr. Joseph Murphy Junior committed a criminal offence. In light of the fact that the first way in which the Tribunal found that he obstructed and hindered the Tribunal was by “failing to give a truthful account” of a particular matter and the fifth way was by “falsely constructing an alibi which was untrue” it will be clear that the findings of the Tribunal amounted to a finding, not only of the actus reus of a criminal offence but also of the mens rea of the offence, said to have been committed by a named person. It is also a finding based entirely on the substantive findings and is indeed presented in substance as a corollary of them. There is no basis for the “obstructed and hindered” finding other than the substantive finding. This conclusion is neither logically nor legally valid. Merely because one witness’s evidence is preferred to that of another does not mean, or imply, that the other has committed a criminal offence, whether of obstruction or hindrance or otherwise. This proposition was not defended on this Appeal.
Whether a finding of this sort is one which it is proper for any Tribunal of Inquiry to make, or for this Tribunal to make in the circumstances in which it did, will be discussed below.
It is clear from the introductory portion of chapter 17 of the second interim report (at p. 141, para. 17 - 04) that, in the Tribunal’s mind, firstly, there existed an alternative option existed of making a finding of non-cooperation in lieu of a finding of hindrance and obstruction, and secondly that a finding, even of failure to co-operate “can have serious consequences both as regards costs, and otherwise”, as the Tribunal put it.
Non-cooperation, unlike obstruction or hindrance, is not a criminal offence. In the same module in which the finding of obstruction and hindrance were made against Mr. Murphy, three other persons were found not to have co-operated, but no more.
It is to the general topic of costs which I now turn, prior to considering the propriety of the findings summarised above in the circumstances in which they are made.
Costs.
The Murphy interests perforce, participated in the workings of the Tribunal for a total of 163 hearing days. They were represented by solicitors and counsel and engaged in regular communication with the Tribunal and, perforce, provided the Tribunal with very significant and exhaustive discovery. It is quite clear, and indeed obvious, that this was a remarkably expensive process which was a consequence of the decision of Dáil Éireann to establish the Tribunal, with the powers contained in the 1921 Act as amended.
The Ruling on costs.
The Ruling on the appellants’ application for costs was delivered on the 9th November, 2004. In the form in which the Tribunal delivered the ruling it was described as the “Ruling in relation to application of Joseph Murphy, Structural Engineers (JSME). Its associated Companies, Directors, Officers and Auditor”. The ruling set out the findings in relation to the above-mentioned persons contained in the second interim report and likewise in the third interim report. The new Chairman of the Tribunal then went on to say at pp. 6 to 7:-“The issue I have to consider is whether, having regard to the entire of the relationship between the Applicants and the Tribunal, a case can reasonably be made on behalf of the Applicants that the incidences of cooperation on the Applicants’ part were such as would enable me to, for good reason, exclude or separate them from the very serious adverse findings relating to cooperation that were found by the Tribunal in both the Second and Third Interim Reports…
The Applicants were between them found to have knowingly given false evidence and in the case of the late Mr. Joseph Murphy Senior, Mr. Joseph Murphy Junior, Mr. Frank Reynolds and Mr. Roger Copsey to have colluded with each other to mislead the Tribunal. I must accept these findings and I have to assume they were properly and fairly made.
Taken as a whole the adverse findings of obstructing and hindering the Tribunal made against the Applicants were so serious, so extensive and so far reaching as to clearly lead any reasonable person considering them to the conclusion that the individuals concerned, particularly those I have named in the preceding paragraph, were intent from the outset in ensuring that the Tribunal would not find the truth…
To put it more simply, the conduct of the Applicants in their dealings with the Tribunal was unlawful and disreputable, and amounts to a fundamental disregard for the very purpose of the Tribunal and their legal duty to cooperate with it.
In spite of the serious findings of corruption on the part of some of the Applicants, I would have considered awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am firmly of the view that there should be a strong incentive for a party to cooperate with the Tribunal and that any party who fully cooperates with the Tribunal by giving a truthful account of their knowledge of the events under inquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse findings on substantive issues such as corruption.
In all the circumstances (sic) therefore I do not believe it would be appropriate to award any costs to the Applicants and I therefore refuse their application.” (Emphasis added)
Some of the language in this quotation reflects the fact that the findings referred to were those of the former Sole Member, Mr. Justice Flood, while the costs decision was that of the Chairman of the three judge tribunal who succeeded him.Legality of above findings and decisions of the Tribunal.
Article 38.1 of the Constitution provides as follows:“No person shall be tried on any criminal charge save in due course of law.”
As we have seen above, Mr. Joseph Murphy Junior and others, have been found and declared by the Tribunal to have wilfully obstructed and hindered it in the performance of its functions. This, by reason of the amendment to the 1921 Act which is quoted above, is a finding of a criminal offence. But it has not been, and could not be, contended that this finding was made “in due course of law”, as that phrase is used in Article 38.1 of the Constitution. This is not disputed. But, it is said, that Article 38.1 applies only to trials and that the proceedings of the Tribunal do not constitute a trial or trials, and result only in the expression of opinions, which have no legal consequences.
Further, Article 34.1 of the Constitution provides that:“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as maybe prescribed by law, shall be administered in public.”
The antiquity and importance of the concepts underlying Article 38.1 of the Constitution in particular are of central importance. In Conroy v. The Attorney General IR 411, Kenny J. said at p. 415 that:“I think that s.1 of the Article is an echo of a clause in the Great Charter of Ireland granted in 1216… [The] phrase “due process of law” was adopted by those who drafted the Fifth Amendment to the Constitution of the United States of America which prevents any person being deprived of life liberty or property without due process of law. I think that s.1 of the Article gives a constitutional right to every person to be tried in accordance with the law and in accordance with due course or due process of law.”
