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	Irish Law Reform Commission Papers and Reports
You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(5) (May 2005) URL: http://www.bailii.org/ie/other/IELRC/2005/3(5).html Cite as: [2005] IELRC 73(5)

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5. CHAPTER 5 PROCEDURES AND CONSTITUTIONAL JUSTICE

A Introduction

5.01     This chapter deals with the question of what procedures a tribunal of inquiry may adopt. This includes discussion of the four procedural rights arising from the decision of the Supreme Court in In re Haughey.^[1] The Commission also discusses other procedural issues, such as the preliminary information gathering stage, the publicity of tribunal hearings and the question of broadcasting.

5.02     In Haughey v Moriarty,^[2] the Supreme Court stated that generally there are five stages in the tribunal of inquiry process:

1. A preliminary investigation of the evidence available;

2. The determination by the tribunal of what it considers to be evidence relevant to the subject matter of the inquiry;

3. The service of such evidence on the persons likely to be affected thereby;

4. The public hearing of the evidence of witnesses, together with cross-examination by the persons likely to be affected by the evidence;

5. The preparation of the Report setting out the findings of the tribunal and any recommendations based on those facts.^[3]

5.03     It should be noted from the outset that tribunals of inquiry have a wide discretion in the area of procedures which will be influenced by factors such as the nature of the inquiry, speed, efficiency and cost, subject to the requirements of fair procedures and

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constitutional justice. The issue of fair procedures and constitutional justice were discussed in detail in the Consultation Paper,^[4] but in view of its central importance, it is necessary to return to this area in some detail, taking into consideration relevant decisions of the courts since the publication of the Consultation Paper.

B Tribunals of Inquiry May Control their Own Procedures

5.04     The Tribunals of Inquiry (Evidence) Acts 1921 to 2004 do not specify what procedures should be adopted by tribunals of inquiry, other than that the public should not be excluded from any of their proceedings, unless it is, in the public interest, expedient to do so by reason of the subject matter of the inquiry or the nature of the evidence to be given.^[5]

5.05     The courts have repeatedly held that tribunals of inquiry are masters of their own procedure, and that as such, they have a wide discretion as to what procedures they may adopt, subject to the requirements of constitutional justice.

5.06     In Flood v Lawlor,^[6] the Supreme Court described this discretion as follows: "It is not necessary to stress, because it has been repeatedly said in this court, that the courts in interpreting the relevant legislation, must afford a significant measure of discretion to the Tribunal as to the way in which it conducts these proceedings. It must, of course, observe the constitutional rights of all persons who appear before it or upon whom the decisions of the Tribunal or the manner in which they conduct their business may impinge, but making every allowance for that

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important qualification, the principle remains as I have indicated." ^[7]

5.07     The fact that tribunals of inquiry are masters of their own procedure may be traced to the inquisitorial nature of the inquiry and the need for flexibility in dealing with the particular matter under investigation. The Commission considers that in light of this those charged with chairing inquiries and those who assist them should ensure that in formulating procedures, the inquisitorial nature of the process rather than those of the adversarial process are paramount.^[8]

C Code of Procedures

5.08     A related point is whether a tribunal's wide discretion as to procedure should be reduced to a single code of rules for tribunals of inquiry comparable to the rules of courts.^[9]

5.09     Arguably, a single code of rules on evidence and procedure would act as a guide for those charged with running tribunals of inquiry in the conduct of their inquiries, and introduce an air or predictability which would militate in favour of fair procedures.^[10] However, in the Consultation Paper the Commission rejected this suggestion. It noted that as tribunals of inquiry vary in subject matter, with no two inquiries being exactly alike, their procedures should likewise be flexible. Accordingly, it did not recommend that a formal code of procedures should be established.^[11]

5.10     The Commission remains of this view, subject to one proviso. It considers that the Central Inquiries Office ^[12] should draw up a handbook for those charged with chairing tribunals of inquiry setting out briefly the law relating to tribunals of inquiry, a summary of the law relating to constitutional justice and its implications for

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tribunals of inquiry, and procedures which have been adopted by previous inquiries both in Ireland and abroad. The Commission considers that this would be a useful tool to assist chairpersons of tribunals of inquiry to formulate procedures for their own inquiries. It would prevent them "having to reinvent the wheel" by enabling them to build on good practice.

5.11     The Commission does not recommend that a formal code of procedure be established for tribunals of inquiry. It recommends that the proposed Central Inquiries Office should draw up a handbook setting out briefly the law relating to tribunals of inquiry, a summary of the law relating to constitutional justice and its implications for tribunals of inquiry, and the procedures which have been adopted by previous inquiries both in Ireland and abroad. D Constitutional Justice

5.12     The Commission now turns to the critically important issue of the application of the principles of constitutional justice to tribunals of inquiry.

5.13     The starting point for any discussion of the application of the principles of constitutional justice to tribunals of inquiry is the decision of the Supreme Court in In re Haughey ^[13]

(1) In re Haughey

5.14     This case arose out of the investigation by the Committee of Public Accounts into the expenditure of a certain grant-in-aid for Northern Ireland relief. Section 4(3) of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act 1970 provided that, if any person being a witness before the Committee should refuse to answer any question to which the Committee might legally require an answer, the Committee might "certify the offence of that person under the hand of the chairman of the committee to the High Court" and that the High Court might "after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court."

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5.15     The Committee received hearsay evidence, containing serious accusations against Mr Padraic Haughey. Mr Haughey appeared before the Committee as a witness. Having unsuccessfully sought leave to cross-examine witnesses appearing before the Committee and to have counsel appear on his behalf, Mr Haughey read a statement in which he refused to answer any questions of the Committee. The Committee then certified to the High Court that "an offence under the [1970] Act has been committed by the said Mr Haughey" by reason of his refusal to answer questions. The High Court convicted Mr Haughey and he was sentenced to six months imprisonment.

5.16     On appeal, the Supreme Court considered whether there had been a breach of fair procedures in not allowing Mr Haughey leave to cross-examine witnesses appearing before the Committee and to have counsel appear on his behalf. In this context, the Supreme Court stressed that the role of Mr Haughey before the Committee was not that of a witness but was that of a party accused of serious offences, whose conduct had become the subject matter of the Committees inquiry.