The Great Charter of Ireland is Magna Carta as transmitted to Ireland in the remote year 1216. In one of the cases most discussed on the hearing of this appeal, Goodman International v. Hamilton [1992] 2 IR 542, McCarthy J. expressed similar sentiments at p.609. He said:“In Ireland, having regard to the express provisions of Article 38, of which s.1 is an echo of the phrase “due process of law” in the Fifth Amendment to the Constitution of the United States of America, it may be more relevant to look to decisions of the United State Supreme Court touching on the scope and range of parliamentary investigation or inquiries. The prescription of the Fifth Amendment, so far as relevant, is not to be deprived of life, liberty or property without due process of law; this may have a wider scope than the prescription of Article 38 s.1: “No person shall be tried on any criminal charge save in due course of law”. The rights identified at common law, such that no man be put to answer without presentment before justices, are in my judgment subsumed by the constitutional guarantees of fundamental rights. The prescripts of natural justice - to hear the other side and not to be a judge in one’s own cause, have, themselves, been subsumed by the constitutional right to fair procedures. The right to be heard incorporates the right to be put to answer, to be told of the allegation, and to confront the witnesses. History may well be a guide, but only a guide, to constitutional construction. Rights are to be found within the constitutional framework, some created, others identified and guaranteed.” (Emphasis added)
In this present case the Tribunal unambiguously found that certain persons had done things which, in an identical form of words, the legislature has decreed should constitute a criminal offence. These things were not even amongst the “definite matters of urgent public importance” which the Tribunal was mandated to inquire into and report upon. Furthermore, on the basis of that finding, or partly on that basis, the Tribunal has deprived the Murphy interests of their costs amounting (it is quite safe to assert) to a truly enormous amount of money by reason of the almost incredibly protracted nature of the Tribunal’s hearings, and the vast scope of the discovery required of them.
These facts illustrate, more clearly than any other of the very numerous cases to do with Tribunals of Inquiry which have come before the Court, the scope for conflict between a tribunal and constitutional rights especially in relation to the trial of offences. The learned editors of Kelly on The Irish Constitution 4th Ed., (Dublin 2003) at p. 1040 state that:“Article 38.1 is plainly referable to the trial of offences, but the novel question of whether the Oireachtas is free to establish parallel procedures providing for the investigation of alleged criminal (or potentially criminal) conduct was examined by the Supreme Court in Goodman International v. Hamilton, (No 1) [cited above].” (Emphasis added)
The judgments in Goodman turn fundamentally on the distinction between the nature of a trial as opposed to that of an inquiry for the purpose merely of reporting an opinion on facts. At a trial, according to Finlay C.J. at p.588 “… the sole purpose and object of the verdict, be it one of acquittal or of conviction, is to form the basis for either a discharge of the accused from the jeopardy in which he stood, in the case of an acquittal, or for his punishment for the crime which he has committed, in the case of a conviction.”
By contrast, according to the same learned judge, “[t]he Tribunal has no jurisdiction or authority of any description to impose a penalty or punishment on any person. Its finding… can form no basis for either the conviction or acquittal of the party concerned on a criminal charge… nor can it form any basis for the punishment by any other authority of that person. It is a simple fact-finding-operation, reporting to the Legislature.” (Emphasis added)
At p. 590, Finlay C.J. describes the activity of the tribunal as “…to make a finding of fact, in effect, in vacuo and to report it to the Legislature.”
The High Court judgment in Goodman was that of Costello J. (as he then was). He based himself to some degree on the judgment of Finlay C.J. in Kennedy v. Herne [1988] IR 481 at p.488 to 489 as follows:“A characteristic of the exercise of a judicial function is that by its determination within jurisdiction the tribunal, court or individual concerned imposes liabilities or affects rights”.
He goes on to consider the Tribunal in question in the Goodman litigation, the Beef Tribunal, and said at p.556 to 557 that “in inquiring into these allegations and in reporting its opinion on them the Tribunal is not imposing any liabilities or affecting any rights… It may come to the conclusion that some or all the allegations of wrongdoing are true, but this opinion is devoid of legal consequences.” (Emphasis added)
Costello J. then went on to discuss a number of New Zealand, Australian and American cases to which he had been referred and in particular the well known Australian case of Victoria v. Australian Building Construction Employees Federation (1982) 152 C.L.R. 25. He quoted in particular from the judgment of Brennan J. at pp. 152 to 153 which contains a phrase which has subsequently been used throughout the common law world in relation to the findings of Tribunals or Commissions of Inquiry. The quotation is to be found at p.562 of the judgment of Costello J. in Goodman:“What the common law and the early statutes forbade to the executive was the assumption of any judicial function or interference with the judicial process. A commission of mere inquiry and report - affecting no rights privileges or immunities, imposing no liabilities, exposing to no legal disadvantage - cannot be (unless the circumstances are exceptional) either an authority for the assumption of judicial function or an interference with the judicial process. Even if a commissioner be directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile of legal effect. It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as judicial… The absence of any legal effect in the findings of a royal commissioner appointed merely to enquire and report denies any suggestion that such a commissioner is exercising judicial power.”
(Emphasis added)
The phrase referred to above is “sterile of legal effect” or “legally sterile” as it is sometime rendered, used as a description of the quality of a tribunal which prevents it from being an unconstitutional usurpation of judicial functions and powers. The significance of the Goodman decision for this branch of the law can hardly be overstated. Nor, if I may say so, could the case against the compatibility of the system of Tribunals of Inquiry, within our constitutional dispensation, be more convincingly put than in the submission of Mr. Seamus McKenna S.C. and Donal O’Donnell for Laurence Goodman, set out at pp. 572 to 573. Mr. McKenna said:“The issue of the right of the Tribunal to investigate the truth or otherwise of allegations of criminal conduct or illegal activities, or fraud, is the core and fundamental constitutional question in this case.”
He went on to contend, in a passage of remarkable force, that if the powers of the Tribunal of Inquiry were upheld that it would, therefore, be open to the members of the legislature or some of them to constitute themselves as a parallel court to investigate allegations, with the sole reservation that “[w]e cannot punish you by way of imprisonment but we may order you to pay what might in some circumstances be an enormous penalty by way of costs in relation to one or other of the parties before us.”
It was this forceful proposition, it seems to me, that led to the dictum of McCarthy J. on costs, discussed below. This fact, also, seems strongly to indicate that the dictum of McCarthy J. is not, as the Respondents at one point submitted, merely obiter.
Nevertheless, the courts upheld the constitutionality of the Tribunal of Inquiry known as the Beef Tribunal on the basis that what it did was not the trial of an offence. It is worth recapitulating some of the characteristics attributed by the judgments in this Court and the High Court to the tribunal findings, which prevented their being the trial of an offence. The phrases now to be considered were, accordingly, the Court’s expression of the aspects of the legal nature of a Tribunal of Inquiry which prevents it offending the Constitution.