5.17     The Court held that in those circumstances, Mr Haughey should have been afforded a reasonable means of defending himself. The Supreme Court stated that the minimum protection which the State should afford such an individual was as follows: "(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."^[14] The Supreme Court concluded that as Mr Haughey had been deprived of his right to cross-examine, by counsel, his accusers and to address, by counsel, the Committee in his defence, he had not received a reasonable means of defending himself and accordingly his personal rights as guaranteed by Article 40.3 of the Constitution had been infringed.

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(2) The Need for A Tailored Approach to the In re Haughey Principles

5.18     In recent years, the Supreme Court has stressed that tribunals of inquiry should take a tailored approach to the issue of constitutional justice. In Lawlor v Flood,^[15] Murphy J, speaking in the context of the right to cross-examine, stressed that the constitutional rights flowing from In re Haughey are "not a ritual or a formula requiring a slavish adherence."^[16] Rather he suggested that the constitutional rights entitlement of a particular individual will vary according to the position in which he is placed, a position that he acknowledged might well evolve during the course of proceedings.

5.19     Similarly, in O'Callaghan v Mahon,^[17] Geoghegan J stated that: "Given the clear public interest from time to time in having matters investigated by a 1921 Act tribunal, it may well be that the requirements of the constitutional obligation to vindicate as far as possible the good name of the citizen are in that context somewhat less stringent than in other circumstances. For that reason, I would prefer not to express any view on whether all the rules relating to evidence and cross-examination etc. fashioned by the courts or derived from the Common Law Procedure Acts are necessarily and in all circumstances equally applicable to a 1921 Act tribunal."^[18]

(3) The In re Haughey Principles Apply Only to Persons Whose Rights are Risk

5.20     As has been noted, the Supreme Court in In re Haughey stressed that the role of Mr Haughey before the Committee was not that of a witness but was that of a party accused of serious offences, whose conduct had become the subject matter of the Committee's inquiry.

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5.21     This approach has been echoed in a number of other decisions.

5.22     Notably, in Boyhan v Beef Tribunal,^[19] the plaintiffs were members of the United Farmers Association (UFA). The Tribunal granted them limited representation, namely, the right to be present when their witnesses gave evidence and to have the right to examine their witnesses and to participate in the tribunal at that time. The plaintiffs sought an injunction requiring the tribunal to grant them full representation at the proceedings of the tribunal when it was dealing with matters which the plaintiffs deposed were particularly relevant to them ("relevant allegations") or, in the alternative, full representation at the proceedings of the tribunal where there was any purported refutation by or on behalf of any other parties of the evidence given by the plaintiffs' witnesses. They also sought an injunction directing the tribunal to furnish books of documents in relation to the "relevant allegations" or, in the alternative, such portions of the books of documents, which comprised evidence tending to support or refute the evidence to be given by the plaintiffs' witnesses at the tribunal. The plaintiffs alleged that they represented the public interest and the interest of farmers.

5.23     The High Court refused the application. Applying, the principles in In re Haughey, Denham J commented: "It is clear that the UFA is not an accused. Its conduct is not being investigated by the Tribunal. There are no allegations against the UFA or its members. It is a witness, which has proffered itself. As such, while its constitutional rights must at all times be protected it does not appear that its rights -- to good name, for example -- are in jeopardy in any way at all. The position of the UFA at this time in relation to the Tribunal is analogous to a witness in a trial and as such it is not entitled to the protection as set out at (a) and (d) by O Dálaigh CJ [in In re Haughey]. Its position, as

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a witness, is fully protected by the limited legal representation awarded by the Tribunal."^[20]

5.24     Thus, Denham J rejected the contention that refutation by one witness of evidence given by a second witness means that the reputation of the second witness is sufficiently affected to warrant representation for the second witness at times other than when giving evidence. She also explicitly rejected the argument that an effect on a person's financial interests by virtue of events the subject matter of a tribunal would itself entitle the person to full legal representation.

5.25     In summary, persons asked to appear before a tribunal of inquiry are entitled to the rights listed in In re Haughey where the allegations against that person are such that the person is not in the position of a mere witness but in that of a person accused of serious offences, whose conduct is the subject matter of the inquiry and that person can point to a substantive or external right, such as their good name and reputation, which is under threat and requires protection in the form of procedural rights before the inquiry. As Ó'Dálaigh CJ stated: "In 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."^[21]

5.26     However, the Commission recognises that procedural rights are sometimes extended to individuals even if they are not entitled to them as of constitutional right. This issue is discussed more fully in the context of the right to representation, but the Commission accepts that tribunals extend procedural rights for a variety of reasons, including situations when the issue of whether they are strictly entitled to them is unclear. The Commission considers that in such situations, in deciding whether to extend procedural rights to

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individuals not strictly entitled to them, a tribunal should bear in mind the inquisitorial nature of its investigation.

5.27     The Commission notes that the principles of constitutional justice listed by the Supreme Court in In re Haughey [1971] IR 217, namely, the right to copies of evidence taken, the right to crossexamination by a lawyer, the right to give rebutting evidence, and the right to address a tribunal through a lawyer, do not apply to all parties before a tribunal. They apply only to a person in the equivalent position of a person charged with a serious offence, whose conduct is the subject matter of the inquiry and who can point to a right, such as their good name and reputation, which is under threat.

(4) Specific Rights

(a) Right to Legal Representation

5.28     Section 2(b) of the Tribunals of Inquiry (Evidence) Act 1921 ("the 1921 Act") gives tribunals of inquiry established pursuant to the Act a discretion to grant legal representation to persons appearing before them and appearing to them to be interested, by counsel or solicitor or otherwise, or to refuse to allow such representation.

5.29     The Commission has already noted that the Supreme Court decision in In re Haughey provides that a person will only be entitled to legal representation before an inquiry, as of constitutional right, where the allegations are such that the person is not in the position of a mere witness but rather of a person whose conduct is the subject matter of the inquiry and that person can point to a substantive or external right which is under threat and requires protection in the form of procedural rights before the inquiry. In addition, constitutional justice would not require the granting of representation to individuals appearing before the information gathering stage where it is held in private.