In the words of Costello J., or in the words of the judicial authorities cited with approval by him, the Tribunal of Inquiry is “not imposing any liabilities or affecting any rights” (at p.557); its conclusions have merely the status of opinion and “this opinion is devoid of legal consequences” (at p.557), its findings are “sterile of legal effect” (562 and its purpose is “merely” to inquire and report (at p.562). A Tribunal of Inquiry is “a simple fact-finding-operation” according to Finlay C.J. (at p.588). The Tribunal has no power to inflict a penalty and its determinations cannot “form any basis for the punishment by any other authority of that person” at p.588. Its function is to “make a finding of fact, in effect, in vacuo, and to report it to the Legislature.” (at p.590)
This judgment will shortly address the question of whether the present Tribunal of Inquiry, in acting as it has done, and as is summarised earlier in this judgment, exhibits those characteristics of a Tribunal of Inquiry which alone protect it from constitutional vulnerability. First, however, it is appropriate to consider some further aspects of Goodman, and certain dicta from the judgment of McCarthy J. on the specific topic of costs.
Goodman is a decision of this Court, a case of high authority which we have not been asked to disapprove and which I propose to follow. It is true that Mr. Michael Collins S.C. who appeared for the Tribunal on this appeal said he would ask the Court “if necessary” to depart from Goodman. I take it however, that this is a reference solely to the dictum of McCarthy J. to be discussed below and not to the principal thrust of Goodman, which has been for almost twenty years every Tribunal of Inquiry’s title to constitutionality. No argument was directed against any finding in Goodman except the dictum of McCarthy J. Nevertheless, it must be acknowledged that, in distinguishing the findings of a tribunal from the verdict of a court, the judges were obliged to make some rather subtle distinctions which one may take leave to doubt would count for much in the minds of ordinary people. I have to some extent explored this topic in my judgment in Maguire v. Ardagh [2002] 1 IR 385 at 669.
Hederman J., in his judgment in Goodman cited extensively from the dissenting judgment of Murphy J. in the Australian case cited above. The citation can be found at pp. 599 to 600 of the judgment and I propose to quote simply the first three sentences:“The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a person guilty of ordinary crimes, is in itself an undermining of the separation of powers. It is a fine point to answer that the finding is not binding and does not of itself make the person liable to punitive consequences. It is by fine points such as this that human freedom is whittled away.”
I believe that points such as these and the others made by Murphy J. and quoted by Hederman J. must always be borne in mind in this area of the law. I would also observe that the considerations there expressed in my opinion apply whether (in the memorable phrase of Mr. McKenna S.C. at p. 573)the “Tribunal of inquiry [is] presided over by a Solomon or a simpleton.” The confining of a Tribunal of Inquiry within its proper bounds in no way reflects on the individuals who compose it.
Costs Provisions.
Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 provided as follows, at the time when Goodman was decided:
6(1) Where a tribunal, or if the tribunal consists of more than one member, the chairman of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do, the tribunal or the chairman, as the case may be, may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.
In his judgment in Goodman, McCarthy J. briefly expressed his agreement that (at p.604) that “[t]here is no usurpation of the role of the judiciary in the administration of justice” for the reasons given by the other judges and summarised above. He devoted the bulk of his judgment to the question of fair procedures before a tribunal, saying at p.605:“No challenge was made to the constitutional validity of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, but it must be construed as subject to the constitutional framework and, in particular, involving fair procedures.”
The learned judge then went on to expound the requirements of fair procedures under a number of headings of which the third related to s.6 of the 1979 Act, the source of the jurisdiction to award costs. McCarthy J. said at p. 605:“The liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of the inquiry. When the inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be represented at the inquiry should have their costs paid out of public funds. The whole or part of those costs may be disallowed by the Tribunal because of the conduct of or on behalf of that party at, during or in connection with the inquiry. The expression “the findings of the tribunal” should be read as the findings as to the conduct of the parties at the tribunal. In all other cases the allowance of costs at public expense lies within the discretion of the Tribunal or, where appropriate, its chairman.”
The Tribunal in question here is, of course, not concerned to inquire into a single disaster (as for example the Whiddy or Stardust Tribunals were). It seems to me that the principle behind the passage just cited in the judgment of McCarthy J. is this: a Tribunal of Inquiry will be convened only when some thing or things have happened which have given rise to grave public disquiet. Pursuant to the 1921 Act such a tribunal may be convened only in relation to “a definite matter… of urgent public importance”, and only where it is “expedient” in the public interest that a tribunal be established. Thus, a tribunal to which the 1921 Act applies may be established only in the public interest and in acute circumstances which, for the satisfaction of the public, require elucidation. Historically, tribunals have often been established in the aftermath of a single disaster occurring due to negligence, act of God or in unknown circumstances. But, equally, many tribunals have been established in relation to matters which derived their significance from commercial, financial or political concerns, and which also require elucidation in the public interest. The former class of inquiry may easily involve persons who are completely innocent of any involvement in the cause of the disaster but whose evidence is still required to be taken. See the report of the Whiddy Tribunal. It is reasonable that, since their presence and their evidence is required in the public interest, the public purse should defray the costs of and incidental to such evidence. In the latter sort of inquiry the people whose attendance and evidence is required are more likely to have some prior involvement, innocent or otherwise, in the chain of events leading to the establishment of the tribunal. Nevertheless the supreme importance, in the public interest, of having all their evidence available means that they cannot be penalised in costs for their past behaviour relating to the substantive subject matter of the tribunal’s inquiries.
The significance of the circumstances in which costs may be awarded is of course very great in practice. Due to the very prolonged nature of the Tribunal sittings, it has been openly speculated that the total costs of the Tribunal and all other parties will run into tens of millions of euros. To be made to pay even a small fraction of such costs is plainly a very significant matter, perhaps financially ruinous for an individual or a company. It is very difficult to regard a conclusion of a tribunal which may determine, or influence, so significant a liability as being one which “does not impose liabilities or affect rights” or one which merely has the status of opinion and “this opinion is devoid of legal consequences” or “sterile of legal effect” or as a finding made “in effect, in vacuo”. Still less is it “devoid of legal consequences”.
Yet it was only by so characterising the conclusions of a Tribunal that its constitutionality was preserved in Goodman. It appears to me that McCarthy J. was conscious of the very acute difficulty for the analysis presented in the judgments of Costello J. and Finlay C.J. (and with which he agreed) of the costs jurisdiction (which emphatically imposes liabilities) that he wrote as he did in the passage cited above. I may say that the difficulty is not rendered less acute by the terms of the amending Tribunals of Inquiry (Evidence) (Amendment) Act 1997, nor of the Terms of Reference of this Tribunal, which will be discussed below.