5.30     However, in certain circumstances it may be deemed appropriate to grant legal representation to persons who do not fall into this category, and section 2(b) of the Tribunals of Inquiry (Evidence) Act 1921 caters for such situations. For example, where the tribunal is investigating matters which have left victims or survivors in their wake and where these are identifiable persons, those individuals will be accorded legal representation. Examples of such inquiries include the Whiddy Inquiry; the Stardust Inquiry; the Finlay

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and Lindsay Tribunals dealing with infected blood products; the Morris Tribunal into Garda misconduct; and the Barr Tribunal into the shooting of John Carthy.

5.31     It should be noted that the position in respect of these individuals is quite different to the position of those against whom allegations are made, or whose reputations are at stake. The victims or survivors are unlikely to have their reputations subjected to criticism; rather the case for their being represented is that they have been so strongly and uniquely affected by the alleged or suspected misconduct, maladministration, or otherwise. It may be argued that any questions their legal representatives would have asked could be satisfactorily dealt with by counsel for the inquiry.^[22] Nonetheless representation has been granted to such persons in the inquiries just mentioned. A clear practical reason for so doing is that such inquiries are dependent on the co-operation of the victims, survivors, and the grant of representation may assist in this process.

5.32     In considering whether to exercise its discretion under section 2(b) of the 1921 Act, the Commission notes that a tribunal should take into account a number of factors. The first is the requirement of constitutional justice. It should be remembered that in cases where constitutional justice does not apply the persons who appear to give evidence to the tribunal are witnesses, not parties. The second is whether, bearing in mind the inquisitorial nature of the tribunal, the granting of representation would assist the tribunal.

5.33     In considering this factor it is notable that section 2(b) of the 1921 Act confers a power to refuse as well as grant representation to interested parties. Thirdly, the tribunal may take into account whether the interests sought to be protected by the granting of representation could adequately be protected by the tribunal itself and its legal team. It should be remembered that the role of counsel for the inquiry should not be confused with that of a party in adversarial proceedings. The position of counsel for the inquiry arose because it would have been very difficult for the members of tribunals to carry out their functions if they had to act as investigators, inquisitors, and adjudicators. As a result, tribunals appointed counsel to assist them in deciding what evidence should be obtained, and direct what steps

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should be taken in the search for the causes of the matter under investigation.^[23]

5.34     If a tribunal decides to exercise its discretion to grant representation it should also be borne in mind that there are a number of options available. The first is that it may grant individual representation, the second is that the tribunal may grant pooled representation, and the third is that it may grant a mixture of pooled and individual representation.

5.35     Pooled representation, by which a group of people may be represented by a single legal team, has much to commend it particularly where the parties before an inquiry have largely the same interests. For example, in the Barr Tribunal all 36 members of An Garda Síochána who have an interest in the tribunal were represented by a single legal team. However, in many cases witnesses will have diverse, if not conflicting, interests and therefore one single legal team may not be appropriate. In such situations a tribunal may see fit to grant a number of different groups separate pooled legal representation and/ or individual representation. A variation on this would be the appointment of counsel by the tribunal who would sit in on the hearings and act as "guardian of the witnesses interests" in much the same way that counsel for the Attorney General exercise a watching brief in cases involving the Constitution. The Commission considers that such an approach has much to commend it.

5.36     The Commission does not propose to recommend that the legislation be amended to curtail the discretion of tribunal in respect of the grant of legal representation, but instead proposes to summarise the factors which should be taken into account in this context.

5.37     The Commission recommends that before exercising their discretion to grant representation, tribunals of inquiry should consider:

• Whether constitutional justice requires the granting of representation;

• Whether the granting of such representation would assist the tribunal;

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• Whether counsel for the inquiry could discharge the functions sought to be achieved by granting witnesses representation;

• Whether pooled representation would be appropriate;

• Whether individual representation would be appropriate;

• Whether a mixture of pooled representation and individual representation would be appropriate;

• Whether the tribunal should appoint counsel to act as guardian of the witnesses interests.

(b) Full or Limited Representation

5.38     The Commission now turns to discuss to what extent a grant of legal representation involves full or limited representation.

5.39     In some inquiries the granting of legal representation will require that the person be represented at all stages of the inquiry. This may be described as full representation. In other inquiries, this will require that the person be represented only at certain stages of the inquiry, where their rights are at risk. Applying this test in a wideranging inquiry, which is obliged to deal with a variety of issues, it would, the Commission considers, be unnecessary to grant full representation to persons whose substantive rights are implicated in respect of only one or a few of these issues under investigation. Indeed, with the increasing tendency amongst inquiries to modularise or divide their task into phases, it will become easier for representation to be granted which is limited to one or two phases or modules of an inquiry. In this context, the Commission endorses the approach to limited representation expressed by Denham J in Boyhan v Beef Tribunal.^[24]

5.40     The Commission recommends that, in respect of the two types of individual legal representation, limited representation and full representation, the entitlement to either will depend on the extent to which an individual's rights are at risk. If they are at risk during the whole inquiry, the Commission recommends that full representation should be granted whereas if they are at risk only at certain stages of the inquiry, limited representation only should be granted.

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(5) The Four In Re Haughey Rights Considered

5.41     In its Consultation Paper, the Commission noted that the general tendency has been to confer all four rights elucidated by Ó Dálaigh CJ in In re Haughey on individuals or bodies who are granted representation. The Commission considered that a more tailored approach should be taken to this issue. It noted that as tribunals of inquiry have the power to determine the minutiae of the procedural protection that must be afforded to a person appearing before it, they should have regard to the particular circumstances of each case in determining whether one or all of these rights should apply. With this in mind, it is proposed to examine each of the four In re Haughey rights in turn.

(I) Allegations and Potential Criticism

5.42     The right to advance notice of allegations and criticisms levelled against an individual or body may be said to be one of the most basic rights identified in In re Haughey. In the Consultation Paper, the Commission noted the practice in the United Kingdom to issue witnesses with "notices of potential criticism" setting out the allegations and criticisms made against them.^[25]

5.43     The Commission notes that "notices of potential criticism" were also used by the English Hutton Inquiry. The Hutton Inquiry was established following the apparent suicide of Dr David Kelly, a Ministry of Defence civil servant and advisor, who had become embroiled in a row over BBC reports on the war with Iraq.^[26] The Inquiry, chaired by Lord Hutton, was not an inquiry invested with the powers in the 1921 Act.

5.44     Lord Hutton conducted the Inquiry in two stages. The first stage was the information gathering stage. This was devoted to obtaining an account of the events which took place from those who took part in them. At the conclusion of this stage, Lord Hutton retired to consider the evidence given. He then notified by private letter the relevant persons of possible criticisms which he considered might be

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made against them. He asked those persons whether they accepted or rejected these criticisms.

5.45     During the second stage, the persons against whom the criticisms were made were given the opportunity, if they so wished, to give further oral evidence, and to make oral and written submissions. In addition, other parties who did not give evidence in stage one, but who were identified in stage one as persons possessing relevant information, were asked to give evidence. Furthermore, counsel for the represented parties were given the opportunity to cross-examine witnesses for other parties. This was designed to elicit evidence which might enable those parties to answer criticisms made of them, or to suggest further criticisms for other witnesses. At the conclusion of the second stage, Lord Hutton retired to prepare his report.

5.46     Although the Hutton Inquiry was not a tribunal of inquiry conferred with the powers in the 1921 Act the Commission considers that its approach to the issue of fair procedures, in particular its use of a two stage approach, whereby witnesses are initially examined by counsel for the inquiry and then where relevant issued with notices of potential criticism and accorded representation, the right to cross examine and so forth, reflects longstanding practice in relation to tribunals under the 1921 Act and should be followed in appropriate cases.

5.47     The Commission recommends that in appropriate cases, witnesses may either be issued with notices of potential criticism, or be re-called (or provide a written statement) in order to address potential criticism that has come to light since they gave evidence.

(II) Examination and Cross-examination

5.48     Ordinarily, the procedure before tribunals of inquiry is that a witness is examined by counsel for the tribunal, then cross examined by interested parties, then examined by his or her own lawyer, if the witness is represented, followed by a re-examination by counsel for the tribunal. Usually, the Chairperson or members of the tribunal will ask questions throughout this process.

5.49     In relation to the right to cross-examine witnesses, the Commission noted in the Consultation Paper that this should not be

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taken to be an automatic right.^[27] Implicit in the inquisitorial nature of tribunals is a recognition that the examination and cross-examination of every witness by every represented party, in addition to counsel for the tribunal, is not appropriate. In some cases, examination of witnesses by counsel for the inquiry may be sufficient.

5.50     The Commission sees no reason to depart from this view. Nonetheless, the Commission acknowledges that the right to crossexamine in appropriate situations is particularly important where a person's rights are at issue, whether the person is in the position of a potential accused or their good name or reputation is at issue. As Hardiman J stated in Maguire v Ardagh:^[28] "Cross-examination adds considerably to the length of time which proceedings will take. But it is an essential, constitutionally guaranteed, right which has been the means of the vindication of innocent people… It must be firmly understood that, when a body decides to deal with matters as serious as those in question here, it cannot (apart from anything else) deny to persons whose reputations and livelihoods are thus brought into issue, the full power to cross-examine fully, as a matter of right and without unreasonable hindrances. This, of course, is not to deny to any tribunal the right to control prolixity or incompetence if that is manifested."^[29]

5.51     On this basis, the Commission recommends that tribunals must ensure that appropriate cross-examination is provided for where the rights of an individual, including good name and reputation, are at issue. The Commission also recommends that this should not in any way restrict the right of a tribunal to control prolixity or crossexamination by successive counsel.

5.52     The Commission recommends that tribunals must ensure that appropriate cross-examination is provided for where the rights of an individual, including good name and reputation, are at issue. The Commission also recommends that this should not in any way restrict

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the right of a tribunal to control prolixity or cross-examination by successive counsel.

5.53     In the Consultation Paper, the Commission recommended that uncontested evidence should be simply "read into" the record where all the interested parties consent, with a written account of the evidence being, where appropriate, posted on a tribunal's website or circulated to parties present at the hearing.^[30] This it was felt would satisfy the requirement imposed on tribunals of inquiry by section 2(a) of the 1921 Act to conduct proceedings in public. The Commission sees no reason to depart from its earlier view. However, the Commission wishes to stress that the decision to read in evidence should not be taken lightly, it should be noted that even where the evidence is uncontested and all the interested parties consent to it being read in, there may be merit to having the particular witness give his or her evidence in their own words, rather than reading in an affidavit or document drafted with the aid of a solicitor or some other person.

5.54     The Commission recommends that where appropriate uncontested evidence should be simply "read into" the record.

(III) The Right to Call Evidence in Rebuttal

5.55     The right to call evidence in rebuttal is the third protection referred to in In re Haughey. This does not create a difficulty in relation to written evidence of rebuttal as all witnesses before a tribunal of inquiry are the inquiry's witnesses, and it is not possible for an individual to call witnesses to give evidence on his or her behalf.^[31] Provided an inquiry calls all the witnesses who may give evidence to rebut allegations made against an interested party, there is no danger of an inquiry infringing a person's constitutional protection. In this respect, it should be noted that there is nothing to prevent an interested party from suggesting to the inquiry whom should be called and what information they may have. Accordingly, the Commission recommends that parties be encouraged to inform the inquiry of the existence of useful potential witnesses.

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5.56     The Commission recommends in the context of the right to call evidence in rebuttal, that parties be encouraged to inform the inquiry of the existence of useful potential witnesses.

(IV) Submissions

5.57     The fourth protection referred to in In re Haughey is the right to address the inquiry. This right is similar to the right to examine and cross-examine witnesses and the same considerations apply. As a result, a tribunal should adopt a tailored approach, which would enable it to administer an inquiry as efficaciously as possible and yet still furnish the appropriate constitutional protection. This could involve, for example placing indicative time limits on submissions. Support for this conclusion may be drawn from the judgment of Geoghegan J in O'Callaghan v Mahon where he stated: "A tribunal is also perfectly entitled … to try as far as possible to discipline counsel and the witnesses so that the evidence at any given time is confined to the evidence relevant to that module."^[32]

5.58     The Commission recommends that tribunals of inquiry adopt a tailored approach to the right to make submissions to the inquiry which could include placing indicative time limits on submissions while ensuring that the full constitutional protection of fair procedures is furnished.