The Tribunal, in its submissions, has fully recognised the great significance of the dictum of McCarthy J. cited above. It has sought to address it in three ways: firstly that it is simply the judgment of a single judge; secondly that it is any event obiter and thirdly that it has been overtaken by subsequent legislation, in particular the 1997 Act.
In Goodman there were three judgments in the Supreme Court, those of Chief Justice Finlay and Hederman and McCarthy JJ. The other judges, O’Flaherty and Egan JJ expressly agreed with each of the judgments delivered. Moreover, Finlay C.J. expressly agreed with Mr. Justice McCarthy’s dicta on the subject of costs. At p.591 to 592of the judgment the former Chief Justice stated:“With regard to the questions of the common law precedents concerning commissions of inquiries in other common law countries, and with regard to other questions raised concerning the construction of ss. 4, 5, and 6 of the Act of 1979, I have had the opportunity of reading the judgment which is about to be delivered by McCarthy J., and I agree with it.”
It does not, therefore, seem possible plausibly to argue that the judgment of McCarthy J. expresses simply his own view: it appears to have the endorsement quite expressly of at least three of his colleagues.
As I have noted above, McCarthy J. agreed that “there is no usurpation of the role of the judiciary in the administration of justice” in the establishment of a tribunal such as that then under consideration. He did this for the reasons given by his colleagues and summarised earlier in this judgment. But this was based on his presumption that the requirements of fair procedures would be observed by any tribunal sitting pursuant to the 1979 Act which statute “… must be construed as subject to the constitutional framework and, in particular, involving fair procedures”.
I would remark with respect that this latter observation is manifestly correct. This fact is inconsistent with the observation of McCarthy J. being merely obiter. Indeed, on the contrary, the passage in question seems to me to turn upon the construction of the arguably general phrase “the findings of the Tribunal” in a particular, limited, way so as to avoid the constitutional vulnerability which would follow if those words in the 1979 Act were given an entirely literal meaning. This, of course, involves the assumption that these words are capable of a different and narrower meaning, which, like McCarthy J., I believe they are.
The question of the effect of subsequent legislation will be considered below.
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The decision on Costs.
Against that background, it is now necessary to consider the basis on which the Murphy interests were refused their costs.
It will be recalled, and is in any event set out above, that the then Chairman of the Tribunal held that:“Taken as a whole the adverse findings of obstructing obstructing and hindering the Tribunal made against the Applicants’ were so serious, so extensive and so far reaching as to clearly lead any reasonable person considering them to the conclusion that the individuals concerned, particularly those I have named in the preceding paragraph, were intent from the outset in ensuring that the Tribunal would not find the truth...
In spite of the serious findings of corruption on the part of some of the Applicants’ I would have considered awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am firmly of the view that there should be a strong incentive for a party to cooperate with the Tribunal and that any party who fully cooperates with the Tribunal by giving a truthful account of their knowledge of the events under inquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse findings on substantive issues such as corruption.
In all the circumstances therefore I do not believe it would be appropriate to award any costs to the Applicants and I therefore refuse their application.” (Emphasis added)
From this ruling the following propositions seems to me to follow:
(a) That, in the Tribunal’s mind, the appellants had disentitled themselves to some portion of their costs by virtue of the “serious findings of corruption” i.e. findings on the subject matter of the inquiry.
(b) But they might still have recovered “a portion of their costs” had they, in the Tribunal’s view, co-operated with it.
(c) These “portions” are not defined in terms of fractions or percentages but it is said that a person who co-operates fully and truthfully with a tribunal can reasonably expect to recover at least “a significant portion of his or her costs”, notwithstanding adverse substantive findings. (Emphasis added)
(d) Therefore, both the substantive findings and the “obstructing and hindering” finding are implicated in the tribunal’s decision refusing all costs.
(e) It is quite clear from the full text of costs ruling, which is referred to earlier in this judgment, that the substantive findings, like the finding of obstruction and hindrance, contributed to the decision to refuse costs to the appellants. This appears quite contrary to the dictum of McCarthy J., cited above from Goodman.
In making submissions on the costs ruling, counsel for the Tribunal on the hearing of this appeal had some difficulty in construing it. However, he confirmed that the phrase, in the Tribunal’s list of the ways in which the Tribunal had allegedly been hindered and obstructed by Mr. Murphy, “failing to give a truthful account” means perjury. He also confirmed that those findings reflect the fact that “every conflict of fact had been resolved against the Applicants”. (Emphasis added) But he first agreed that both the findings of corruption and the findings of non-cooperation “are implicated as the basis of the costs order”. However, he almost immediately amended this saying “no, the finding of corruption is not at all involved.” I do not understand the logic of this, or how it relates to the express words of the ruling, which clearly states, in its penultimate paragraph, that the “serious findings of corruption” have reduced the costs entitlements even of a co-operating party to a “portion” or a “significant portion” of his total costs.
In the ruling, the Tribunal considered both the substantive findings as to the subject matter of the Tribunal’s inquiries and the Tribunal’s conclusions as to the degree of co-operation it has received from a party are relevant to the award of costs. But they are relevant to different (though undefined) portions of the costs. An undefined but “significant” portion of the costs is referable to conduct before the Tribunal alone, without regard to any adverse substantive findings. In the circumstances of this case the appellants failed to meet the Tribunal’s criteria either in relation to the substantive subject of its inquiries or in relation to their conduct before the Tribunal.
The extent to which this is consistent with the statutory power set out at s.6 of the 1979 Act as amended and the authorities cited above, specifically the judgment of McCarthy J. cited above, will soon fall to be considered.
Undisclosed material.
But there is another and separate aspect of the Tribunal’s proceeding about which the appellants complain. They say that they have discovered very late in the day, in the course of discovery made by the Tribunal a very short time before the High Court hearing of this case, that the Tribunal had in its possession for a number of years, certain tape recorded and transcribed material. This appears to show their accuser, Mr. Gogarty, making allegations of impropriety, some extremely grave, against other, unconnected, persons. They say that this material was manifestly relevant to the question of Mr. Gogarty’s credibility and that it was quite wrongly not disclosed to them. This had the effect of concealing it from them. Instead, they were given a “redacted” version of the material in question, from which the Sole Member had excised all references to the allegations made by, or attributed to, Mr. Gogarty against these third parties. They say that the Tribunal, precisely as was done in O’Callaghan v. Mahon [2006] 2 IR 32, wrongfully concealed this material from them.