E Other Procedural Issues, including Publicity and Broadcasting

(1) Preliminary Investigations

(a) Purposes and Functions

5.59     Section 2(a) of the Tribunals of Inquiry (Evidence) Act 1921 lays down a basic rule in favour of the proceedings of a tribunal being heard in public. It provides: "A tribunal to which this Act is so applied as aforesaid-

(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal

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unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given…"

5.60     However, many tribunals of inquiry conduct preliminary investigations in private before proceeding to the public stage of their proceedings. Such preliminary investigations depend on the cooperation of the individuals asked to participate in the process, as tribunals of inquiry have no powers of compulsion at the information gathering stage.^[33]

5.61     The information gathering stage was recognised by the Supreme Court in Haughey v Moriarty.^[34] In O'Callaghan v Mahon ^[35] the Supreme Court considered the information gathering stage. Hardiman J accepted that tribunals had the authority to engage in a preliminary investigation to identify issues meriting further investigation at public hearings. However, he stated that it did not have express authority to embark on an information gathering stage in private, in which statements would be obtained by voluntary cooperation, irrelevant material excluded and voluntary cooperation of potential witnesses obtained. However, Hardiman J considered that the absence of such an express power would not of itself render such a process unlawful as the Courts have repeatedly held that tribunals are masters of their own procedures.

5.62     In O'Brien v Moriarty, ^[36] the Supreme Court outlined the rationale of the information gathering stage as follows:

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"Tribunals of inquiry, however, necessarily have to conduct much of their initial investigations in private. This is both for practical reasons and to protect the interests and confidentiality of persons assisting the Tribunal in its work. Furthermore, it enables the Tribunal to decide that a particular matter does not warrant a public hearing." ^[37]

5.63     The Commission accepts that it will not be necessary for all inquiries to utilise a preliminary investigation process. Nevertheless, it recommends that where appropriate tribunals of inquiry should utilise an information gathering process and that the tribunals of inquiry legislation should be amended to make express provision for this.

5.64     The Commission recommends that the tribunals of inquiry legislation should be amended to make express provision for a preliminary investigation stage.

(b) Impact of Constitutional Justice

5.65     Having set out the functions of the information gathering stage the Commission now turns to consider the extent to which the procedural requirements indicated in In re Haughey apply to the private information gathering stage.

5.66     In order to understand the application of the principles of constitutional justice to the information gathering process, it is important to set out the difference between "information" and "evidence."^[38] The Commission defines evidence as material from which the inquiry is entitled to draw conclusions of fact and to make recommendations. Information, on the other hand, may be defined as material obtained in private on the basis of which the inquiry may make immediate decisions as to relevance and how it intends to suggesting that the tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular citizen. It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal is not obliged to hold a private inquiry before proceeding with its public inquiry."

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organise the inquiry. Information is intended to provide focus to the investigation.

5.67     In the Consultation Paper, the Commission envisaged that material gathered in the information gathering stage would only become evidence in two exceptional circumstances, first where statements obtained in the information gathering stage are read into the record, and second, where the information gathered at the preliminary stage differs from the evidence given at the public hearings. In such circumstances, the Commission considered that the information should be admitted to the extent that it affects the credibility of the witness.

5.68     The Commission considers that in light of the private nature of the information gathering stage and its purpose the rules of constitutional justice would not apply.

(c) Written Protocol

5.69     The use of private meetings as part of the informationgathering phase is a matter, which has been drawn to the Commission's attention on a number of occasions during the consultation period. By private meetings the Commission means preliminary meetings in which potential witnesses and those with relevant information are usually invited to meet with counsel for the tribunal in order to discuss confidentially the matters under investigation. The Commission has been informed that the Chairperson rarely attends such meetings. Such meetings, which are mostly recorded, tend to be followed by formal requests for information.

5.70     The Commission is aware that the experience of some participants in these meetings has been mixed. Some view these meetings as a positive development, a sort of informal discussion, which breeds trust. Others have been critical of the way in which supposedly confidential information obtained at such meetings has been used in later hearings.

5.71     The Commission is conscious of the need for private meetings in order to allow counsel for tribunals to filter information, but considers that in light of the mixed experience of some participants, such meetings ought to be governed by a written protocol. Such a protocol would set out the rights and duties of those

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participating in such meetings and inform those present of the manner in which such information can be used. The Commission also recommends that the Chairperson of the inquiry exercise a greater degree of oversight over the manner in which such meetings are being conducted. The Commission recommends that where individuals are accompanied by lawyers at these private meetings their costs should be recoverable as expenses.

5.72     The Commission recommends that private preparatory meetings be governed by a written protocol. Such a protocol would set out the rights and duties of those participating in such meetings and inform those present of the manner in which such information can be used. The Commission also recommends that the chairperson of an inquiry should exercise a greater degree of oversight over the manner in which such meetings are being conducted.

(d) Investigators

5.73     Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 2002 "the 2002 Act" provides tribunals of inquiry with the power to appoint investigators to carry out "preliminary investigations" in relation to any matter material to the terms of reference of the inquiry.

5.74     Section 6(4) confers a number of powers on investigators. These include the power to require a person to:

• "Give to him or her such information in the possession, power or control of the person as he or she may reasonably request,

• Send to him or her any documents or things in the possession, power or control of the person that he or she may reasonably request, or

• Attend before him or her and answer such questions as he or she may reasonably put to the person and produce any documents or things in the possession, power or control of the person that he or she may reasonably request, and the person shall comply with the requirement." It is important to note that there is no requirement on a person appearing before an investigator pursuant to section 6(4) to provide a sworn statement to the investigator. Section 6(7) provides that a person appearing before an investigator is entitled to the same

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privileges and immunities as witnesses appearing before the High Court.

5.75     Section 6(5) of the 2002 Act provides that an investigator may examine a person mentioned in relation to any information, documents or things mentioned and may reduce the answers of the person to writing and require the person to sign the document containing them. Section 6(6) provides that where a person fails or refuses to comply with a requirement made by an investigator under section 6(4), the Court may, on application to it in a summary manner in that behalf made by the investigator with the consent of the tribunal concerned, order the person to comply with the requirement and make such other order as it considers necessary and just to enable the requirement to have full effect.

5.76     Section 7 makes it an offence to obstruct or hinder an investigator in the course of his or her work.

5.77     The 2002 Act is silent on the role, if any, of the investigators in sifting the material collected by them. Section 6(8) clearly suggests that the material is to be disclosed to the tribunal. In the Consultation Paper the Commission considered that given the inquisitorial nature of tribunals of inquiry it is a matter for the inquiry, and not the investigators, to decide on the relevance or otherwise of material collected by investigators during the preliminary investigative stage.