Nature of the materials.
As mentioned above the material in question was eventually produced only long after the appellants had issued these judicial review proceedings and the plenary proceedings with which they were consolidated. The Court was told without contradiction that the material was produced not more than a fortnight before the hearing of the High Court proceedings. The Murphy interests had no prior access to them and were refused such access when they asked for all redacted material.
The discovered material showed that Mr. Gogarty had apparently made statements to the Tribunal or to third parties alleging serious improprieties against at least four other persons whom it is fair to describe as being well known persons of good reputation. One of these persons has since died. The first and most immediately relevant of the allegations was that Mr. Gogarty claimed to know, from a named source, that money was paid in cash, not only to Mr. Burke, but to another politician, in connection with a named site, and that the two politicians had co-operated to bring about a desired result. I do not propose to mention the name of the other politician, or the site, or the timing of this event but its relevance to the matters at issue before the Tribunal is obvious. Either Mr. Gogarty was telling the truth when he said that the named person gave him this information, or he was not. Either the information itself was true, or it was not. If either of these matters was untrue, that would involve the consequence that Mr. Gogarty had made an admittedly or demonstrably false allegation against another prominent politician. This in turn would have been gravely destructive of his credibility and would raise questions as to his motivation.
None of the other persons against whom Mr. Gogary is portrayed as making or relating allegations are as prominent as the second politician whose alleged activities have just been described. But it is fair to say, at the same time, that they are all well known persons in professional commercial and political circles. It would be difficult to give a flavour of what was said about them without tending to identify them: in any event, the allegation about the second politician, because it also involves a person already much mentioned before the Tribunal (Mr. Burke) and because of its general similarity to the “Briarsgate” allegation, where findings adverse to the Appellants were made, is the most glaring omission.
On the hearing of this appeal the Tribunal’s counsel dealt with this matter very briefly indeed, saying only that the appellant should have had the material but they had not been given it. I interpret this as acquiescence in the factual aspect of the appellants’ complaints but putting in issue the legal significance of them. He said the Tribunal had acted wrongly, but in good faith and for the avoidance of collateral issues.
At this point it is necessary to repeat, as has already been said several times in this judgment, that the appellants’ claims for relief relate wholly to the findings of obstruction and hindrance and do not extend to the substantive findings of the Tribunal on the issues into which it was set up to inquire.
This issue of concealed material comes before the Courts very late indeed. The appellants cannot be blamed for this since they received the material only, it would appear, a matter of days before the High Court hearing. One of the consequences of this delay is that, unfortunately, both Mr. Gogarty and at least one of the persons against whom he appears to have made allegations have died since the eventual disclosure. Mr. Gogarty’s death means that the material in question can never now be deployed in cross-examination of him and he himself is, of course, unable to defend his position.
The rights of third parties make it difficult to give any satisfactory account in this judgment of the material in question. However it is possible to say that, at least on one tenable view of it, it is material of an explosive nature, given the position and significance of Mr. Gogarty to the Tribunal’s findings. But in dealing with the material here it is necessary for the Court to have regard to the good name of the persons against whom he is said to have made allegations, who were and are without exception prominent and reputable people. It is important to say that, having read the papers presented for the purpose of this appeal, I have absolutely no reason to believe that the allegations said to have been made against the third parties have any truth whatever to them. Indeed, having regard to their constitutional right to their good name and the obligations which that imposes on the State, including the courts, I intend to presume that the allegations made against them are false. But that, as will be seen, merely emphasises the importance of the material from the appellants’ point of view.
Position of Mr. Gogarty
Mr. Gogarty was the principal, and on many matters the only, witness against the Murphy interests. For example, the allegations against Mr. Joseph Murphy Senior and Mr. Joseph Murphy Junior in relation to the alleged payment to Mr. Burke, depend wholly on his evidence. All of the other relevant witnesses contradicted him. There was no question of corroboration or other external support for the account he gave, insofar as it concerns the Murphy interests.
Accordingly, the appellant’s have been gravely damaged in their characters and reputation and face an enormous financial liability, wholly on the basis of an issue of credibility between Mr. Gogarty and themselves. If the allegations which Mr. Gogarty was making were to be tested at all, their defence to them had to raise the question of Mr. Gogarty’s credibility.
Every lawyer with even a little experience is aware of the exigencies of a hearing of that sort. The law and the procedures adopted must give ample scope to a person accused to defend himself according to the needs of the individual case. In Re Haughey [1971] IR 217 at 264 Chief Justice Ó Dálaigh said:“[I]n proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”
On that basis the Court held that a person in the position mentioned in the preceding paragraph is in all cases entitled to the following “minimum protection”:
“(a) that he should be furnished with a copy of the evidence which reflected on his good name;
(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;
(c) that he should be allowed to give rebutting evidence and
(d) that he should be permitted to address, again by counsel, the Committee in his own defence.”
The Haughey case was decided in the context of an inquiry by the Oireachtas Committee on Public Accounts. But Ó Dálaigh C.J. continued, at p.264, to say that without the rights mentioned above:“…[No] accused - I speak within the context of the terms of the inquiry - could hope to make any adequate defence of his good name. To deny such rights is, an ancestral adage, a classic case of clocha ceangailte agus madraí scoilte. Article 40, s.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness and it is the duty of the Court to underline that the words of Article 40,s.3 are not political shibboleths but provide a positive protection for the citizen and his good name.”
It will be apparent from the foregoing that one of the principal recourses of a citizen who is attacked, undermined in his character and reputation and who faces the possibility of an enormous liability on the basis (here) of the uncorroborated evidence of a single witness, is to cross-examine such person or have him cross-examined on the accused person’s behalf. The great importance of cross-examination has already been the subject of discussion by me in Maguire v. Ardagh [2002] 1 IR 385, at p.704. I do not want to lengthen this judgment by recapitulating this material, but I wish to be taken as restating as what is said there at pp 704 to 707, particularly the observation (at p. 707) that cross-examination “has been the means of the vindication of innocent people”.
In the course of this passage I also said at p. 705:“Cross-examination is a special skill and usually an acquired one, of which a thorough knowledge of the facts of a particular case is merely the foundation.”