5.78     In the Consultation Paper the Commission recommended no change to the provisions dealing with preliminary investigations and the Commission sees no reason to depart from this view.

5.79     The Commission recommends that the provision of section 6 of the Tribunals of Inquiry (Evidence)(Amendment) Act 2002, which deal with the appointment of investigators to carry out preliminary examinations, should be retained in the tribunals of inquiry legislation.

(2) Publicity

(a) Introduction

5.80     The Commission now turns to examine the extent to which tribunals of inquiry should conduct their business in public.

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5.81     In considering this question, the Commission is conscious that section 2(a) of the 1921 Act currently contains a presumption of conducting hearings in public by providing that such tribunals are under an obligation not to refuse to allow the public to be present at the hearings of the inquiry unless it is in the public interest not to do so. Other inquiries, on the other hand, whether they are set up by an organ of state or a private individual or body, are under no such obligation. Indeed, in contrast, section 11 of the Commissions of Investigation Act 2004 provides that a commission of investigation which are under a duty to conduct its proceedings in private unless (1) the witness requires that his or her evidence be given in public and the commission consents to that request; or (2) the commission is satisfied that it is desirable in the interests of both the investigation and fair procedures to hear all or part of the evidence in public.

(b) Constitutional Requirements

5.82     As the Commission has noted, a tribunal of inquiry is not a court. Therefore, the duty imposed on the courts by Article 34.1 of the Constitution, that justice shall be administered in public, has no application to tribunals of inquiry.

(c) Tribunals of Inquiry (Evidence) Act 1921

5.83     Section 2(a) of the 1921 Act states that: "a tribunal shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given and, in particular, where there is a risk of prejudice to criminal proceedings." Thus, the inquiry is placed under a positive obligation to admit the public to be present at the "proceedings of the inquiry" unless it is justified in excluding them under one of the three headings contained in the section.

5.84     The Supreme Court explained the meaning of the phrase "proceedings of the tribunal" in Haughey v Moriarty.^[39] Having identified the five stages of a tribunal of inquiry, namely the

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preliminary investigation, the determination of the relevant evidence, the service of such evidence on the relevant parties, the public hearing and the preparation of the final report, the Court concluded that section 2(a) applied only to the fourth stage, the public hearing of evidence and cross-examination.^[40]

(d) Policy Underpinning the Legislation

5.85     The policy underpinning section 2(a) is that in order for the public to have confidence in an inquiry set up to inquire into matters of definite public concern, it is necessary for the hearings of the inquiry to be conducted in public. This view has been endorsed by the Irish courts on a number of occasions, which are discussed comprehensively in the Consultation Paper.^[41]

(e) Consultation Paper Recommendation

5.86     The Commission in the Consultation Paper agreed with the view that in order for public inquiries to maintain public confidence, they should be conducted, where possible, in public. The Commission in the Consultation Paper therefore recommended that the pro-publicity policy inherent in section 2(a) of the 1921 Act should be retained.

(f) Advantages and Disadvantages of Public Hearings

5.87     The main advantages of conducting an inquiry in public are as follows. First, it ensures public confidence in the inquiry and its conclusions. This is particularly important where there is a crisis of public confidence in the persons or matters under investigation. Secondly, conducting an inquiry in public enables the public to reach its own judgement on the matters under investigation. Thirdly, witnesses may be less inclined to mislead the inquiry or fail to cooperate with the inquiry if the hearings are conducted in public.

5.88     However, conducting an inquiry in public is not without its disadvantages. First, it could be argued that such inquiries tarnish the reputations and characters of individuals by airing what might eventually prove to be baseless accusations in public. According such

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individuals the full protection of constitutional justice and eventual vindication will provide scant protection from taunts of "no smoke without fire." However, as the Supreme Court held in Redmond v Flood,^[42] where the Oireachtas has deemed it necessary to establish a tribunal, "the exigencies of the common good may outweigh the constitutional right to privacy."^[43] The Court concluded that it "is of the essence of such inquiries that they be held in public for the purpose of allaying the public disquiet that led to their appointment."^[44] Secondly, it could be argued that certain key witnesses might be reluctant to testify before a public hearing. However, this is a problem which could easily be solved by giving the inquiry compellability powers. Having considered these arguments, the Commission has concluded that the view it took in the Consultation Paper is correct and that the general approach in section 2(a) of the 1921 Act should be retained, subject to a clarification that this does not apply to the information gathering stage, as held by the Supreme Court in Haughey v Moriarty.^[45]

(g) Recommendation

5.89     The Commission recommends that the proceedings of tribunals of inquiry should in general be conducted in public, in accordance with the approach currently contained in the tribunals of inquiry legislation, but that this should be clarified in line with the view taken by the Supreme Court that this does not apply to any information gathering stage.

(3) Broadcasting

5.90     The Commission now turns to consider whether the media ought to be permitted to broadcast the public proceedings of a tribunal of inquiry. While section 2(a) of the 1921 Act deals with the public's right to be physically present at the tribunal hearings, it does not deal directly with the issue of broadcasting.

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5.91     In its Report on Contempt of Court,^[46] the Commission outlined in detail the advantages and disadvantages of broadcasting, albeit as it applied to courts, and concluded that "an advisory committee be established to review the arrangements for, and the provisions relating to, the recording and broadcasting of court proceedings by the media."^[47] The Commission recommended that the advisory committee should also consider the desirability of permitting the broadcasting of the proceedings of tribunals of inquiry.^[48]

(a) The Present Law

5.92     As was noted in the Consultation Paper, subject to the Constitution and other appropriate laws, the inquiry has an inherent right to govern its own procedures, including presumably the power to allow the public hearings of the inquiry to be broadcast.^[49]

5.93     It is perhaps arguable that section 2(a) of the 1921 Act in fact covers broadcasting. Thus, it is possible that the term "public or any portion of the public" in section 2(a) includes the audiovisual media as well as the print media. It is therefore at least arguable that section 2(a) places the obligation on the inquiry to justify its refusal to admit the audiovisual media together with their equipment under the three headings in section 2(a).^[50]

(b) Consultation Paper Recommendation

5.94     Having concluded in the Consultation Paper that section 2(a) of the 1921 Act did not, however, extend to broadcasting, the Commission recommended that section 2(a) should be amended to include a provision expressly allowing the filming, recording or broadcasting of the proceedings of the tribunal, the details of which would be subject to a protocol. In determining whether to allow the filming, recording or broadcasting of proceedings, the tribunal would

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have regard to the public interest, the conduct of the proceedings, the interests of the participants, the risk of prejudice to criminal proceedings and any other relevant considerations.