Here, the Tribunal does not dispute that the appellants were entitled, before being found guilty of obstruction or hindrance, to fair procedures and specifically to the rights enunciated in Haughey. These rights include, prominently, a right to cross-examination. Oral contradiction in a public forum is the culmination of the work of the cross-examiner but is by no means the whole of it. All effective cross-examinations (especially in matters as wide ranging, and as old, as those on the basis of which a finding of obstruction and hindrance were made here), are the result of intensive preparation. Such preparation involves an extremely thorough consideration of what precisely the witness is saying, what the scope to contradict him from other sources is, and whether the witness’s own credibility is vulnerable to attack. It would be positively negligent of any professional cross-examiner to fail to consider what he or she might hope to achieve under each of these headings.
Procedures of the Tribunal.
There was a time when the whole, or substantially the whole, of the work of a Tribunal of Inquiry would take place in public. Though this may have had some disadvantages, and may have prolonged the sittings (though to nothing like the extent which has since become common) it had the advantage that all parties who had been granted representation knew precisely what material the tribunal and its lawyers had. But this custom has changed, to the point where certain modern Tribunals of Inquiry can go for periods of months or even years without holding a public sitting as they are conducting certain inquiries in private. Though this may have some advantages, it has the drawback that (apart from leaks) only the tribunal knows precisely what material has been gathered. In the case cited several times above, O’Callaghan v. Mahon, a complaint was made that though the tribunal had a good deal of material highly relevant to the credibility of a witness making extremely damaging allegations against Mr. O’Callaghan, this had not been disclosed to him or to solicitors or counsel acting for him. In that case, the nub of the complaint made when the material eventually came to Mr. O’Callaghan’s knowledge was that his accuser had apparently given different accounts of important and relevant events at different times. He also complained that there had been a consistent practice of redacting, i.e. excising, exclusively material damaging to his accuser’s credibility. This is a feature of the present case as well.
Mr. O’Callaghan issued proceedings by way of judicial review claiming that he was entitled to see all statements that his accuser had given to the tribunal and sought a declaration that the refusal to disclose such statements amounted to a breach of fair procedures. The tribunal resisted this and argued that the Court should not interfere with what they did because they were “masters of their own procedure”. Mr. O’Callaghan was successful both in the High Court and, on the tribunal’s appeal, in this Court. It was emphasised in particular that, in the context of a tribunal which conducts extensive inquiries in private, the right to cross-examine is not vindicated simply by giving counsel for the party attacked an opportunity to stand up and ask the witness some questions: on the contrary, he or she must be given any material within the knowledge of the tribunal which has the reasonable possibility of being useful in cross-examination, simply because the material exists and is not known to the parties accused since the tribunal has kept it confidential. In the words of Geoghegan J. at p. 81:“… it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against the applicant and of which he had no prior notice, be duly produced.”
This case is not precisely the same as the O’Callaghan case. Because of the need to consider the reputation of the people involved, presumptively innocent people of good repute, only a very restricted account of the materials now to hand here can be given. But there is no doubt, and it has not been denied, that solicitors and counsel for the Murphy interests sought copies of all statements by Mr. Gogarty made to the Tribunal, or to third parties but which were in the possession of the Tribunal. They were refused this. They were told expressly on several occasions in writing that the then Sole Member (and not the present chairman of the Tribunal) had personally decided that the materials which had been redacted were “irrelevant”.
An examination of the correspondence which the Tribunal had with the appellants’ solicitors shows that “any deletions in the transcripts have been certified by the Sole Member as wholly irrelevant.” The Sole Member himself remarked, in the transcript of the 8th July, 1999:“That’s correct. I listened to the tapes. I had a transcript of the entirety of the verbal or the oral statements or whatever it is, evidence on the tapes. I listened to them, sorry I had a transcript, I listened to the actual tape, I had a red pencil and I blocked out pieces which I thought were of absolutely no relevance to [named person] or this Tribunal.
It would, I suppose, be pejorative to say that the tapes in part followed a certain gentleman’s capacity.
I cleaned, not the tapes, I cleaned the script, and I believe that I have done a reasonably fair job, I certainly didn’t cull anything that I thought could be of interest to any party in the Tribunal. Now that’s what you have got because there were other people mentioned, there was this, that and the other mentioned and…”.
Counsel for the Murphy interests, Mr. Cush, then suggested that the redacted material be disclosed simply to one member of the appellants’ legal team so that he could form a view on its utility and use it where appropriate, but this request was denied. It must have been perfectly clear that this decision stymied cross-examination.
I have to say that I simply do not understand the basis on which (to take the simplest example) the allegation made about the other politician was redacted. If the ordinary discovery rules applied, as expounded in O’Callaghan v. Mahon, then anything capable of supporting the appellants case or undermining that of their accuser should have been produced. The question of the allegation against the other politician was manifestly relevant as to the credibility both of Mr. Gogarty as to his saying it, as to whether it had in fact come from the source he alleged, and as to whether or not it was true. Moreover, it would appear to be an allegation itself actually within the Tribunal’s remit: it is not obvious why it was not disclosed on that basis. Moreover, it was actually linked to Mr. Burke who was of course the subject of intensive investigations.
On the hearing of this appeal, counsel for the Tribunal (who had not been involved as one of the counsel appearing for the Tribunal at its own sittings) said that he did not stand over the redaction and non-production of the material in question. He said that “Bearing in mind the decision of this Court in O’Callaghan, I am conceding that the document should have been given to the Appellants.’’ By way of explanation he said that Judge Mahon (presumably an error for Mr. Justice Flood) thought that the documents in question were not relevant but in any event he said that the documents were irrelevant to the judicial review proceedings, even though it was in these proceedings that the documents were eventually disclosed. He then referred to the Tribunal’s “need to limit collateral credibility issues: they redacted the documents.” It is not entirely clear to me how the last matters fit in with the concession recorded above. And the allegation about the second politician, at least, is not a “collateral” issue on any view. It was concealed without justification.
It is noteworthy that before the Tribunal, in July, 1999, one of the Tribunal counsel (Mr. Gallagher S.C.) appeared to rely on confidentiality as a reason for non-disclosure. He said:“[A named person who had apparently given tapes and transcripts of Mr. Gogarty to the Tribunal] agreed to furnish the material to the Tribunal for the assistance of the Tribunal on the very strict understanding that it would only have been available to the Tribunal and only relevant matters material and relevant to the Tribunal would be circulated.”