(c) Impact of the ECHR

5.95     The Irish courts have yet to consider the effect of the European Convention of Human Rights (ECHR) on the interpretation of section 2(a) of the 1921 Act. Since the enactment of the European Convention on Human Rights Act 2003, Irish courts must, in interpreting, and applying any statutory provision or rule of law, insofar as it is possible, do so in a manner compatible with the State's obligations under the ECHR.

5.96     Article 10(1) of the ECHR provides that the right to freedom of expression includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 10(2) provides that any restrictions on this right may only be those that are, "necessary in a democratic society."

5.97     It could be argued that in recognising the right "to receive and impart information" Article 10(1) creates a right to broadcast the proceedings of an inquiry, a right that can only be restricted in accordance with Article 10(2). Although the Irish courts have yet to rule on the effect, if any, that Article 10 has on the interpretation of section 2(a), the matter has been considered on a number of occasions in the United Kingdom, albeit by the chairpersons of inquiries.

5.98     Dame Janet Smith, chairperson of the independent public inquiry into issues arising from the case of the serial killer Harold Shipman, considered the question of whether a failure to allow a television company leave to broadcast the evidence of witnesses in a court or before a public inquiry constituted a breach of Article 10. She concluded that it did not. She said that Article 10 does not guarantee the right to receive information, which is in the possession or control of one who does not wish to impart it. As a result, she stated that insofar as an inquiry is in control of certain information, it is for those who wish to broadcast such information to request permission to receive it, rather than to assert a right to receive it. However, this decision was not the subject of judicial reviewed, so the courts did not get an opportunity to express their opinion on it. It is worth noting that a similar approach was taken by Lord Hutton

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when he delivered his decision on a similar application during the Hutton Inquiry, though this was not an inquiry under the 1921 Act.^[51]

(d) Discussion

5.99     The arguments for and against broadcasting were discussed in detail in the Consultation Paper,^[52] and the Commission can deal with this issue concisely here.

(I) Arguments For

5.100     The main argument in favour of allowing the proceedings of inquiries to be broadcast is an extension of the policy underlining section 2(a) of the 1921 Act, namely that it is only when the public can see what is being done that they will have confidence that everything possible has been done in order to arrive at the truth. Broadcasting ensures that the maximum number of people, not just the limited number who manage to obtain seating in the hearing room, can observe the proceedings of the tribunal. In this sense, broadcasting is simply an extension of the current process whereby print journalists report on the day-to-day proceedings of the tribunal. (II) Arguments Against

5.101     The main argument advanced by opponents of broadcasting is the effect that broadcasting would have on witnesses. It is argued that the possibility of being broadcast on national television might deter some witnesses from coming forward or cooperating with the inquiry. Secondly, that the broadcasting of proceedings will place great strain on witnesses, particularly where the inquiry relates to matters of great public interest. Thirdly that witnesses might be more circumspect in their comments if the proceedings are broadcast.

5.102     Aside from the potential effect on witnesses, it is also argued that to allow the broadcasting of proceedings could have an adverse impact on proceedings, in particular that by only reporting sensational or newsworthy parts of the evidence it could give a distorted impression of the proceedings.

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(e) Recommendation

5.103     The Commission accepts that there are strong arguments on either side of this debate, and that it would not serve the public interest to state definitively that the media be allowed to broadcast all tribunals proceedings or, alternatively, that they should be prohibited in all cases. Instead the Commission recommends that this should be a matter for the exercise of discretion by the relevant tribunal chairperson, or sole member, taking into account the criteria referred to by Dame Janet Smith during the Shipman Inquiry. The Commission accordingly recommends that the tribunals of inquiry legislation be amended to allow such broadcasting, as the tribunal considers appropriate, having regard to a number of criteria.

5.104     The Commission therefore recommends that the tribunals of inquiry legislation be amended to allow a discretion to permit broadcasting of its proceedings on the basis that in deciding whether to allow filming, recording, or broadcasting of the proceedings of the tribunal, the tribunal shall have regard to the following considerations:

(i) the interests of the general public, particularly the right to have the best available information on matters of urgent public importance;

(ii) the proper conduct and functioning of the tribunal proceedings;

(iii) the legitimate interests of the participants;

(iv) the risk of prejudice to criminal proceedings;

(v) any other relevant considerations.

5.105     The Commission recommends that the tribunals of inquiry legislation be amended to allow a discretion to permit such broadcasting of its proceedings as the tribunal considers appropriate on the basis that in deciding whether to allow filming, recording, or broadcasting of the proceedings of the tribunal, the tribunal shall have regard to the following considerations:

• the interests of the general public, particularly the right to have the best available information on matters of urgent public importance;

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• the proper conduct and functioning of the tribunal proceedings;

• the legitimate interests of the participants;

• the risk of prejudice to criminal proceedings;

• any other relevant considerations.

(4) Evidence taken on Commission

5.106     The Consultation Paper contained a detailed examination of the law relating to evidence taken on commission abroad pursuant to section 1(c) of the Tribunals of Inquiry (Evidence) Act 1921.^[53] Evidence is taken on commission where the chairperson of the inquiry appoints a commissioner to go outside of the jurisdiction to take statements from witnesses. Such statements do not become evidence until they are formally read into the record at a public sitting of the tribunal.

5.107     The Commission recommended two changes to the law in this respect. The first related to the requirement that the evidence be taken abroad. The Commission considered that this requirement was unduly restrictive and hampered inquiries seeking to appoint commissions to take evidence from persons who are unwell within the State, otherwise than in public session.