In other words, the named person, who was a journalist, gave tapes and transcripts of his conversation to Mr. Gogarty and notes of them to the Tribunal but required a certain confidentiality which, in the Tribunal Counsels view, prevented their disclosure to the parties Mr. Gogarty was accusing. It is noteworthy that this defence or explanation of non-disclosure was not offered on the hearing of the appeal and appears wholly unstateable, particularly if reference is made to the judgment of Geoghegan J. in O’Callaghan v. Mahon, where a plea of confidentiality was advanced as a basis for non-disclosure. A witness cannot dictate how a court or tribunal will treat his evidence, or any items he produces. The interests of justice are paramount. It is also disturbing that the refusal of Mr. Cush’s request for the undisclosed material was made after the High Court decision in O’Callaghan v. Mahon. Accordingly, it could only be justified on the basis that the Tribunal might have succeeded in its appeal to this Court. But when its appeal was unsuccessful, the decision was not reviewed. I find this very disturbing.
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Statutory changes.
The present wording of s.6 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, after its amendment by s.3 of the identically titled 1997Act is as follows:
"(1) Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal or failing to co-operate with or provide assistance to, or knowingly giving false or misleading information to the tribunal), there are sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may, either of the tribunal's or the chairperson's own motion, as the case may be, or on application by any person appearing before the tribunal, order that the whole or part of the costs—
(a) of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.
(b) incurred by the Tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any other person named in the order”.
The resolution establishing the present Tribunal, as passed in Dáil Éireann on the 7th October, 1997 contains the following paragraph in relation to costs:
(C) (a) -
(b) all costs incurred by reason of the failure of individuals to cooperate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, be borne by those individuals.”
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Vires.
It will be observed that neither the statute, nor the resolution of Dáil Éireann, request or require the Tribunal to investigate questions of “obstruction and hindrance”. This is critical. It is simply not part of the Tribunal’s remit. Insofar as the question of costs are concerned, it would have been quite possible to make a finding, if the Tribunal considered the evidence supported it, that there had been a lack of cooperation on the part of any named parties. This is what was done in the case of other parties. Instead, the Tribunal appears, on the basis of the evidence set out above, quite consciously and deliberately to have used the words “obstruct and hinder” in the full knowledge that this was the identical phrase used to constitute one of the criminal offences capable of being committed in relation to the Tribunal.
Equally, the wording of s.6 of the 1979 Act, as inserted by the 1997Act, speaks (in the context of costs), of a “failing to co-operate”. It is not obvious why the Tribunal felt impelled to go further than this when their only concern with the conduct of the parties (as opposed to their actions in the substantive matter under inquiry) was in relation to costs. This Tribunal’s course of action is also at variance with that of the McCracken Tribunal, which also sent the papers in relation to how a particular person had interacted with the tribunal to the Director of Public Prosecutions. That tribunal, in taking the step, made no finding in relation to obstruction or hindrance but rather left the Director of Public Prosecutions to make up his mind whether or not to prosecute without any unnecessary Tribunal finding in relation to a criminal offence.
I do not believe that the expression by Dáil Éireann of the desire, in relation to costs, expressed at para (C), sub-paragraph (b) of the Resolution of the 7th October, 1997, in any way authorises or entitles the tribunal to make findings of the commission of a criminal offence other than findings which relate to the “definite matters of urgent public importance” set out at para. (A) of the Resolution of the 7th October, 1997. Insofar as it might be argued that the statutory provisions quoted above, from the Acts of 1979 and 1997 in relation to costs or sub-paragraph (b) of paragraph (C) of the Resolution imply such a power, I would decline to accept this. The statutes and Resolutions are expressed quite otherwise insofar as “obstruction and hindrance” are concerned and do not require a finding that these things have in fact occurred for the exercise of any legitimate discretion the Tribunal has in relation to costs.
For the reasons set out earlier in this judgment, I believe that the dictum of McCarthy J. cited above from the case of Goodman v. Hamilton continues to represent the law. For the reasons set out above I am wholly unimpressed by the tripartite challenge to it: on the contrary, I believe that McCarthy J. was conscious of a possible weakness in this Court’s and the High Court’s approach to the constitutionality of the tribunal, in the form of an argument that the costs jurisdiction prevented its substantive findings being “devoid of legal effect”. He found as he did in a necessary attempt to attribute to a tribunal under the 1921 Act as amended procedures which were themselves both fair and constitutional. If his judgment were to be attacked, it might more easily be done, in my opinion, on the basis that it is scarcely possible to regard the present costs jurisdiction (created in part many years after the judgment of McCarthy J.) as meaning that the tribunal’s findings are “devoid of legal effect.”
On the basis of Goodman v. Hamilton, the order refusing costs in this case must fall since, apart from anything else, it is plainly based in part on the substantive findings of the tribunal. It is not possible to sever this order because the tribunal itself has not made it clear to what portion of the costs the findings on the substantive issues refer.
I am also of the view that the appellants’ complaints to the effect that they were not put on notice that the Tribunal was considering making the finding of obstruction and hindrance, and that this was not communicated to them even when their solicitors specifically raised in correspondence the topic of the matters required to be addressed in the costs phase are borne out. Indeed, this is not disputed. Such notice was manifestly necessary, especially in light of the significance the tribunal placed on this finding in refusing costs.
I agree with the judgment of Fennelly J. in relation to the defence based on an alleged delay on the part of the applicants and I would reject the tribunal’s contentions in this regard, for the reasons which he gives.
I also consider that the appellants’ complaint about non-disclosure of relevant material to them has been substantiated. Despite Mr. Collins’s submission to the contrary. I believe that this complaint is relevant on the judicial review. This is by reason of the fact that the particularised findings of obstruction and hindrance arise directly and without more from the findings on the substantive issue, and the concealed material relates directly to these latter findings, because it relates to the credibility of Mr. Gogarty.
However, I do not believe that it would be proper or feasible for the Court to interfere with the decision on the substantive issue simply because the appellants, for reasons which seem to them sufficient, have not asked the Court to do so. But the concealment clearly, and quite expressly, fed into the “obstruction and hindrance” findings, which was a major cause of the Order refusing costs.
I have read with great interest the quotations in the judgment of Fennelly J. cited above from a leading English authority on administrative law in relation to Tribunals of Inquiry. As stated above, I agree with them. This Tribunal manifests two features of a tribunal of inquiry which are, in my opinion, fraught with great risks for justice. The first is that the investigative function - that carried out by the gardaí in relation to criminal matters - and the adjudicative function, or the function of making findings - that carried out by the Courts in criminal matters - are, in the case of a tribunal, conferred on a single body or even (as here before the retirement of the former Sole Member) on a single person.