5.108     The second change recommended related to the manner in which such evidence is read into the record. The Commission considered that the current practice whereby evidence taken on commission must be physically read into the record was unduly cumbersome and a waste of time and resources. The Commission recommended that a much better approach would be to provide that the obligation concerning hearings in public would be satisfied by the circulation to the public present at the proceedings of the tribunal of a copy, in writing, of the statement that is being adduced as evidence where the evidence was taken on commission.

5.109     In addition, the Commission recommended that this procedure be utilised in two other situations, first, where a witness is giving oral evidence and the written statement forms only part of the evidence and secondly, where the written statement of a witness is not

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in dispute and the tribunal does not proposes to call the witness to give oral evidence. The Commission sees no reason to depart from its recommendations in this respect.

5.110     The Commission recommends that the tribunals of inquiry legislation be amended to allow evidence to be taken on commission within the jurisdiction as well as abroad. In addition, the Commission recommends that the obligation to conduct hearings in public would be satisfied by the circulation to the public present at the proceedings of a copy, in writing, of the statement that is being adduced as evidence, where:

(i) a witness is called to give oral evidence and the written statement forms part only of his or her evidence; or

(ii) the written statement of a witness is not in dispute between those persons who have been authorised by the tribunal to be represented at the part of the proceedings at which it is being adduced and the tribunal does not propose to call the witness to give oral evidence."

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[BLANK]

Note 1    [1971] IR 217.     [Back]

Note 2    [1999] 3 IR 1.     [Back]

Note 3   [1999] 3 IR 1, 74    [Back]

Note 4   See the Consultation Paper, Chapters 7-9.     [Back]

Note 5   Section 2 of the Tribunals of Inquiry (Evidence) Act 1921.     [Back]

Note 6   Supreme Court 24 November 2000. See also O’Callaghan v Mahon Supreme Court 9 March 2005; Desmond v Moriarty [2004] 1 IR 334; Finnegan v Flood [2002] 3 IR 47; Bailey v Flood Supreme Court 14 April 2000.    [Back]

Note 7   Flood v Lawlor Supreme Court 24 November 2000, at 6.    [Back]

Note 8   See paragraphs 2.11 - 2.16, above.     [Back]

Note 9   See the Consultation Paper at paragraph 7.63.     [Back]

Note 10   Brady, “Tribunals and Politics: A Fundamental Review” Contemporary Issues in Irish Law and Politics No 3 at 165.     [Back]

Note 11   See the Consultation Paper at paragraph 7.64.    [Back]

Note 12   See paragraph 2.47 ff, above.     [Back]

Note 13    [1971] IR 217. See the Consultation Paper at paragraph 7.14.     [Back]

Note 14    [1971] 1R 217, 263-264.    [Back]

Note 15    [1999] 3 IR 107.     [Back]

Note 16   Ibid at 143.     [Back]

Note 17   Supreme Court 9 March 2005.     [Back]

Note 18   Ibid at 3.    [Back]

Note 19   [1993] 1 IR 210. This account is based on the analysis in the Consultation Paper at paragraphs 7.20-7.22, which the Commission considers is worth reiterating in this report.     [Back]

Note 20    [1993] 1 IR 210, 222.     [Back]

Note 21    [1971] IR 217, 264.     [Back]

Note 22   See paragraph 5.37 below.     [Back]

Note 23   See the Report on the disaster at Whiddy Island Bantry Co Cork on 8th January 1979 (Government Publications 1980) at paragraph 1.7.1.     [Back]

Note 24    [1993] IR 210, 219. See paragraph 5.22 above.     [Back]

Note 25   These are also known as “Salmon Letters.” See the Consultation Paper at paragraph 7.46.     [Back]

Note 26   See generally, the Hutton Inquiry’s website http://www.the-huttoninquiry. org.uk/index.htm.     [Back]

Note 27   See the Consultation Paper at paragraph 7.54.     [Back]

Note 28    [2002] 1 IR 385.    [Back]

Note 29   [2002] 1 IR 385, 707.     [Back]

Note 30   See the Consultation Paper at paragraph 7.52.    [Back]

Note 31   See the Consultation Paper at paragraph 7.60.     [Back]

Note 32   Supreme Court 9 March 2005, at 4-5.    [Back]

Note 33   Per O’Brien v Moriarty Supreme Court 12 May 2005, at 14.     [Back]

Note 34    [1999] 3 IR 1, 74.    [Back]

Note 35   Supreme Court 9 March 2005.    [Back]

Note 36   Supreme Court 12 May 2005. See also Redmond v Flood [1999] 3 IR 79, 94 where Hamilton CJ stated: “An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, is a public inquiry. The Court in the passage quoted [from Haughey v Moriarty [1999] 3 IR 1, 74] accepted that it was proper for a tribunal to hold preliminary investigations in private. This would enable the Tribunal, inter alia, to check on the substance of the allegations and in this way would protect the citizens against having groundless allegations made against them in public. But the Court was not     [Back]

Note 37   Judgment of Fennelly J, at 14.     [Back]

Note 38   See the Consultation Paper at paragraphs 9.03-9.14.     [Back]

Note 39    [1999] 3 IR 1.     [Back]

Note 40   [1999] 3 IR 1, 74-75. See paragraph 5.02 above and the Consultation Paper at paragraph 8.13.     [Back]

Note 41   See paragraphs 8.01- 8.09 of the Consultation Paper.    [Back]

Note 42    [1999] 3 IR 79.     [Back]

Note 43   [1999] 3 IR 79, 88.    [Back]

Note 44   [1999] 3 IR 79, 88     [Back]

Note 45   [1999] 3 IR 1.    [Back]

Note 46   (LRC 47-1994).    [Back]

Note 47   (LRC 47-1994) at paragraph 4.49.    [Back]

Note 48   Ibid. For a general overview, see McGonagle Media Law (2nd ed Thomson Round Hall 2003) paragraph 7.1.4    [Back]

Note 49   See the Consultation Paper at paragraph 8.47.    [Back]

Note 50   Namely, that it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry, the nature of the evidence to be given or where there is a risk of prejudice to criminal proceedings.     [Back]

Note 51   Ruling on applications to broadcast the inquiry (5th August 2003.) http://www.the-hutton-inquiry.org.uk/content/rulings/ruling01.htm    [Back]

Note 52   See the Consultation Paper at paragraphs 8.45-8.60.     [Back]

Note 53   See the Consultation Paper at paragraph 8.37-8.44.     [Back]