The second risk is a corollary of the latter fact. An investigator in a case where there is only one witness to support allegations made, whose evidence is subjectively accepted by the investigator, may become so invested in that one witness as to become blind or insensitive to things which raise doubt as to his credibility. I believe that this is what happened in the case of O’Callaghan v. Mahon, cited above, and that it may well have happened here. It is a common phenomenon: in the well known miscarriage of justice case referred to as that of the “Guilford Four”, the investigating police officers were actually in possession of evidence providing an alibi for one of the four. But they had become so convinced of their guilt that they decided the alibi could not be reliable and concealed it. The Guilford Four spent over two decades in jail.
The foregoing illustrates the absolute centrality of proper disclosure to any approach informed by fair procedures. Evidence or material which has even the potential to be useful to the person accused in making his own case or in undermining that of his accuser must be furnished to him. The use to be made of such material is a matter, not for the investigators, but for the person accused and his chosen representatives. It is for that reason that an extremely low threshold for disclosure of material should be applied.
These concerns are amplified in my mind by a number of others. The Tribunal deliberately and consciously embarked on an inquiry, and arrived at conclusions to the effect that certain of the appellants had committed acts of obstruction and hindrance which were (a) outside its remit and (b) unnecessary to any function it had to perform. It did so in a context where it positively emphasised that these matters were criminal offences. Secondly, it was agreed on the hearing of this appeal that the Tribunal had resolved every single conflict of fact against the appellants. Thirdly, they withheld material from them which it is now admitted should have been disclosed and in doing so knew (as any lawyer must have known) they were gravely hampering the appellants in making their defence.
There is sometimes a tendency to be a little suspicious of persons who take legal proceedings against Tribunals of Inquiry on the basis that this itself is an act of obstruction. I do not agree with this. It is salutary to remember that the concealed materials would never have come to light in this case had the appellants not taken these proceedings. It is chilling to reflect that a poorer person, treated in the same fashion by the tribunal, could not have afforded to seek this vindication.
I wish to emphasise that the fact of statutes creating certain offences capable of being committed only in relation to a person’s interaction with a tribunal does not mean that the tribunal in question itself has a jurisdiction to enquire into whether a person has acted in the manner proscribed by the statute. On the contrary, that is exclusively a matter for the criminal courts, where the criminal onus of proof would apply and where, unless the offence alleged is a minor one, there will be an entitlement to trial by jury. It is a fundamental error to think that, because an offence in its terms is created in relation to a tribunal, that the tribunal is therefore authorised or entitled to make a finding that the offence has been committed, whether or not such finding is regarded as binding on any other court or tribunal.
None of the foregoing implies that there is not an entitlement to establish a tribunal to inquire into whether criminal acts have been committed, whether by a named person or not. As to whether (as the appellants submitted) such an inquiry would require a heightened standard of procedural protection for a person suspected of committing what amounts to a criminal offence, that is a point I would leave over, as being unnecessary to decide here. I prefer to deal with this matter on the narrower but sufficient ground that this particular tribunal as constituted simply had no power to inquire into the question of “obstruction and hindrance” and, even for the purpose of costs, could have discharged its function quite adequately by simply considering the question of cooperation. I cannot agree with the learned trial judge that the distinction between a finding of a failure to cooperate, and a finding of obstruction and hindrance is a mere matter of degree: that this is not so is evident from the Tribunal’s repeated references, quoted above, to obstruction and hindrance as being a criminal offence, and as something involving other serious consequences. The Tribunal, for whatever reason, wanted to make a finding of criminal misconduct against the Murphys and did so. But it had no need, and no power, to make the specific finding made.
Accordingly, on the substantive grounds that the findings on obstruction and hindrance are simply outside the terms of reference of the Tribunal, and on the several procedural grounds mentioned above, I would quash the decision on the 9th November, 2004 whereby the application of the appellants for their costs was refused.
Having done this, I do not propose to proceed to consider the appellants’ claim that s.6 of 1979 Act as it now stands is unconstitutional. It is unnecessary to do so and it has long been the practice to avoid pronouncing upon such a constitutional question where there is no need to do so to resolve the issues in a particular case. I would however observe that, in Goodman, so much cited above, the constitutionality of a Tribunal of Inquiry, at least one which enquires into matters which may reveal or constitute a criminal offence by some person, was established in a particular and very specific way. This was on the basis that the findings of a tribunal have merely the status of opinions and that such opinions are “devoid of legal consequences” and do not impose any liabilities or affect any rights. They are “sterile of legal effect”. In the judgment in which the latter phrase is to be found, that of Brennan J. in Victoria v. Australian Building Construction Employees Federation, cited above, it is followed by the apparently explanatory phrase (at pp. 152 to 153) where:
“It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as judicial… the absence of any legal effect in the findings of the Royal Commissioner appointed merely to inquire and report denies any suggestion that such a commissioner is exercising judicial power.”
Accordingly, in 1992 a challenge to the constitutionality of a Tribunal of Inquiry was rejected on the grounds that its “findings” were merely opinions, devoid of legal effect. They were merely opinions, given “in vacuo”.
There have been changes since then, notably in the form of the statute of the 1979 Act as amended. This appears to elevate the “findings” of a tribunal into a matter to be taken into account on the question of costs - whether a party can receive his own costs or be made to bear the costs of others. Whether a finding of this sort is “devoid of legal effect” is a matter which does not arise here, because of my decision that the impugned costs decision falls to be quashed on other less far reaching grounds, but will undoubtedly arise at no very distant date. In Maguire v. Ardagh, cited above, I discussed at some length whether it was at all realistic to describe the finding of an Oireachtas Committee in relation to a possible unlawful killing as merely an “opinion”. I now merely refer to this discussion again and to the observations on the meanings of words such as “finding” contained therein.
It is certainly within the power of the legislature to make provision for an award of costs before a Tribunal of Inquiry. It did this in 1997 and had done so previously in 1979. But whether this new power, conferred on a tribunal which provides for the individual notably attenuated procedural safeguards by comparison with those available in a court is consistent with the Tribunal’s established constitutional status which depends on its “findings” having the status merely of opinions and being “devoid of legal effect” is manifestly doubtful. But the issue does not, in my opinion, arise directly in the present case so I propose to abstain from expressing a concluded view on it.
